Understanding Adverse Possession in Oregon
In plain language, adverse possession is a way that one person—the “adverse possessor”—may obtain property rights over real estate, which is titled in the name of another person, even though they were never on title and never paid property taxes. Adverse possession is a legal theory and will not be readily accepted as proof of ownership of property by a title company or the government.
To obtain proof of ownership by adverse possession, the adverse possessor must either prove their case in court or negotiate a settlement with the opposing property owner which acknowledges the adverse possessor’s ownership of the real estate at issue.
Adverse possession is not self-executing--i.e., the person who wants to obtain property rights by adverse possession must take action to formalize any property rights they believe they have obtained. Otherwise, the deed's legal description will govern.
In a legal dispute, adverse possession can be used offensively or defensively. “Offensive” use of adverse possession means one person claims to have obtained ownership of another person’s property through adverse possession. “Defensive” use of adverse possession means defending against an adverse possessor’s claim of ownership of property by showing that the adverse possessor cannot prove their case.
In adverse possession cases, a party normally may not recover attorney fees in court, even if they are victorious. This is true even though adverse possession disputes can be highly contentious and involve significant legal expenses in certain cases.
Until 1989, a common-law adverse possession claim required the adverse possessor to prove by clear and convincing evidence that they could prove the following requirements:
- Actual possession; and
- The possession was
- open and notorious;
- exclusive;
- hostile; and
- continuous over a 10-year vesting period.
Each of these terms has been defined by Oregon caselaw. Whether you can prove an adverse possession claim depends on whether you can gather and persuasively present admissible evidence which satisfies each of these requirements. What these terms mean is highly dependent on the facts and history involved. It is not always clear at the outset whether a case is provable or not, and it can sometimes take significant research to evaluate the strengths and weaknesses of a case.
In a case where adverse possession is an issue, careful research should be performed in order to obtain and organize historical evidence which can help prove or disprove an adverse possession claim (depending on which side you are on).
It is still possible to prove an adverse possession claim based on a theory that someone’s property rights vested decades ago under the common-law theory of adverse possession if the property rights were vested before 1990. A case brought under a theory of common-law theory of adverse possession would require gathering and presenting admissible historical evidence to prove all the requirements listed above.
In 1989, the Oregon legislature passed ORS 105.620, which codified the common-law requirements of adverse possession but added the additional requirement that the adverse possessor had to have an honest belief in their ownership. Claims of adverse possession brought under ORS 105.620 are called statutory adverse possession claims to distinguish them from the common-law adverse possession claims.
Under a claim of common-law adverse possession, the adverse possessor may or may not honestly believe that they own the real estate at issue. In contrast, under a statutory adverse possession claim, the adverse possessor must honestly believe that they own the real estate at issue or else they cannot win.
It is important to bear in mind that title insurance does not typically insure buyers against a loss of their property based on a neighbor’s adverse possession. Standard title insurance policies will have an exception in owner’s policies that the title insurance will not insure against matters “that a correct survey would disclose.”
In practice, this means when you are buying property, you can and should pursue your due diligence very carefully, including having a survey done and walking through the property and looking for potential issues to investigate. Adverse possession is not something a title report will show. Oftentimes, a property owner or purchaser will assume certain property lines exist based on lines of occupation.
A "line of occupation" refers to feature of a property such as fencing, a wall, or landscaping, which people commonly assume were built based on the correct property line. However, it is not uncommon for lines of occupation to be ambiguous, and for lines of occupation to be established for reasons unrelated to the property line or based on mistaken beliefs about the location of the property line.
On the north coast of Oregon, we see adverse possession claims raised in negotiations, when litigation is threatened, or in actual litigation. When an adverse possession claims goes to court on the north coast, it will be heard in either Clatsop County Circuit Court or Tillamook County Circuit Court, depending on the location of the property. An adverse possession claim would be decided by a judge in a court trial, not by jurors in a jury trial.
A legal determination of whether a party has obtained ownership of property by adverse possession requires a formal lawsuit in court if there is a disagreement between the parties. The cost of an adverse possession lawsuit depends on the details, including the nature of the dispute, the available evidence, and the desired outcome.
The law of adverse possession in Oregon will differ from adverse possession in other states. Each statute may have its own common law, statutes, and historical precedent which govern how a particular case involving adverse possession plays out. Even neighboring states like Washington, California, and Idaho may have adverse possession law which would lead to a different outcome compared to Oregon.
Adverse possession is not something which a title company, realtor, mortgage broker, or seller will necessarily know about. However, depending on the facts involved, a seller may need to disclose facts which indicate an adverse possession issue, so a buyer should carefully review disclosure forms when buying real estate.
If you have concerns about adverse possession, please contact Coast Land Law for a consultation about how you can best protect your property rights. We have filed adverse possession cases and defended against them, as well. We can help you protect your rights.
