ACQUIRING TITLE BY ADVERSE POSSESSION

Oregon Revised Statute (ORS) 105.620 sets out the elements required to obtain title to property through adverse possession.

(1) A person may acquire fee simple title to real property by adverse possession only if:

(a) The person and the predecessors in interest of the person have maintained actual, open, notorious, exclusive, hostile and continuous possession of the property for a period of 10 years;

(b) At the time the person claiming by adverse possession or the persons predecessors in interest, first entered into possession of the property, the person entering into possession had the honest belief that the person was the actual owner of the property and that belief:

(A) By the person and the persons predecessor in interest, continued throughout the vesting period;

(B) Had an objective basis; and

(C) Was reasonable under the particular circumstances; and

(c) The person proves each of the elements set out in this section by clear and convincing evidence.

(2)(a) A person maintains hostile possession of property if the possession is under claim of right or with color of title. Color of title means the adverse possessor claims under a written conveyance of the property or by operation of law from one claiming under a written conveyance.

(b) Absent additional supporting facts, the grazing of livestock is insufficient to satisfy the requirements of subsection (1)(a) of this section.

Oregon’s elements are slightly different because of the “honest belief” element. In other words, if you knew you possessed someone else’s property, then you couldn’t have an honest belief that it was your own property and your claim fails.

Also, 2(b), the grazing of livestock doesn’t constitute “USE.” It must be more use. There are so many rural lands in Oregon where owners put up barbed wire fencing without the benefit of a surveyor for the purpose of grazing cattle. That situation doesn’t create adverse possession.

The burden of proof is on the person trying to acquire title by adverse possession. You must prove by “clear and convincing” evidence which is a very high standard.

The vesting period is 10 years. Therefore, it can’t be that you used the property for 9 years and 11 months. It must be 10 years or more.

Your use must be continuous. It can’t be that you used it 5 years and then a few years went by without using the land and then you move back and use it 5 more years.

In addition, you cannot get adverse possession against a government owned property. You can sit on government land for 10 years, continuously, openly, etc. but you can’t take it by adverse possession.

Your possession and use must be “open” meaning that it can’t be hidden where there is no chance for anyone to know of your use.

The owner of the land cannot have given you “permission” at some point. If you have “permission” then the use is not hostile, but permissive use. You can’t get adverse possession of land where the real owner has given you permission to use their land.

If you are successful in bringing a claim for adverse possession and can meet each and every element required, then a Circuit Court Judge can grant you the disputed area and you will become the new owner of the land.

Two tips:

Tip 1: Be sure to have the disputed area surveyed and a legal description created for the disputed area. Then have your surveyor create the new legal description for the land that the disputed area is being added to and the new legal description where the disputed area is being taken away from. Your proposed judgment should include an order that requires the recording of these new legal descriptions.

Tip 2: Use Google Earth history to provide you with aerials of exactly what is going on with the property and the disputed area from the various years in which Google Earth photographed the property. It’s great evidence!

For help with adverse possession claims or claims for prescriptive easement, easement disputes, boundary disputes, contact Deborah K. Vincent who is quite knowledgeable in this area of law.

 

Comments are closed.

Site Development by West Design