Are You at Risk for Losing Part or All of Your Property Through Adverse Possession?
Imagine finding out that a part of your backyard—where your family has picnicked for years—might not actually belong to you. Could someone else claim it as their own through adverse possession? It’s a situation no property owner wants to face, yet it’s more common than you might think
In general, most people believe they know the boundary line of their property. However, adverse possession claims most often arise when a person begins by obtaining a survey of their property to allow them to build structures near the believed boundary line or to conduct a lot line adjustment, only to learn the property line is not where they expected it to be.
Once the boundary line discrepancy has been revealed, the title owner of the property can risk losing the property to adverse possession.
Adverse possession is a long-established legal doctrine dating back centuries, which has evolved from common law to statutory law in Oregon. Under common law or statutory adverse possession laws in Oregon, the doctrine allows a person to obtain property rights/ownership over real property. However, a person that has adversely possessed another’s property must take formal action to evidence their ownership through adverse possession by either proving their case in court against the title owner or reaching a settlement with the title owner.
Oregon’s common law and statutory adverse possession laws share many similarities, with two key differences. The first being that common law adverse possession only applies to claims existing prior to 1990. The second main difference is that common law adverse possession does not require the possessing person to have an “honest belief” that they are the actual owner of the property.
To better understand how adverse possession works in Oregon, it’s important to distinguish between two key legal frameworks: common law and statutory law
Oregon Common Law Adverse Possession
Although it is less used, some older claims still arise under Oregon common law adverse possession, which is slightly easier to obtain. If an adverse possession claim arose and concluded prior to 1990, the elements and requirements a person must prove in court are:
1. Open
2. Notorious
3. Exclusive
4. Hostile
5. Continuous
6. Under color of title or claim of right
In tomorrow’s Part 2 of this series, I will provide an in-depth explanation of each of the above elements of common law adverse possession.
Oregon Statutory Adverse Possession Law
Pursuant to ORS 105.620, any claim for adverse possession that arose after January 1, 1990, a person must prove the following requirements in court:
1. The person (and predecessor, if applicable) has maintained actual possession of the property;
2. That possession has been:
a. Open
b. Notorious
c. Exclusive
d. Hostile
e. Continuous
3. At the time the person claiming by adverse possession (or the person’s 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;
4. The honest belief has continued throughout the 10-year period;
5. The person had an objective basis for their honest belief; and
6. The person’s honest belief was reasonable under the circumstances.
As an extra hurdle to overcome, the person must prove the above statutory elements by clear and convincing evidence, which is the highest burden of proof in civil cases.
In Wednesday’s Part 3 of this series, I will provide a more in-depth explanation of each of the above elements of statutory adverse possession.
If you are concerned about adverse possession and other property-related rights, please be sure to read Parts 2 and 3 of this series.
