As in Washington State (See Previous Post – My What Pretty Property You Have), adverse possession in Oregon requires that a claimant satisfy something of a standard test that the claimant and their predecessors in interest have maintained: (1) actual; (2) open & notorious; (4) exclusive; (5) hostile; and (6) continuous possession of the property for a period of 10 years.
What differentiates Oregon’s adverse possession law is that the Oregon Legislature added an additional requirement to the test noted above:
At the time the claimant or the claimant’s predecessor in interest, first entered into possession of the disputed property, the person entering into possession had the honest belief that they were the actual owner of the property and that belief:
(A) Continued throughout the vesting period;
(B) Had an objective basis; and
(C) Was reasonable under the particular circumstances.
See generally, ORS 105.620.
This additional test was designed to prevent a claimant from deliberately setting out to acquire the property of another through adverse possession. The Oregon Court of Appeals has summarized the statute as requiring “proof of the elements of a common-law adverse possession claim and, in addition, proof of an honest belief of ownership that has an objective basis and is reasonable.” Clark v. Ranchero Acres Water Co., 198 Or.App. 73, 108 P.3d 31, 35 (Or.App. 2005).
The Clark case involved a dispute as to the location of a property line between two lots that were separated by a fence and ditch. When Clark purchased one of the lots, the prior owner told him that the property line was the fence and ditch. Clark noted at the time of purchase that the property he was buying was mowed up to the fence whereas the grass on the other side of the fence was unmowed and long. After the purchase, Clark and his tenants regularly used the area near the fence line. Over the years, both Clark and the owner of the adjoin property acted as if the fence was the boundary line.
In addressing the additional test of ORS 105.620 in the Clark case, the Court of Appeals found that Clark had a mistaken belief as to the property line and that this mistaken belief had an objective basis and was reasonable based on the statements of the prior owner and the actions of the parties over the years. In response, the true owner argued that Clark could not have a “reasonable” basis for his belief as to the location of the property line when Clark’s deed accurately described the true boundary line. In discussing this issue, the Court of Appeals held that an “accurate description in a deed does not necessarily make a mistaken belief as to boundaries unreasonable; whether a mistaken belief is reasonable will depend on the circumstances of each case.” The court found that factors to consider include the size of the property in relation to the discrepancy, the nature of the land, the experience of the parties, and what they had been told all bear on the reasonableness of the belief.” Id.
Oregon’s statute should make adverse possession cases more difficult to prove, but as shown by the Clark case, will not make them go away, especially cases where there is true uncertainty as to the boundary line between two lots.
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