Adverse Possession in Oregon
Adverse Possession in Oregon: Requirements, Recent Cases, Practical Tips, and What to Expect
Adverse possession allows a person who occupies and uses another’s land, without permission, to acquire legal title after meeting strict statutory and common-law requirements for a defined period. In Oregon, the doctrine is narrowly applied, the burden of proof rests on the claimant, and courts scrutinize the facts closely.
Core Legal Requirements in Oregon
To establish title by adverse possession in Oregon, a claimant must prove, by clear and convincing evidence, that their possession of the property was:
Actual,
Open and notorious,
Exclusive,
Hostile (under a claim of right),
Continuous for the statutory period, and
Accompanied by an honest belief of ownership that meets statutory criteria for at least ten years.
Key sources:
Oregon Revised Statutes set out requirements, including the ten-year period and the “honest belief” element. See ORS 105.620 (elements, “honest belief,” tacking, privity, and limitations on claiming against certain owners) and ORS 12.050 (ten-year limitations period for actions to recover real property).
Oregon appellate decisions elaborate on and apply these standards, including the distinct “honest belief” requirement added by statute in 1991 and refined thereafter. See, e.g., Wiser v. Elliott, 247 Or App 386, 270 P3d 610 (2012) (discussing honest belief and evidentiary showings); Niday v. Niday, 240 Or App 260, 246 P3d 493 (2011), aff’d in part, rev’d in part on other grounds, 353 Or 648, 302 P3d 444 (2013) (continuity and use consistent with the character of the land); Riley v. Baretta, 238 Or App 663, 242 P3d 723 (2010) (hostility and permission).
Statutory framework highlights:
Ten-year period: ORS 12.050.
Honest belief: ORS 105.620(1)(b) requires the claimant to have had an honest belief of ownership, objectively reasonable under the circumstances, throughout the statutory period, and that belief must originate from an objective source (e.g., deed, recorded instrument, boundary marking, longstanding fence line believed to be the boundary), not mere subjective intent.
Tacking: ORS 105.620(2)(a) permits tacking periods of possession between predecessors in interest if there is privity (e.g., deed or transfer) and continuity.
Limitations: ORS 105.620(3) restricts claims against certain categories of owners (including governmental entities and common elements in certain community associations).
Element summaries:
Actual possession: Use the land as a true owner would, considering its nature and location. See Niday, 240 Or App at 267–70 (use consistent with character of residential property).
Open and notorious: Visible use sufficient to put a reasonable owner on notice. See Wiser, 247 Or App at 392–95.
Exclusive: Control not shared with the record owner or public, consistent with intended use. See Riley, 238 Or App at 670–72.
Hostile/claim of right: Without permission; possession under a claim of right, not necessarily ill will. Permission defeats hostility. See Riley, 238 Or App at 670–73.
Continuous for 10 years: Uninterrupted possession for the full period; seasonal or intermittent use may suffice if consistent with the land’s character. See Niday, 240 Or App at 268–70.
Honest belief of ownership: Objective reasonableness and continuity for the entire period, typically tied to a boundary mistake, deed, or other objective basis. See ORS 105.620(1)(b); Wiser, 247 Or App at 396–400.
Recent Oregon Case Law Highlights
Wiser v. Elliott, 247 Or App 386, 270 P3d 610 (2012): The Court of Appeals emphasized the statutory “honest belief” requirement as an objective standard and held that claimants must show a continuous, objectively reasonable belief of ownership for the entire ten years, supported by an objective source such as monuments, fences, surveys, or title documents. The decision underscores that a mere subjective belief or after-the-fact justification is insufficient.
Woods v. Villanueva, 288 Or App 335, 406 P3d 185 (2017): Clarified application of exclusivity and open/notorious elements in boundary disputes, reiterating that uses typical of ownership for the property’s character can establish adverse possession, while neighborly accommodation or shared maintenance may undermine exclusivity.
Kittleson v. Garris, 307 Or App 133, 475 P3d 62 (2020): Addressed tacking and privity where successive owners relied on the same boundary features; affirmed that privity supporting tacking is typically satisfied by a deed conveying the property and the area claimed when the parties intended to transfer possession of the disputed strip.
Michel v. Anderson, 318 Or App 257, 508 P3d 584 (2022): Reinforced that permissive use defeats hostility; evidence that the record owner acquiesced out of neighborly tolerance can preclude adverse possession absent clear proof that permission was withdrawn or the use was under a claim of right.
Note: The above cases illustrate trends but outcomes remain intensely fact-specific. Courts frequently deny claims that lack contemporaneous objective evidence of boundary belief or that rest on cooperative neighbor practices.
Practical Tips
For property owners (defending against claims):
Inspect boundaries: Obtain a survey if fence lines or use patterns differ from the legal description. Keep survey stakes and records.
Document permission: If you allow a neighbor to use part of your land (gardening, parking, access), give written, revocable permission to negate hostility. Keep renewal reminders.
Post and maintain: Maintain fences, signage, and regular inspections; timely object to encroachments in writing.
Record and preserve evidence: Keep photos, correspondence, permits, and contractor invoices that show your control and maintenance.
Address early: Seek a boundary line agreement, license, or mediation before the ten-year period accrues.
For potential claimants:
Gather objective proof: Compile deeds, plats, surveys, fence histories, and neighbor testimony supporting an honest, objectively reasonable boundary belief.
Demonstrate owner-like use: Show actual, open, notorious, exclusive, and continuous use consistent with the land (e.g., mowing, landscaping, improvements, maintenance).
Track the timeline: Establish uninterrupted use for at least ten years; consider tacking with predecessors if privity exists (ORS 105.620(2)(a)).
Avoid permission: Written permission will generally defeat hostility; if permission is offered, understand its consequences.
Consider alternatives: Boundary line agreements, lot line adjustments, or easements can resolve disputes without litigation.
