Oregon Common Law Adverse Possession

Oregon Adverse Possession

This is Part 2 in a three-part series on adverse possession in Oregon. Part 1 was a general overview regarding your risks of losing part or all of your property via adverse possession. Part 2 is on Oregon common law adverse possession. Part 3 is on Oregon statutory adverse possession law.

Adverse possession is a long-established legal doctrine dating back centuries, which has evolved from common law adverse possession to statutory adverse possession. The doctrine of adverse possession in Oregon allows a person to obtain property rights/ownership over real property after proving their case in court.

Although statutory adverse possession has existed in Oregon since January 1, 1990, common law adverse possession is still relevant and comes up often, especially with larger swaths of rural properties and long held family estates. One of the main reasons someone might rely on common law adverse possession is that it's generally easier to prove, especially for properties held before 1990.

Now, let's delve into the specific requirements for establishing a claim under Oregon's common law of adverse possession.

Common Law Adverse Possession

Oregon requires that any claim for adverse possession that vested before January 1, 1990, meet the following requirements:

1. The person (and predecessor, if applicable) has maintained actual possession of the property.
   1. A person can establish the element of "actual possession" of the property if their use of the property "would be made by an owner of the same type of land, taking into account the uses for which the land is suited." Allison v. Shepherd, 285 Or 447, 452, 591 P2d 735 (1979).
2. That possession has been:
   1. Open and Notorious. The required element of open and notorious possession is satisfied if the possession is "of such a character as to afford the [owner] the means of knowing it, and of the claim." Hoffman v. Freeman Land & Timber, LLC, 329 Or 554, 560, 994 P2d 106 (1999).
   2. Exclusive. The required element of exclusive possession is met by proof of occupancy by the claimant that is characteristic of exclusive ownership. Sertic v. Roberts, 171 Or 121, 130, 136 P2d 248 (1943). The degree of exclusion that an owner of the property would exercise is the test the court employs, which shows that their possession was the kind that would characterize an owner's use.
   3. Hostile. The required element of hostile possession is met when "the claimant possessed the property intending to be its owner and not in subordination to the true owner." Schoeller v. Kulawiak, 118 Or App 524, 529, 848 P2d 619, rev den, 317 Or 272 (1993).
   4. Continuous. The required element of continuous possession is met if the use of the property is constant and not intermittent. Hoffman v. Freeman Land & Timber, LLC, 329 Or 554, 560, 994 P2d 106, 110 (1999). Notably, "[p]ermissive use, no matter how long continued, is not hostile and cannot be the basis for adverse possession." Rise v. Steckel, 59 Or App 675, 686, 652 P2d 364, 371 (1982), rev den, 294 Or 212 (1982).
3. The person has been in possession for at least 10 years. The time a person's predecessor in interest was also able to meet the above elements can be "tacked on" to the current owner's time to meet the 10-year possession requirement.
4. The person has held possession of the property under color of title or claim of right. To show "color of title," a person must be the recipient of a deed that purports to describe the limits of a portion of land that is at issue. Arrien v. Levanger, 263 Or 363, 370, 502 P 2d 573, 576 (1972). To show that you have a "claim of right," a person must intend to possess as an owner without recognizing the record owner's rights.

The cases above provide legal precedents that illustrate how courts have interpreted and applied the elements of common law adverse possession in Oregon. Please stay tuned for tomorrow's Part 3 on Oregon statutory adverse possession law.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.