For most Americans and most Oregonians, your home is your most valuable single possession. It may surprise you to learn that under Oregon law, neighbors or trespassers can actually gain legal title to portions of (or even all of) your land over time if you don’t object to their presence. Adverse possession essentially allows a trespasser on a piece of land, sometimes just a piece of a yard or property, to gain ownership of that land if the true owner doesn’t stop them within a certain period of time—ten years in Oregon.
To ensure that all of your land remains yours, you must keep an eye on your property lines. Moreover, you yourself may eventually want to assert a claim for adverse possession against another individual’s land. Either way, you’ll need to learn about Oregon’s adverse possession laws.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger but more often a neighbor—to gain legal title over someone else’s land. The concept first developed in early Britain. It has been kept alive in order to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make him or her leave would seem unjust, or create hardship.
In Oregon, adverse possession is largely defined and regulated by the state courts. Of course, there are some hurdles to clear before someone can claim a piece of your Oregon land using this theory.
One major hurdle is that the burden of proof to establish a claim of adverse possession is on the trespasser. In other words, if you hold legal title to a piece of land, you are its presumed owner until and unless the adverse possessor can come up with enough compelling evidence and arguments to convince a judge to grant him or her ownership over all or a portion of it.
Adverse possession should not be confused with having an easement to use another person's property—for example, when a neighbor has an easement to use your driveway to access his or her home. Easements involve shared rights with others in pieces of property, whereas adverse possession results in a shift in title, and the corresponding right to exclude others from the property. Read more about easements.
There is no single statute in the Golden State that dictates the elements that a trespasser must establish in order to prove adverse possession. Rather, the courts have established a variety of such factors over many decades of issuing decisions in individual cases.
As in most states, adverse possession in Oregon is established based on the nature of a trespasser’s possession and the length of time the person possesses the land.
A trespasser’s possession must, in Oregon, be (i) hostile (against the right of the true owner and without permission); (ii) actual (exercising control over the property); (iii) exclusive (in the possession of the trespasser alone); (iv) open and notorious (using the property as the real owner would, without hiding his or her occupancy); and (v) continuous for the statutory period (ten years in Oregon, under Or. Rev. Stat. § 105.620).
These rules are easier to understand with a hypothetical. Imagine that Barry and Elaine live next to one another in a suburb outside of Portland. Without a wall between their properties, Barry begins to put lawn furniture on what is technically Elaine’s land. Eventually, Barry builds an entire patio there. Elaine never objects or says anything about the encroachment. The years pass—ten years, in fact. Under Oregon’s adverse possession framework, Barry will likely be successful in establishing an ownership claim to that portion of Elaine’s property. Note that he won’t be able to take over all of Elaine’s lawn—only the portion upon which he constructed the patio and which he actively used for those years. Oregon courts would be reluctant to suddenly eject Barry and his patio after so much time has passed.
What should you do if you spot a trespasser or a neighbor encroaching on your Oregon land? Your first move, of course, should be to speak with the person and ask that he or she remove all structures from, and refrain from entering onto, your property. If it’s an innocent mistake, the person is likely to comply and get off your land.
If the trespass continues—especially if the individual asserts a claim of ownership—you may want to consult a lawyer and bring an action to quiet title. This is a legal method for determining the rightful owner of land.
An action to quiet title is essentially a lawsuit that asks an Oregon state court judge (that is, one of Oregon’s Circuit Courts) to issue an order declaring that you, and not the trespasser, are the true owner (and title holder) of the land. This order is particularly helpful if you are planning to sell your property, and need to reassure potential buyers that, for example, your neighbor's lawn furniture isn't a permanent fixture, or that you will actually be conveying all the land your title appears to include.
Any land that is held by Oregon’s state and local government entities is typically immune from adverse possession actions. Therefore, if you live next to an undeveloped portion of one of Oregon’s dozens of state parks, you won’t be able to “annex” a larger yard by planting your flag and waiting a decade. Oregon’s government always has first priority when it comes to ownership.