Adverse Possession in Oregon: The Belief-in-Ownership Requirement

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In 1989, the Oregon legislature added a stringent belief-in-ownership requirement to adverse possession law. This Comment examines the relevancy of an adverse claimant's belief in ownership. The intended beneficiaries of the statute are large rural landowners who cannot keep close watch on encroaching neighbors. However, the statute will have the greatest impact on adverse claimants who had been in some sort of legal relationship with the true owner--an impact the legislature did not intend. Also, the belief-in-ownership requirement does not comport with the idea that adverse possession is designed to assure the landowner's diligence. Finally, the new requirement places too much burden on an adverse claimant who makes lasting investments on the property.

I. INTRODUCTION

Adverse possession law allows wrongful and unpermissive possession to become title ownership through the passage of time, acts of the claimant, and inaction of the landowner. A claimant gains title because she has justifiably relied on the true owner's failure to eject her while she made obvious and lasting investments. The wrongfulness of her conduct diminishes in light of the titleholder's complete failure to act.

The wrongful occupant's possession must be open, notorious, hostile, continuous, exclusive, and, in Oregon, under a "claim of right" for ten years.(1) Claim of right is the intent to possess as an owner without recognizing the record owner's rights.(2) A claimant generally establishes such intent through objective acts of ownership.(3) The majority of states disregard the claimant's actual belief in ownership.(4) A claimant's good faith belief in ownership is irrelevant to the underlying policies of adverse possession--"assuring maximum utilization of land, encouraging the rejection of stale claims and, most importantly, quieting titles."(5) Further, there is no need to establish a claimant's belief in ownership when a successful claimant's actions must be so open and notorious as to give ample notice to a record owner, thereby avoiding any possibility of fraud.(6) Because adverse possession law focuses on the adequacy of notice of an adverse claim given to the record owner and her subsequent inaction, an inquiry into a claimant's belief in ownership is immaterial.

Despite this strong current in adverse possession law, the Oregon legislature has decided to row upstream. In 1989, the legislature added a stringent and detailed belief-in-ownership element to the law.(7) Of the few states that require good faith claims, Oregon now enforces the most rigorous of standards. Not surprisingly, no adverse possession claim filed after the statute's effective date, January 1, 1990, has proceeded to the appellate courts. Oregon's belief-in-ownership requirement goes beyond mere absence of fraud.(8) The statute demands that the belief exist at entry and continue through the statutory period.(9) The belief must have an "objective basis" and be "reasonable under the circumstances."(10)

In this great departure from established adverse possession law, the motivation of the Oregon legislature seems clear. The legislature believed the time had come to "restore" a good faith element that had been "interpreted away" by the courts.(11) However, the statute's promoters misunderstood Oregon adverse possession law. The advocates sought to end the possibility of mere "squatters" obtaining title to land. They wanted to protect the "friendly neighbor" and the "honest landowner" from wrongful incursions.(12) Adverse possession cases involving knowing encroachments, however, are so rare in Oregon that it is difficult to understand the concern. This Comment illustrates how the ultimate effect of the legislature's good intentions may be felt in areas never considered.

The new statute places a higher burden of proof on the adverse claimant. Traditionally, the courts required the landowner to disprove the claimant's requisite hostility once the claimant proved objective acts of ownership.(13) Under the new statute, however, the claimant must prove by clear and convincing evidence that she actually believed she owned the land she possessed.(14)

Some components of the belief-in-ownership requirement are facially troubling but may be toned down by the courts with reasonable interpretation. Other components portend inevitably harsh results for claimants. The drafters and promoters of the 1989 statute failed to consider how it might apply to situations besides that of the bullying neighbor who knowingly occupies property belonging to an adjoining landowner.

It might have been impossible for the legislature to frame a good and fair belief-in-ownership element. Perhaps, however, the concept is simply inappropriate because it places too much emphasis on what the potential adverse possessor is thinking and not enough emphasis on what the landowner is doing. Section II explores the merits of good faith belief in ownership as debated by courts, theorists, and the Oregon legislature. Section III surveys the role belief has played in adverse possession cases prior to the statute. Section IV analyzes the statute's components and underlying presumptions, and suggests how the courts may interpret them. Section V then explains why Oregon's belief in ownership requirement is unwarranted, ineffective, and unfair.

II. THE PROS AND CONS OF A GOOD FAITH REQUIREMENT

Essentially, the debate over a belief-in-ownership requirement centers on what should be the goals of adverse possession. If the goals are to clear land titles and bar untimely claims of landowners who sit on their rights, good faith is irrelevant. If the goal is to reward with title those who work the land, perhaps only good faith possessors warrant reward. One Oregon Representative asserted that with changing concepts of land use and better surveying techniques, the emphasis in determining ownership is no longer occupancy but rather the surveyed line.(15) Why good faith should play a role in this evolution is debatable. The Oregon legislature believed that a good faith requirement better reflected the realities of what goes on between friendly neighbors. But given the notice requirements of adverse possession and the ease by which a landowner can establish a permissive relationship, the good faith argument misses the mark, ignoring the landowner who is derelict in her duties to look after her property.

States whose adverse possession statutes require good faith do not have a uniform definition of good faith. Some define good faith as merely lacking a design to defraud the true owner.(16) Others go further and insist that the claimant have an affirmative belief in ownership of the property.(17) Because Oregon has adopted the belief-in-ownership definition, this analysis will use that definition in weighing the strengths and weaknesses of a good faith requirement. This Section analyzes the merits of a belief-in-ownership element in adverse possession law in terms of relevancy to the purposes of the law, fairness, the difficulty a belief element poses for courts, and changing concepts of land use.

A. Relevancy to the Purposes of Adverse Possession Law

Opponents of a belief requirement argue that such an assessment is irrelevant because adverse possession results simply from the running of the statute of limitation for ejectment.(18) An inquiry into a claimant's belief seems moot where the goals of the law are to free the courts from stale claims and prevent a negligent landowner from unsettling the status quo.

However, adverse possession does more than end stale claims. By conferring title to the claimant, adverse possession rewards one who makes use of land.(19) Therefore, an inquiry into a claimant's belief is relevant to prevent the rewarding of one who knows the property belongs to another.

Thus, the debate over relevancy of the belief requirement is really a debate over how the law should weigh the goals of adverse possession. Subsections B through D delve more into these value judgments. In response to the proponents' concern over rewarding wrongdoers," however, opponents might assert that adverse possession is not the only means of rewarding an appropriator through the running of a statute. Conversion, for example, effectively gives title to a possessor of personal property after six years, regardless of her state of mind.(20)

B. Passing Title to a "Squatter"

A few cases from the good faith states hold that without a belief-in-ownership requirement, courts would be rewarding the mere squatter.(21) These courts fail to realize that squatters, by definition, could never acquire property through adverse possession because they lack a claim of right. A squatter occupies property in recognition of another's title with no intention of claiming title to it, whereas a successful adverse possessor must intend to claim title against the whole world, including the true owner.(22)

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