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

Article excerpt

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. …