Why Boundary Disputes Arise. Over the past several years, it seems that boundary disputes have been on the uptick. One reason for this is that as we have come out of the depths of the Great Recession, many builders, rather than constructing large subdivisions, are doing what is called “in-fill”, i.e. cherry picking smaller parcels of land located in pre-existing neighborhoods.
The result has been that undeveloped parcels between previously improved properties, are being partitioned or subdivided into one or more lots, for residential construction. Frequently, this unused land has not been surveyed for many years, and meanwhile, the abutting neighbors have established, with fences, shrubbery, and construction, their own “lines of occupation” which may or may not conform to the legally descriptions in their deeds.
This can happen fairly easily for a variety of reasons:
- Unless the land is already marked, say with visible survey flags, pins, or markers, the boundaries may have been selected merely by relying upon “eye-balling” where the lines are.
- If the legal description is set out in “metes and bounds”, reading and understanding it can be as daunting to the layman as reading Latin for the first time.
- Frequently, the original owner of land takes out the first “bite”, and sets their own boundaries, e.g. by the placement of a fence, garden, hedge, garage or other indicia of ownership. From that point forward, successive neighbors may rely upon these lines of occupation, sometimes, perpetuating an error months or years earlier.
- Also, it is not unusual for owners to place their fences, etc. where they are the easiest or most “convenient”, either for aesthetic reasons, or due to the configuration of the land.
- Then there are the occasional “land grabs” where an owner knowingly uses more property than he is not entitled to, unbeknownst to the true owner, who does not occupy the land.
- And lastly, there can be an error as the property is being developed, where, for example, driveway curb cuts are placed a few feet beyond the property line, resulting in successive lots each encroaching an equivalent distance into their neighbor’s land. The same result can occur by establishing fences or other monuments on one’s lot that is relied upon by the neighbors.
Although most people do not actually intend to “steal” their neighbor’s land, it is fairly accurate to say that borders and boundaries are frequently established by homeowners with little regard for legal descriptions or the problems created later through the incorrect placement of a fence, shrubbery, or structure.
Adverse Possession Under The Common Law. In an effort to address what happens when land is occupied by one who is not the legal title holder, the law of “adverse possession” was developed. The Common Law, i.e. the law developed through the court system via “precedent”, held that if one actively possessed and used a property over time, it could ripen into legal ownership, even though according to their deed, it did not entirely belong to them.
The Oregon courts developed several specific elements before title by adverse possession could occur. I will not go into them here. Suffice it to say that if all of these elements existed simultaneously for consecutive ten years, the person (i.e. the “adverse possessor”) who satisfied them, could be regarded as the legal owner, even though their recorded deed did not say so.
And the Oregon courts recognized “tacking”, thus allowing one adverse possessor who used and occupied land for three years, to add their immediate predecessor’s seven years, to total the required ten year period. Once the ten years have accumulated by successive adverse possessors who all continuously satisfy the necessary elements, title to the land is now said to have “vested” in the current owner after three years.
Of course, vesting describes what has happened in fact, but the law, i.e. the public record, does not reflect this actuality. Accordingly, until someone either has their land surveyed, or accurately tracks the legal description in a deed or earlier survey, no one is usually aware of the issue. It is at this time that disagreements can occur and lawsuits arise.
Whether by agreement or court ruling, the public record has to be adjusted to reflect the realities on the ground. Once that occurs, the dispute is laid to rest, and the corrected title can now be conveyed reflecting the new boundary lines for the property.
And despite a common belief to the contrary, title insurance does not insure home owners against adverse possession claims by their neighbors. At the risk of over-simplifying the issue, suffice it to say that title insurance does not provide this coverage because their policies say so.[1] In fact, title insurance does not insure homeowners against any risks appearing on the property itself; only against risks appearing on the public record that have not been specifically excluded by the terms of the title policy. But that’s a discussion for another day.
The “Honest Belief” Requirement. Until January 1, 1990, in Oregon, the law of adverse possession was based solely upon court decisions. And until then, even the guy who took property he knew he didn’t own, could acquire title by adverse possession. It was on January 1, 1990, that ORS 105.620 became law. It “codified” the Common Law-created rules of adverse possession, i.e. it put them into Oregon’s legal code.
But ORS 105.620 added a significant new requirement to the old case law; it now said that in addition to meeting all of the requirements developed by the Oregon courts, the adverse possessor must also have an “honest belief” that they actually own the land.[2]
It is this element that most adverse possession claims focus on today. For example, say that a neighbor tells the adverse possessor nine years after he built a fence which he honestly believed was accurately located, that it is actually located on another neighbor’s land. Does this put the adverse possessor on notice to inquire further? Ask another way, does having this information take away the adverse possessor’s “honest belief”, such that he cannot now acquire title by adverse possession in year number ten? I believe the answer in most likely yes, assuming the well-meaning neighbor is telling the truth and is credible.
But what about the person today who has actively used and possessed his property up to an old fence that had been mistakenly placed on the neighboring land, and had remained there for forty years, i.e. since 1976? What if a neighbor informed today’s owner after nine years that the fence had been improperly located when first installed? Assuming all of the successive owners satisfied the Common Law elements through 1986, title by adverse possession would likely have been met in 1986, regardless of whether they knew the fence was on their neighbor’s property. In that case, title by adverse possession had “vested” in 1986 – before the “honest belief” element was required, and it is therefore irrelevant today. In other words, assuming that today’s adverse possessor can trace or verify the adverse possession back to the 1976 – 1986 period, the “honest belief” element becomes moot after that.
The same result would occur even if title vested say, in 2006, assuming that there is a succession of owners that all met the elements of adverse possession, including the “honest belief” requirement. Once vested, all successive owners in the chain of title[3] have the benefit of their predecessors’ ownership, regardless of their state of mind.
Conclusion. So the next time a developer surveys the vacant lot next door to your property, and tells you to move your fence because the survey shows that they “own” three feet of what you believed was your land, first consider the law of adverse possession. The take-away here is that the new survey only reports what either the legal description from a deed or prior survey says, but the principles of adverse possession will supersede the survey.
This is not to say there is no room for discussion and a negotiated solution. Much depends upon what has been occurring on the ground, and the intrinsic importance of the land in question. The older the fence or other misplaced monument, the greater the rules of adverse possession may apply. But since ORS 105.620 requires that adverse possessors establish their case by “clear and convincing” evidence[4] (as did the Common Law), and does not provide for prevailing attorney fees (which is also consistent with the Common Law), even a strong case comes with a cost, sometimes exceeding the value of the land in dispute.
And to those who hold to the belief that “no one can take my property from me”, here is a cautionary tale: Beware of acting hastily. If your neighbors have a row of shrubs or trees located on what they believe to be their property, and the plantings turn out to be within the legal description on your deed or survey, do not rush out and cut them down! Why? Because once title by adverse possession vests in the new legal owner, it can support a trespass claim, since you are no longer the owner of that ground or the plantings. And to make matters worse, the cutting down of trees on another’s land can result in a “timber trespass” claim, which, under ORS 105.810, entitles the true owner to sue and get treble damages, plus attorney fees. ~PCQ
[1] This is not true of insurance policies taken by lenders, as opposed to homeowners. The reason? Quite simply, lenders have a much bigger and stronger lobby in the state legislature, than individual homeowners, who have none, except in the consumer protection sense, i.e. protecting persons against deceptive business practices in the purchase of consumer goods or services.
[2] In an interesting and inexplicable oversight, when ORS 105.620 was first created, no one apparently considered what would happen if an adverse possessor had not fully met the Common Law elements for ten years, prior to January 1, 1990. Did he or she have to meet the “honest belief” requirement thereafter? By a subsequent correction, the answer is now “yes”.
[3] There is a technical “color of title” requirement that while important, is beyond the scope of this article.
[4] A much higher burden than the “preponderance of evidence” which is essentially over 50% of the weight of evidence (but less than the criminal standard of proof beyond a reasonable doubt).
