In 1989, the legislature enacted ORS 105.620 resulting in a modification of a common law claim for adverse possession. The statute went into effect on January 1, 1990 and applies to adverse possession claims that vest after its effective date. The statute added as an additional element the requirement that the person claiming adverse possession held an “honest belief” he or she is the actual owner of the property when he or she first comes into possession of the property. ORS 105.620(1)(b). The requirement to prove an “honest belief” of actual ownership creates a difficult hurdle for a party claiming ownership of property by adverse possession vesting after the effective date of the statute. Property owners are often most aware of property line and easement disputes when they first come into possession of the property. Title reports and property line survey are likely to be seen and reviewed during change of ownership, and therefore more likely to destroy any “honest belief” ownership even if there is longstanding open, notorious and hostile use of the property by predecessors in ownership.
In Uhl v. Krupsky, 254 Or App 736 (2013), the court of appeals addressed the question of whether ORS 105.620 applies to a claim by a fee simple owner of property to extinguish an easement by adverse possession. Plaintiffs sought to eliminate a portion of a recorded access easement located on their property by their open, notorious and hostile use of a portion of the access easement. Defendants, contending that ORS 105.620 applies to all adverse possession claims, argued that the plaintiffs could not establish an “honest belief” of actual ownership based on their knowledge of the written access easement agreement when they purchased the property. There was no factual dispute that the plaintiffs had met all the other elements of adverse possession – open, notorious, exclusive, hostile and continuous possession of the portion of the easement they sought to extinguish for the requisite ten year period. The trial court granted summary judgment in favor of the plaintiffs extinguishing the disputed portion of the access easement. The Court of Appeals affirmed holding that ORS 105.620 does not apply to an adverse possession claim where a property owner seeks to extinguish an easement. The court reasoned that the phrase “acquire fee simple title to real property by adverse possession . . .” contained in ORS 105.620, limits its applications to claims involving “the acquisition of possession, control, and the power of disposal of the broadest property interest allowed by law, which does not include an easement.” Id. at 740-41. Further, the Court of Appeals noted the language found in ORS 105.620(1)(b) was also inconsistent with application to easements because the language requires the “honest belief” to be held at the time the claimant first comes into “possession” of the property and an easement is a “nonpossessory” interest. Id. at 741. For these reasons, the court found that the plaintiffs claim to extinguish an easement fell outside the scope or ORS 105.620 and that because plaintiffs otherwise established the common law elements of adverse possession summary judgment was appropriate.
The holding in Uhl provides strong support that claims for adverse possession seeking to extinguish or create easement rights are controlled by common law rather than ORS 105.620. As a result, a claimant seeking to establish or extinguish an easement by adverse possession will have a far better chance of success than one seeking to claim a fee interest in property.
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