Dear brenda4844-ga
Thank you for allowing me an opportunity to answer your interesting
question. We obviously cannot provide you with legal advice so if you
value your property it is imperative that you speak to an attorney
BEFORE you take any actions to reclaim the property you indicated.
Why? Because in Oregon this matter has already (recently too I might
add) been tried in court and the newly deeded owner lost his initial
case and then lost a second time on appeal:
In Gilinsky v. Sether, 187 Or App 152, 66 P3d 584 (2003), Robert
Gilinsky purchased some property only to find that five of his
neighbors were occupying property surveyed as part of his land.
Gilinsky filed suit for trespass and ejectment in order to gain
control over the property described in his deed. He lost so he
appealed his case to a higher court. The court of appeals reviewed the
case and affirmed the trial court?s decision. Applying Hoffman v.
Freeman Land and Timber, LLC, 329 Or 554, 559, 994 P2d 106 (1999), the
court determined that each defendant had demonstrated by clear and
convincing evidence actual, open, notorious, exclusive, continuous,
and hostile possession of the disputed property.
?The court found that all of the defendants had ?actually? used the
disputed property as part of their own backyards. The court held, in
accordance with Nooteboom v. Bulson, 153 Or App 361, 364, 956 P2d
1042, rev den, 327 Or 431 (1998), that each defendant had used the
disputed property as a typical owner would.?
Each had occupied the land (in legal terms ?open and notorious use?),
treated it as their own, mowing it, improving it and enjoying it
without previous dispute to their doing so. According to with
Nooteboom v. Bulson this continuous use and occupation of the land is
enough to establish ownership.
In addition, the court held (citing Faulconer v. Williams, 327 Or 381,
389, 964 P2d 246 (1998) and Mid-Valley Resources, Inc. v. Engleson,
170 Or App 255, 260, 13 P3d 118 (2000), rev den, 332 Or 137 (2001))
that because the neighbors believed they were owners of the property
that there was no element of hostile takeover of the property against
the previous owner?s will. In other words, they each occupied property
they actually believed they had a right to own and occupy and had
therefore satisfied the elements of adverse possession. The property,
according to the court, was legally theirs and Gilinsky got nothing.
ADVERSE POSSESSION
http://www.water-law.com/adverse_possession.htm
Again, if you value your property, you SHOULD consult an attorney AND
SOON. What are your chances of getting the property back? After
reading this Oregon case, I?d say slim. Consult your lawyer and also
ask him about your options related to filing a potential suit against
the previous owner who may or may not have intentionally mislead about
how much land your were actually buying when he sold it to you.
I might also add that this very thing happened to me once when I
?thought? I was buying seven acres of land. I later determined that my
neighbor occupied a portion of it and I asked him to vacate. He
promptly threatened to beat me up. After several tense months of
discussion he eventually chose to pay me fair market value for the
very small portion of land he occupied and though I was not interested
in selling, I agreed to sell in order to preserve the peace. Short of
this type of cooperation you may be in a real jam where your situation
is concerned.
Below you will find that I have carefully defined my search strategy
for you in the event that you need to search for more information. By
following the same type of searches that I did you may be able to
enhance the research I have provided even further. I hope you find
that my research exceeds your expectations. If you have any questions
about my research please post a clarification request prior to rating
the answer. Otherwise, I welcome your rating and your final comments
and I look forward to working with you again in the near future. Thank
you for bringing your question to us.
Best regards;
Tutuzdad ? Google Answers Researcher
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ADVERSE POSSESSION OREGON CASE LAW |
Clarification of Answer by
tutuzdad-ga
on
08 Jul 2004 16:28 PDT
You may also find this helpful:
In Oregon, adverse possession is covered under Oregon Code §105.620.
The duration of such possession is ten (10) years so how successful
you are in your effort to reclaim your property also greatly depends
on how long the neighbors have occupied the land:
105.620 Acquiring title by adverse possession. (1) A person may
acquire fee simple title to real property by adverse possession only
if:
(a) The person and the predecessors in interest of the person have
maintained actual, open, notorious, exclusive, hostile and continuous
possession of the property for a period of 10 years;
(b) At the time the person claiming by adverse possession or the
person?s predecessors in interest, first entered into possession of
the property, the person entering into possession had the honest
belief that the person was the actual owner of the property and that
belief:
(A) By the person and the person?s predecessor in interest, continued
throughout the vesting period;
(B) Had an objective basis; and
(C) Was reasonable under the particular circumstances; and
(c) The person proves each of the elements set out in this section by
clear and convincing evidence.
(2)(a) A person maintains ?hostile possession? of property if the
possession is under claim of right or with color of title. ?Color of
title? means the adverse possessor claims under a written conveyance
of the property or by operation of law from one claiming under a
written conveyance.
(b) Absent additional supporting facts, the grazing of livestock is
insufficient to satisfy the requirements of subsection (1)(a) of this
section.
(3) As used in this section and ORS 105.005 and 105.615, ?person?
includes, but is not limited to, the state and its political
subdivisions as created by statute. [1989 c.1069 §1; 1991 c.109 §2;
1999 c.950 §1]
OREGON CODE CHAPTER 105 ? PROPERTY RIGHTS
2003 EDITION
http://www.leg.state.or.us/ors/105.html
Regards;
tutuzdad-ga
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