What rights to I have to property that my deck has occupied for years?

Full question:

I own a property that has about 6' of the building and an attached deck of +/- 3' wide & 15' long. On old and current plats, this addition shows as 'encroachment'. The surveys go back to c.1989. As the encroached land belongs to the Port of Brandon, OR. Do I have any 'setter's rights', as neither I nor previous owners have ever been sent a notice by the Port. I have been told that a notice must be given within 3 years. I am now planning to sell the property and need to clarify this situation.

• Category: Real Property
• Subcategory: Adverse Possession
• Date: 04/07/2025
• State: Oregon

Answer:

Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement.

To establish ownership by adverse possession under the common law, a party must show clear and convincing proof of actual, open, notorious, exclusive, continuous, and hostile possession of the property for a ten-year period. Davis v. Parke, 135 Or App 283, 286, 898 P2d 804, rev den, 321 Or 560 (1995). To establish ownership by adverse possession under ORS 105.620, a party must prove the common-law elements and also that the possession was taken under an honest belief that the person was the owner of the property, that that belief continued throughout the vesting period, and that the belief had an objectively reasonable basis. The party seeking to quiet title under ORS 105.620 must prove each of those elements by clear and convincing evidence. ORS 105.620(1)(c). Clear and convincing evidence means evidence that makes a fact in issue "highly probable." Riley Hill General Contractor, Inc. v. Tandy Corp., 303 Or 390, 402, 737 P2d 595 (1987).

The following are OR statutes:

105.605 Suits to determine adverse claims.

Any person claiming an interest or estate in real property not in the
actual possession of another may maintain a suit in equity against another
who claims an adverse interest or estate therein for the purpose of
determining such conflicting or adverse claims, interests or estates. Any
municipal corporation or county of this state claiming any interest or
estate in real property which is not in the actual possession of another,
including real property acquired by foreclosure of delinquent tax liens
situated in the same county, may maintain a suit in equity against all
persons who claim an adverse interest or estate in all or any part of the
property for the purpose of determining the conflicting or adverse claims,
interests or estates. One or more parcels may be included in one suit and
the issue made by the pleadings in any suit by a municipality or county
relating only to a certain parcel or part of the real property, shall be
separately tried and determined upon motion of any interested party.

105.618 Adverse possession of railroad property.

A person may not acquire by adverse possession, as defined in
ORS 105.620, property owned by a railroad or used for a railroad
operation.

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.