Does a foreclosure break the chain of privity between owners and thus the continuity of an adverse occupation? If not the foreclosure itself, would the prolonged vacancy typically associated with a foreclosure break the continuity of an adverse occupation?
In other words, would a foreclosure reset the AP clock to zero?
does the occupation still exist? If so then I'd say that the claim continues. Will the previous occupiers be willing to agree to assisting in a claim?
Of course, I believe that the property must be continuously occupied, so if there isn't that continued occupation the claim would fail.
According to my book Land Surveying Law, by John Keen: "Continuity is broken, however, if the true owner is a government entity, legally established, at the time of entry generally, or in the event of bank foreclosure."
> According to my book Land Surveying Law, by John Keen....
Hmm. That seems to be right on the issue. Does Mr. Keen provide any case law references to back up his assertion?
I didn't see any at first reading, but I didn't go through the index and appendixes.
A Bank Can Own Property
But almost never occupies and uses it.
Adverse Possession requires occupation and use.
Paul in PA
A Bank Can Own Property
> Adverse Possession requires occupation and use.
Occupation in its ordinary use, that is. Isn't a foreclosure becoming the ordinary use of residential property?
I would expect that a change in the actual lines of possession would be necessary. If the property sat vacant for a while, that wouldn't affect the actual possession. Possession is presumed as a right held by the title holder (the bank).
JBS
You Possess To The Title Lines
Adverse Possession requires you to occupy and use beyond those lines.
Paul in PA
You Possess To The Title Lines
> Adverse Possession requires you to occupy and use beyond those lines.
Not really. Adverse Possession is a title doctrine, not a boundary doctrine. As a title doctrine, the possessor either claims with color of title or without. The bank holds the title under a written deed, therefore, they are considered to occupy the property. They hold the legal right of occupation.
The only prong of AP which could potentially resolve a boundary issue is a long-term possession (many states don't have it, some still do) under a claim of right. Possession alone doesn't ripen into AP (continuous or sporadic).
If AP is being argued to establish the boundary location, it's likely being argued improperly (although, a few states have set it up as the only argument).
JBS
Adverse possession is so different in every state that I think it would
be misleading in general to not mention the state too. Texas is different
than any other state that I know of. New York is also different than others.
There are different rules everywhere even though the general rules are the
same.
Any corporation must 'stand in the shoes' of a normal land owner and property managment firms exist to provide the oversight capability to find and eject trespassers, this certainly includes foreclosing banks.
When banks refuse to pay property taxes on foreclosed properties, the taxing authority can put the property up for a sheriff's sale, stipulating tht the buyer must occupy, control the property and pay taxes as applicable.
That said, it gets too expensive to fight a claim against a foreclosing bank, given the deteriorated legal system we are cursed with.
However, it is always possible for adjoiners who might lose part of their land that they occupy and control, to sue any 'mortgage surveyor' who did not inform their client(s) that a record description was inaccurate and needed to be corrected at the time of the last sale of the property. This also requires surveyors who are NOT DEED STAKERS, and competent lawyers, two virtually impossible conditions.
Richard Schaut
Mark,
I've never seen "foreclosure" specifically discussed in an adverse possession casein Oregon. However, in Oregon, Continuous us is considered as what would be appropriate for the type of property. Tacking was addressed in an Oregon case such that there has to be some evidence that the owner transferred his rights of adverse possession to the subsequent owner, such as "I own to the fences". I don't think that would happen in a foreclosure. Also you didn't say whether the bank was doing the adverse possessing or was being adversely possessed by a neighboring land owner. In, Oregon once a landowner knows the property is not his the clock stops because he has no reasonable belief he owns the land. Unless the possession took place before the change in Oregon's adverse possession statute.
Oregon adverse possession law is modified by statute from common law adverse possession. You can email me or call if you want more info.
>Also you didn't say whether the bank was doing the adverse possessing or was being adversely possessed by a neighboring land owner.
My question is hypothetical, not based on a specific circumstance. What got me thinking about it (besides the half dozen vacant houses in my neighborhood) was the recently released unpublished Washington Court of Appeals case of Tollefson v. Cohn which quotes the following from Roy v. Cunningham 46 Wn.App. 409, 731 P2d 526:
"Where there is privity between successive occupants holding continuously and adversely to the true title holder, the successive periods of occupation may be tacked....."
Which implies to me that there must be a way for successive occupants to not have privity and got me wondering what those circumstances might be.
> Oregon adverse possession law is modified by statute from common law adverse possession. You can email me or call if you want more info.
Thanks. I may do that. I am aware of ORS 105.620.
The Oregon case on privity and tacking is:
Timber Service Co. v. Ellis, 163 Or.App. 349,1999.
I did a quick search and did not find any later cases that would have a negative review or overturn this case. My first thought on this case was that the guy's attorney did not cover all the bases required for adverse possession. But there may have been a total lack of evidence anyway,and the guy was grasping at straws to defend a timber trespass.
You bring up a good point in that surveyors probably out to point out to their client and the client's attorney when there is a foreclosure in a property or neighboring property's history and unwritten rights might be involved.
Timber Service Co. does have an extended discussion regarding tacking and privity but, unfortunately for this discussion, does not involve a foreclosure.
Interestingly, a sale of the property with a description that did not encompass the adverse property was insufficient to establish privity over the parcel in dispute, and therefore tacking was not allowed. So the privity is broken by something that wasn't done, rather than by positive action. It seems that the Oregon Court is really serious about having color of title - although the phrase is not used in Timber Service Co..
So the privity is broken by something that wasn't done, rather than by positive action.
I believe it wasn't that it was not described in the deed, it was that there was no positive action, oral or written, that transferred the area in contention. Other cases have accepted evidence that included an oral statement regarding the transfer of an area not in the legal description, such as "I'm selling you the land enclosed by the fence".
I have read many of the adverse possession cases in Oregon and do not remember any that involve a foreclosed property and foreclosure isn't mentioned in the statute. So, as an attorney I would probably argue that like the previous case there was no evidence the foreclosed upon landowner transferred his rights in the disputed area. (I supposed there might be a rare cases where the landowner might tell the bank he is transferring to them all he occupies). Also the bank's attorney may have other arguments. It's my opinion that adverse possession is hard to prove in Oregon. Any interesting topic, maybe a case will happen somewhere.
It's my opinion that adverse possession is hard to prove in Oregon. Any interesting topic, maybe a case will happen somewhere.
That is what my opinion is also but it is only true if all of the evidence is entered into the record in the lower court so an appeal can obtain justice based on the requirements of the law. So many attorneys know just enough land law to be dangerous and they often prevailing in the lower courts, appeals are expensive.
jud
Timber Service Co. v. Ellis, 163 Or.App. 349,1999.
> I believe it wasn't that it was not described in the deed, it was that there was no positive action, oral or written, that transferred the area in contention. Other cases have accepted evidence that included an oral statement regarding the transfer of an area not in the legal description, such as "I'm selling you the land enclosed by the fence".
Since the circumstance is one of grandparents selling to grandchild one would think the defendant should have been able to say "Grandad just always thought it was his property and treated as such and so I thought so, too." and that may have changed the result of the case. Could be that the case wasn't argued well.
> ... It's my opinion that adverse possession is hard to prove in Oregon.
Mine, too. The court has as much as said so. Hoffman v. Freeman Land and Timber (1999), which is the most recent Oregon Supreme Court AP case, I think, cites Whitley v. Jacobs (1977) which quotes Reeves v. Porta as follows:
'The plaintiffs have a heavy burden to establish ownership by adverse possession. The rule is set forth in Reeves v. Porta, 173 Or. 147, 149, 144 P.2d 493, 495 (1944):
"ownership of land by adverse possession can be acquired only by actual, open, notorious, hostile, continuous and exclusive possession under a claim of right or color of title. Stephenson v. Van Blokland, 60 Or. 247, 118 P. 1026; Thomas v. Spencer, 66 Or. 359, 133 P. 822. These elements must coincide, and the possession must be continuous statutory period, which, in this state, is ten years. 1 Am.Jur., Adverse Possession, Section 126; Section 1 -- 202, O.C.L.A. where adverse possession is an issue, it is held generally that all of the elements thereof must be alleged, and must be established by clear and positive proof. Laurance v. Tucker, 160 Or. 474, 85 P.2d 374; Enright v. Meves, 142 Or. 88, 18 P.2d 216; Houck v. Houck, 133 Or. 78, 283 P. 25, 288 P. 213; Chapman v. Dean, 58 Or. 475, 115 P. 154; McNear V. Guistin, 50 Or. 377, 92 P. 1075; Chastang v. Chastang, 141 Ala. 451, 37 So. 799, 109 Am.St.Rep. 45; 1 Am.Jur., Adverse Possession, Sections 230 8, 246."'
If you trace citations in Oregon AP decisions back a few steps you almost always come to Reeves v. Porta before long.
> So many attorneys know just enough land law to be dangerous ....
That's why they need the P.L.S. to be really on his/her game.
