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We just had a property line survey done so we can build a fence.

Customer Question
The property line encompasses a...
We just had a property line survey done so we can build a fence. The property line encompasses a portion of the neighbors vegetable garden. The neighbor claims that since he has been growing the garden there for more than 7 years it has become his property. Is there any truth to this?
Submitted: 8 years ago.Category: Legal
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Answered in 2 minutes by:
8/1/2009
Lawyer: Dimitry K., Esq., Attorney replied 8 years ago
Dimitry K., Esq.
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Satisfied Customers: 41,221
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Customer reply replied 8 years ago
Oregon
Lawyer: Dimitry K., Esq., Attorney replied 8 years ago
There is almost no truth to his comments (I say "almost" for a reason which I will explain).

What your neighbor is alluding to is that he may have received ownership of your property through adverse possession. This is the Oregon statute:

SECTION 1. ORS 105.620 is amended to read:

105.620. (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.

However, under this standard your neighbor must prove "good faith"--meaning that he really did think that the land belonged to him, which is typically hard to do. If, however, the possession lasted for more then 10 years, he may actually have a case against you.

Sincerely,

Dimitry Alexander Kaplun, Esq.
Dimitry K., Esq.
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Customer reply replied 8 years ago
Thank you for your quick response. I guess the best thing for me to do is to contact a local lawyer since:
1)The person causing the dispute is not the property owner but the owners son
2)He only uses the property in question a few months out of the year
3)When we bought our home 11 yrs ago the actual property owner was the one who told us where he thought the property line was (very close to what was found on the survey)
Thanks again for your help.
Lawyer: Dimitry K., Esq., Attorney replied 8 years ago
I suggest you do contact an attorney.
1. Be aware that although it is the owner's son who is causing the problem, if he is the proper agent of the father, it is as if the owner itself is claiming the land.
2. That may be valid--if you can show that the possession is not open, notorious, and "continuous", then there is no adverse possession.
3. If you were told of the property, then the owner may have an easement of prescription on your property instead.

Anytime and please contact me again if you need anything else.

Sincerely,

Dimitry Alexander Kaplun, Esq.
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