In a boundary dispute you have a couple of options. You could grant a use easement to the neighbor. This would allow them to continue encroaching but it would be a permissive and controlled use. This would put any buyers on notice that the use is occurring and, while not solving the problem, certainly raises their awareness. If the neighbor agrees to an easement (and you will want to double check this with an attorney) it should break any claim of adverse possession (essentially they would be agreeing that they do not own the land but are allowed to use the land).
Addressing your fears about adverse possession
Of all the potential claims arising from the ownership of real property, perhaps none triggers as much reaction as Adverse Possession. One person’s suit to quiet title is another person's “stealing.”
Claims for adverse possession, boundary and title disputes come up unexpectedly and are never convenient. Arising in both residential and commercial real estate transactions, title and boundary disputes occur in the sale of a property, or during remodeling or construction. Frequently, these events are the first time in decades the exact configuration of a parcel of property is determined by survey. A piece of land which adjoining neighbors have used without incident for years, can suddenly change when a surveyor turns up a defect in title or measurement. The placement of a county road or gas line can raise issues involving easements and access to property, driveways, water rights, and a host of other problems. Patterns of property occupancy established over years of "common usage" and custom, are thrown into chaos, when a boundary is in dispute.
To a property owner defending an adverse possession claim, a trespasser can ultimately gain ownership of real estate without payment, which can complicate the sale or development of real estate immensely. For example, a developer may purchase a deed to property only to discover a neighbor has been using a portion of the land for many years. In such a case, the neighbor may have a claim of title to the property through adverse possession.
Adverse possession, or as it is known by its less distinguished moniker "squatter's rights," has a complicated law history in Oregon.
Adverse possession basics
The old adage that there is no such thing as a free lunch is mostly true, in both life and in law. Adverse possession, rather than created to give land owners a chance at the lottery, as it might seem to some, developed centuries ago as a way to provide certainty to title holders, by creating certain presumptions about ownership. If an occupant of a piece of property could establish a pattern of ownership to the exclusion of others, which was "open and notorious" for an extended period of time, the presumption was that person owned the property outright. The burden of proving the property was not used exclusively would then shift to the landowner defending against the claim of adverse possession. In Oregon, lawmakers codified the law on adverse possession, meaning that any claim to adverse possession must meet the statutory requirements. To succeed on a claim of adverse possession, a claimant must prove by clear and convincing evidence that the possession of land was:
For a period of at least 10 years; and
With an honest belief of actual ownership
If any of the above criteria are not met, the claimant asserting adverse possession rights will not succeed.
Requirements of adverse possession
Oregon case law has developed what exactly these requirements encompass. For example, in Oregon, actual possession means using the land for oneself, not merely claiming the land or paying taxes on it. Actual possession could include farming, development, or a variety of other uses.
The possession must be open and notorious, as well. Secretly occupying land will not lead to adverse possession. Open and notorious possession could involve building permanent structures on the land or clearly marking the land as for personal use, for example by farming.
The possession cannot be shared between two parties. It also must be hostile, in the sense that the possession must be detrimental to the property owner with legal title. The occupation must also be continuous, not just for a few days every year or for a couple of months at a time, for at least 10 years.
In Oregon, unlike many other states, there is also a requirement that the person claiming the property had a mistaken belief the land was actually his or hers. Oregon law does not allow intentional acts of adverse possession.
Litigation over adverse possession claims
No two claims of adverse possession are alike. Facts vary widely, and outcomes depend largely on the facts of each case. Given the numbers of variables, outcomes are unpredictable . Real estate developers and landowners in a title dispute or with questions about adverse possession should contact a real estate attorney to discuss their legal rights and options.