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Part of the requirements for adverse possession in Oregon include maintaining "actual, open, notorious, exclusive, hostile and continuous possession of the property."

Actual, open, exclusive possession was maintained by WS (initials), then his heir DS, then her heir MP, then assigned by MP to a trust.  https://law.stackexchange.com/a/92285 suggests that is "continuous."

But I do not know the meaning (in legal context) of "notorious."  And it's not "hostile" in the general sense of the word, but for the purposes of the statute, "hostile" means "under claim of right or with color of title."  The possession was not "with color of title" and probably not "under claim of right."  They just were not aware that it wasn't officially their property.

Situation: Two commercial lots owner by "PCO" and "WRET" are to the north of a residential area which includes the WS/DS/MP lot.  Many years ago, PCO and/or WRET built a wall separating their two properties from the residential lots.  The WS/DS/MP lot is adjacent to the WRET lot.  But according to county GIS, the wall is a considerable distance north of the property line.  Since the wall was built (and possibly before), WS, DS, and MP have mowed, gardened, landscaped, and used the land all the way to the wall, unaware that it wasn't officially their property.  WRET neither granted permission nor denied permission.  (One might argue the act of building the wall implies permission.)

Can the trust have the boundary modified to include that strip of land by adverse possession or by some (what?) other principle?

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  • MP and I are the trustees. I suppose "WRET" has been paying the taxes on their entire lot, including the portion outside the wall. They have not been maintaining another section of the same lot between their chain-link fence and a public street. Commented Aug 11 at 8:28
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    Please define your acronyms or we don’t know WTF you’re talking about Commented Aug 11 at 9:36
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    @DaleM To me it reads as initials/abbreviations of the various real-sounding parties involved, in which case it would fall under the ban on giving actual legal advice. Commented Aug 11 at 10:19
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    Most if not all of the details provided are significant to the actual question. An edit that changes the question and then removes most of the text to fit the new question is not useful. The question is in the title AND in the bolded portion. Commented Aug 11 at 14:50
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    @WGroleau That's the "problem" of / reason for the no actual legal advice rule. A generic question can be safely answered with broad advice about a general, hypothetical situation, but wouldn't / shouldn't (/ mustn't?) be of specific, precise use to a specific person as it then becomes personal legal advice and potentially runs foul of various laws. Commented Aug 11 at 15:59

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The Oregon statute is codifying the common law rule, so the words used should be read accordingly.

"Notorious" in this context simply means "not concealed" and discernible to a true owner engaged in reasonable research. It does not require that the adverse possession be obvious to someone who lacks access to the real estate records or surveys.

"Hostile" in this context means without permission and inconsistent with the true owner's claim of ownership. It does not require ill-will.

A misplaced fence or wall is a classic case of notorious and hostile possession (unless the fence was misplaced with permission in such a way that it was clear that title to the strip of land was not being transferred, for example, pursuant to a 99 years lease for nominal consideration). This is the single most common circumstance in which an adverse possession claim arises.

Anyone could have surveyed the property at any time up to the adverse possession deadline to determine that the fence/wall was not on the property line set forth in the real estate records.

Can the trust have the boundary modified to include that strip of land by adverse possession or by some (what?) other principle?

Adverse possession is almost always the legal theory invoked in cases like these.

The only other theories that would sometimes be claimed is that the fence was agreed to as a final boundary resolution, or that the fence was misplaced by such a small amount (perhaps an inch or three) that equity requires that the person who benefitted pay for the land inadvertently taken, rather than being required to rebuild the fence/wall in the proper location.

Whether the trust can prevail depends upon facts not in this question, like the duration of the adverse possession, the amount by which the fence is off, the course of dealings that led to the placement of the fence/wall, possibly some other facts that aren't obvious as I write this (e.g. did the trust really exist), and the availability of evidence proving the facts claimed (proving the date that the fence/wall was built is usually the hardest to prove fact).

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  • it's not uncommon for a company to have a fence inside of its owned land, leaving a green strip outside of the fence, which at times is actually used for monitoring access. though in those cases, they generally will protest any attempt to landscape those areas and cut the grass themselves... because the ownership of that strip and monitoring it is part of their security concept. Commented Aug 11 at 22:50
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    @Trish Facts and circumstances always matter, and whether the fence is intended to be on a boundary is certainly one factor. A fence that started with the intent, could also cease to carry that intent if a new owner neglected the landscaping of the strip and the neighbor started to treat it as their own (e.g. putting a shed on it right up against the fence). Commented Aug 11 at 22:53
  • Well, it fits that definition of notorious, but "hostile" is arguable. Without permission, yes, but not exactly with permission, since neither party tried to communicate to the other. One might argue that building a stone wall that thick and that high is almost like giving the land to the folks on the other side. There is no new owner—WRET owned it before the wall and still does, assuming the GIS is accurate, which I still need to determine. But they have never attempted to maintain that side nor asked for access. Commented Aug 12 at 0:38
  • duration: "many years ago" → prior to 2009;<br/> amount the wall is off: "considerable distance" → more than a meter<br/> course of dealings: I tried to say theere were no dealings Commented Aug 12 at 0:44
  • Checking this answer because it seems unlikely I'll get anything better without paying someone for a consult. Commented Aug 12 at 0:48

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