Glenn v. Glenn
| Decision Date | 14 April 2021 |
| Docket Number | A170724 |
| Citation | 487 P.3d 856,310 Or.App. 661 |
| Parties | Aszemar GLENN, Plaintiff-Respondent, v. Thomas GLENN, Defendant-Appellant, and Robert Glenn; et al., Defendants. |
| Court | Oregon Court of Appeals |
Harry D. Ainsworth, Portland, argued the cause and filed the brief for appellant.
William A. Henderson, Portland, argued the cause and filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
The issue presented is whether a tenant in common of real property acquires fee simple title by adverse possession under ORS 105.6151 by operation of law once the tenant in common has met the requirements of exclusive possession and payment of property taxes for 20 continuous years. ORS 105.615 provides a way for a tenant in common to acquire fee simple title to the property, by adverse possession, after possessing the property "for an uninterrupted period of 20 years or more" and paying "all taxes assessed against such property while in possession." Plaintiff argues that vesting is not by operation of law, but rather through legal action and necessarily requires possession and payment of taxes to be current at the time of filing. Defendant, on the other hand, argues that vesting occurs by operation of law upon completion of the 20-year vesting period in compliance with the statute. Because we agree that vesting occurs by operation of law, we reverse.
Plaintiff Aszemar Glenn filed this partition action pursuant to ORS 105.205,2 seeking to force the sale of the Glenn family home and to distribute the proceeds, in part to Multnomah County to satisfy its outstanding tax lien and to avoid an impending foreclosure, with the remaining proceeds to be divided among the Glenn family members with ownership interests in the property. Defendant Thomas Glenn filed an answer, in which he asserted an affirmative defense of fee simple ownership by adverse possession, relying on ORS 105.615, and alleging that he had been in possession of and paid taxes on the home continuously for more than 20 years, exclusive of his siblings’ interests in the property as tenants-in-common.3 After a bench trial, the trial court concluded that defendant had failed to establish title by adverse possession and granted plaintiff's request to partition and sell the home.
On appeal, defendant raises three assignments of error. In his first, he argues that the trial court erred when it ruled that ORS 105.615 was "not a self-executing statute and that title did not vest by operation of law once" defendant met its requirements. In his second, he argues that the court erred when it ruled that title vests under ORS 105.615 only after the person claiming adverse possession satisfies its requirements and takes some action to "seek title." In his third assignment, which he acknowledges is unpreserved, defendant seeks plain-error review of the trial court's decision to proceed without all necessary parties (i.e. , all Glenn siblings) participating in the action. As to his first and second assignments, we conclude that the trial court erred in its application of ORS 105.615 and, therefore, reverse. And because the error asserted in the third assignment is not plain, we decline to consider it. See Augustus v. Board of Nursing , 284 Or. App. 420, 426, 392 P.3d 788 (2017) ().
We address the first and second assignments of error together because they present the same basic question of statutory construction. We state the undisputed pertinent facts and procedural framework, which we draw from the record.
The Glenn family home, located in Portland, had been owned by Marcus and Sylvia Glenn, who were divorced, as tenants in common, each with an undivided one-half interest in the whole. Mr. and Ms. Glenn had six children, including plaintiff, defendant, and four others. In 1987, defendant began living in, and paying property taxes on, the Glenn family home. That same year, Sylvia Glenn conveyed her one-half interest in the family home to her daughter, Sydiria Silvia. While it is not clear whether defendant occupied the home alone, the parties agree that his occupancy beginning in 1987 was exclusive to the owners of the property. And then, in 1995, Silvia conveyed her one-half interest in the Glenn family home to defendant.4 Marcus Glenn died in 2005 and his one-half interest was transferred to plaintiff as claiming successor in a small estate proceeding. In 2014, plaintiff conveyed that one-half interest to each of the six Glenn children "as tenants-in-common" using a "Deed of Claiming Successor."
Defendant has been in possession of the home, to the exclusion of all other tenants in common, and has paid the property taxes, since 1987. He made timely property tax payments for each year between 1987 and 2014. He did not timely pay the taxes that accrued against the property for the years 2015 through 2018, and Multnomah County instituted legal action to recover those past due amounts. After filing his answer and affirmative defense, but before trial, defendant paid the unpaid property taxes and Multnomah County was dismissed as a party to this case.
The issue before the trial court was legal: Did title to the property vest in defendant pursuant to ORS 105.615, by operation of law, in 2007, when he had lived on the property for 20 continuous years, exclusive of cotenants, and had paid the associated property taxes?
At trial, plaintiff relied on Miller v. Miller , 101 Or. App. 371, 376, 790 P.2d 1184 (1990), for the proposition that a cotenant can only be awarded title by adverse possession if he or she has satisfied the requirements of ORS 105.615 "at the time the claim [was] made." Plaintiff argued that whether defendant adversely possessed the property is determined at the time he filed his answer and defense and, because the tax payments were not then current, he was not entitled to acquire title under ORS 105.615. Defendant countered that title to the home vested in him by operation of law in 2007 because, at that point, he had lived in the home and paid taxes for 20 continuous years. That he later fell behind in his taxes, according to defendant, did not divest him of his ownership interest. He argues that whether he continues to remain current on his property taxes is not relevant to his ownership of the property. In defendant's view, ORS 105.615 permitted, but did not require, him to file a legal action to establish ownership by adverse possession.
The trial court ruled in favor of plaintiff and entered a judgment granting his request for partition and sale. The court determined that (1) under Miller , a party "may acquire" title by adverse possession "if certain conditions exist at the time title is sought"; and (2) because defendant had not paid "all property taxes" due at the time he filed his answer, he had not adversely possessed the home under ORS 105.615.5 Defendant appealed, making the same arguments on those points here as he did in the trial court.
To provide context for our discussion of adverse possession between cotenants who own property as tenants in common, we begin with a brief discussion of the law of adverse possession in general. Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to the land if certain requirements are met. At common law, adverse possession generally required proof, by clear and convincing evidence, that the claimant maintained "actual, open, notorious, exclusive, hostile, and continuous possession of the property for ten years." Tieu v. Morgan , 246 Or. App. 364, 369, 265 P.3d 98 (2011). Oregon replaced common-law adverse possession with statutory adverse possession in 1989 when it enacted ORS 105.620, adopting the common-law elements and adding a new honest-belief requirement. See Wood v. Taylor , 307 Or. App. 688, 695-96, 479 P.3d 560 (2020) (); Or. Laws 1989, ch. 1069, § 1.6
Historically, adverse possession also applied to tenants in common seeking title against the other cotenants. Crowley v. Grant , 63 Or. 212, 217-18, 127 P. 28 (1912). However, when property is owned in a tenancy in common, "possession of one cotenant is the possession of all," and hostile possession by one cotenant required more than mere occupation of the property to prove hostility of possession sufficient to acquire title.
Nedry v. Morgan , 284 Or. 65, 68, 584 P.2d 1381 (1978). To satisfy the hostility requirement, the cotenant in possession was typically required to oust his or her tenants in common by providing them with actual notice that he or she "intend[ed] to occupy the property exclusively." Id. Thus, the adverse possession period would not begin to run until after the possessing cotenant provided notice to the others of his or her intent to oust them.
Oregon expressly eliminated the requirement of ouster for tenants in common seeking fee simple title by adverse possession when it amended ORS 105.615 in 1989. Or. Laws 1989, ch. 1069, § 3. It did so because of the unique ouster and service issues that arise when a large number of people inherit property as tenants in common, but only one or more of them actually possess the property. Exhibit E, House Committee on Judiciary, HB 3195, Apr. 12, 1989 (statement of RELU representative Eugene L. Grant). The current version of ORS 105.615 provides a way for a tenant in common to acquire fee simple title to the property, by adverse possession, after possessing the property "for an uninterrupted period of 20 years or more" and paying "all taxes assessed against such property while in possession."
The parties disagree about what those phrases mean, and whether the trial court correctly interpreted and applied them. We review the trial court's interpretation...
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