Chapter 093


      Chapter 93


ATTY. GEN. OPINIONS: Records involving title to real property registered under the Torrens system, (1972) Vol 35, p 1032






      Constructive trust is trust arising by operation of law and therefore is not prevented from arising by need to rely on oral agreement to prove existence of trust. Person v. Pagnotta, 273 Or 420, 541 P2d 483 (1975)


      Statute of Frauds makes oral trust void at election of trustee rather than making it nullity. Smiley v. King, 278 Or 555, 564 P2d 1348 (1977)






      Inclusion in instrument conveying fee title of notice recommending buyer check with planning department does not limit seller liability to buyer for violation of ORS 92.018. DK Investment Co. v. Inter-Pacific Development Co., 195 Or App 256, 97 P3d 675 (2004)






      This section was not designed to inhibit inquiry into the grantor’s intent where he has used ambiguous language in his deed. Cappelli v. Justice, 262 Or 120, 496 P2d 209 (1972)






      Where vendor builds new houses for purpose of sale to general public, sale carries with it warranty that house is constructed in reasonably workmanlike manner and is fit for habitation; overruling Steibner v. Palumbo, 219 Or 479, 347 P2d 978 (1959). Yepsen v. Burgess, 269 Or 635, 525 P2d 1019 (1974)


LAW REVIEW CITATIONS: 11 WLJ 125, 129-133 (1974)






      Where plaintiff alleged she was tenant in common with decedent of orchard property based on number of events alleged to have occurred during decedent’s lifetime, plaintiff alleged only catalog of primary facts and not ultimate facts of legal theory that would substantiate tenancy in common under this section, and this section alone could not create title where none existed before. Hurlbutt v. Hurlbutt, 36 Or App 721, 585 P2d 724 (1978), Sup Ct review denied


      Where transfer of stock was made to “joint tenants,” designation was not sufficient to establish right of survivorship in absence of express declaration. Sautter v. Coffey, 283 Or 303, 584 P2d 245 (1978)






      Ability of trustee to convey valid title free from threat of later challenge by undisclosed trust beneficiaries does not mean that title to property was held by trustee in personal capacity. Erskine v. Elliott, 140 Or App 500, 916 P2d 319 (1996)






      When a conveyance describes property as bordering on a street, absent an express provision in the conveyance to the contrary, such a conveyance includes the fee to the street. Fossi v. Myers, 271 Or 611, 533 P2d 337 (1975)


      Bank of waterway is “monument” for purposes of reconciling inconsistency between boundaries or monuments and measurement of lines, angles or surfaces. Belmont v. Umpqua Sand and Gravel, 273 Or 581, 542 P2d 884 (1975); Denison v. Hodge, 196 Or App 248, 100 P3d 1144 (2004), Sup Ct review denied


      Where there are irreconcilable descriptions in an instrument of conveyance, the court must choose that description which best comports with the intention of the parties considering all the circumstances attending the conveyance. McCoshum v. Hoselton, 273 Or 778, 543 P2d 657 (1975)


      This section does not effect a transfer of tidelands along the Columbia River which belongs to the state rather than the upland owner due to the failure of the original grantee to purchase the tidelands under the proper statutory procedure, distinguishing McAdam v. Smith, 221 Or 48, 350 P2d 689 (1960). State Land Bd. v. Heuker, 25 Or App 137, 548 P2d 1323 (1976)


      Where original deed in chain of title contained “impossible particular” which described nonexistent point of intersection between rimrock and river, and intent of parties to original deed could not be ascertained, disputed property was left unconveyed. Tab Enterprises v. Heare, 37 Or App 879, 588 P2d 671 (1978)






      Description requirement does not displace description requirement applicable to construction liens under ORS 87.035. Bell Hardware v. Ed Szoyka Woodworking Co., 129 Or App 332, 879 P2d 208 (1994), Sup Ct review denied


      93.610 to 93.800


ATTY. GEN. OPINIONS: Recording location, type and degree of hazard of material buried in hazardous waste disposal site, (1979) Vol 40, p 188




ATTY. GEN. OPINIONS: Filing for record of financing statement, (1974) Vol 36, p 777




ATTY. GEN. OPINIONS: Filing for record of financing statement, (1974) Vol 36, p 777




ATTY. GEN. OPINIONS: Contents of recorded memorandum, (1975) Vol 37, p 996






      Where mortgagee had no actual notice of unrecorded earnest money agreement, use of bargain and sale deed rather than warranty deed to create mortgage did not deny him status of “subsequent purchaser in good faith” as matter of law. Armstrong v. Lovelace, 285 Or 313, 590 P2d 1231 (1979)


      Where purchaser of property who recorded his conveyance brought quiet title suit against prior purchaser of same property whose conveyance had not been recorded under this section, subsequent purchaser had burden of proving that subsequent purchase was in good faith and for valuable consideration. Nelson v. Hughes, 290 Or 653, 625 P2d 643 (1981)


      Where dissolution decree is issued in county where real property is located, subsequent purchasers of property have constructive notice of interest granted by decree notwithstanding that interest has not been registered. Partlow v. Clark, 295 Or 778, 671 P2d 103 (1983)


      Although party cannot be subsequent purchaser in good faith under this section if it has actual or imputed knowledge of prior unrecorded interest at time of its purchase, that prior interest must be valid under Statute of Frauds to be protected. FDIC v. Davis, 82 Or App 8, 727 P2d 133 (1986)


      Because plaintiff had actual notice of prior assignment to defendant, plaintiff’s recording of assignment earlier than defendant’s is irrelevant since plaintiff failed to allege that plaintiff obtained any interest under unrecorded assignments. Calhoun v. Higgins, 103 Or App 414, 797 P2d 404 (1990)


      Lien claim and foreclosure judgment do not convey, create or memorialize ownership interest in subject property. HGC Limited v. Cascade Pension Trust, 174 Or App 464, 26 P3d 842 (2001)






      Dissolution court acted beyond authority in modifying property division in dissolution decree and modification did not give constructive notice to state and bank of wife’s interest in residence. Spady v. Graves, 307 Or 483, 770 P2d 53 (1989)






      Judgment lien against vendor in land sale contract remains viable until it is extinguished by conveyance, but vendee has priority over judgment creditor and may safely make payments to vendor, unless judgment creditor has served vendee with notice of garnishment in execution of judgment or has caused vendor’s interest to be sold on execution. Wyllie v. Van Ruden, 76 Or App 598, 711 P2d 137 (1985)


      “Seller” means person selling land under recorded land sale contract. Waite v. Dempsey, 203 Or App 136, 125 P3d 788 (2005)


LAW REVIEW CITATIONS: 55 OLR 227-237 (1976)




ATTY. GEN. OPINIONS: Records involving title to real property registered under the Torrens system, (1972) Vol 35, p 1032






      Instrument conveying interest in proceeds of property sale is not recordable as instrument conveying interest in property. Citizens Valley Bank v. Prahl, 11 Or App 97, 502 P2d 284 (1972)






      Dissolution decree is effective to transfer real property interest, therefore failure to record dissolution decree in deed records does not render decree void as to bona fide purchasers for value. Partlow v. Clark, 295 Or 778, 671 P2d 103 (1983)






      Dissolution decree entered only in court file or circuit court journal is constructive notice as to real property in the same county; overruling to extent of inconsistency, Temple v. Osburn, 55 Or 506, 106 P2d 16 (1910). Partlow v. Clark, 295 Or 778, 671 P2d 103 (1983)






      Filing of complaint in dissolution action or other civil action that involves title to, interest in or lien upon real property creates lis pendens in county of filing if complaint identifies parties, object of action and property involved. Hoyt v. American Traders, Inc., 301 Or 599, 725 P2d 336 (1986)


      Claim before administrative agency does not permit filing of lis pendens notice because claim filed outside court system does not qualify as “suit.” Doughty v. Birkholtz, 156 Or App 89, 964 P2d 1108 (1998)


      Claim before Construction Contractors Board does not permit filing of lis pendens notice because regulatory power of board does not include power to determine interest in real property. Doughty v. Birkholtz, 156 Or App 89, 964 P2d 1108 (1998)






      This section does not preclude implication of a warranty of habitability in the sale of new dwelling houses where the seller is a builder-vendor; overruling Steibner v. Palumbo, 219 Or 479, 347 P2d 978 (1959). Yepsen v. Burgess, 269 Or 635, 525 P2d 1019 (1974)


      Warranty against encumbrances includes warranty against nonexcluded encumbrances that were known to grantee at time of conveyance. Leach v. Gunnarson, 290 Or 31, 619 P2d 263 (1980)


      It was not error for trial court to decide that prescriptive easement for driveway was encumbrance within meaning of this section and to grant summary judgment where defendant did not present evidence from which reasonable person could conclude that easement came with an exception to general rule that warranty deed warrants against all encumbrances unless expressly set forth in deed. Brown v. Baker, 67 Or App 283, 677 P2d 741 (1984)


      Warranty that grantor is seized of estate and has right to convey has no common law or other exception for adverse possession. Wright v. Hinnekamp, 69 Or App 591, 687 P2d 163 (1984)


      Under statutory warranty deed, grantor is not liable to grantee for costs and attorney fees incurred by grantee in defending unsuccessful claim for adverse possession. Chaney v. Haeder, 90 Or App 321, 752 P2d 854 (1988)


      Where defendants simply conveyed “lot 16” without making any covenant about where lot was on ground defendants did not breach covenant of title when they conveyed property that contained house that trespassed onto neighboring lot, but defendants did breach covenant against encumbrances and had to indemnify purchasers for damages purchasers paid for trespass. Bryant v. Moritz, 97 Or App 481, 776 P2d 1299 (1989), Sup Ct review denied


      Where there was no evidence defendants’ sellers had made any covenants in deed by which sellers conveyed property to defendants, sellers had no obligation to indemnify defendants for what they had to indemnify plaintiffs for trespass. Bryant v. Moritz, 97 Or App 481, 776 P2d 1299 (1989), Sup Ct review denied


      93.905 to 93.945








      Unconsummated transfer of interest in property is not subject to laws regulating forfeiture of land sale contract. Ionian Corporation v. Country Mutual Insurance Co., 836 F. Supp. 2d 1173 (D. Or. 2011)






      Notice of default sent to person holding power of attorney for purchaser was sufficient. Ho v. Presbyterian Church of Laurelhurst, 116 Or App 115, 840 P2d 1340 (1992), Sup Ct review denied


      Where required information not stated directly in notice could be readily determined from information given, notice was sufficient. Ho v. Presbyterian Church of Laurelhurst, 116 Or App 115, 840 P2d 1340 (1982), Sup Ct review denied; Carroll v. Newcomb, 132 Or App 526, 888 P2d 1062 (1995)


      Where plaintiff notified defaulting defendant of plaintiff’s intent to enforce forfeiture remedy and deadline to cure default, and defendant received notice and did not claim extension of time in which to cure default, this section presumes plaintiff’s deadline is correct and notice of default is legally adequate. Harvey v. Davis, 276 Or App 680, 371 P3d 1208 (2016)