Do water rights come with the land when I buy it?

Q: Do water rights come with the land when I buy it?

A certificated water right is appurtenant to the land under ORS 540.510 — it attaches to the ground, and on a sale it is treated as included unless the seller expressly reserves it in the deed or sale contract. A water right permit is not yet vested and so is not legally appurtenant, though because it names a specific place of use it usually follows the land too. Two things matter more than the transfer question: the right runs with that land and cannot be moved to other property without a formal transfer application, and under ORS 540.610 five successive years of non-use raises a rebuttable presumption of forfeiture. A right nobody has exercised since 2015 may not be a right any more.

Appurtenant is the word that does the work

ORS 540.510 puts it plainly: water used in this state remains appurtenant to the premises upon which it is used. It is attached to the dirt, not to the person.

That is why a certificated right generally passes with the sale without anyone doing anything, and equally why a seller who wants to keep it has to say so explicitly in the deed or the contract. Silence transfers it.

It is also why you cannot buy a neighbour's water right and bring it to your place. Moving the place of use, the point of diversion or the character of use requires a transfer application through the Water Resources Department under ORS 540.520 and 540.530.

Certificate versus permit

A certificate is a perfected, vested right — the water was put to beneficial use and the state confirmed it. This is the appurtenant case.

A permit is a right in progress: authorised, not yet proven up. Because it is not vested it is not appurtenant in the strict sense, but each permit specifies a location of use, so in a real estate transaction it is generally taken to go with the land unless the parties clearly intend otherwise.

Practical version: find out which one the property has, because they are not the same asset and they do not carry the same certainty.

The forfeiture problem nobody checks

Under ORS 540.610, failing to use the water for five successive years establishes a rebuttable presumption of forfeiture. Rebuttable is the operative word — the state has to show the non-use, and the holder then gets to explain it.

The statute lists a long set of circumstances that excuse non-use, and several are ordinary rather than exotic: water simply was not available though the holder was ready to use it, a declared drought year, land enrolled in the federal Conservation Reserve Program, economic hardship, a pending transfer application, or use that was prohibited by law.

Still, a right that has sat unused through a decade of absentee ownership is not the clean asset a listing implies. If irrigation water is part of why you are buying the property, verify the right is live before you pay for it.

What to check, and where

Get the certificate or permit number and look the right up directly with the Oregon Water Resources Department. You want the priority date, the authorised acreage, the place of use, the point of diversion and the character of use.

Then ask the seller the question that actually matters: when was this water last used, and on what. Ask for something showing it — irrigation records, a district bill, photographs of a standing crop.

A senior priority date on Oregon water is genuinely valuable in a dry year. That is exactly why it deserves verifying rather than assuming.

Sources

This is general information about Oregon requirements, not legal advice and not a substitute for the county or the state. Rules change — the sources above were checked on 14 August 2026. For your specific property, ask me and I will find out.