Possession must be open and notorious

In Seattle, many older properties have rockeries, small fences and even garden walls. In established areas, these features are often overgrown with all sorts of plants—often invited and cultivated—sometimes wild and unwanted.

When a boundary dispute between neighbors erupts, one or the other may point to these features to support a claim for adverse possession. Just because this hard feature exists, there are still hurdles the adverse possessor must overcome. Perhaps most importantly is establishing that the feature was “open and notorious.”

The “open and notorious” element is satisfied where the use of property is such that “any reasonable person would assume” the claimant was the owner. The element requires that the possession be visible and known or discoverable to the true owner.

Possession is not “open and notorious” if it is “hidden from being observed”

Washington’s voluminous case law on adverse possession does not contain a case that definitively addresses an adverse possession claim based on an obscured structure. There are two cases from Oregon that are instructive.

In Olson v Williams, 514 P.2d 552(1973) the court rejected a claim based on ornamental trees that had blended into the surrounding landscape making any distinct boundary not discernible.

A fence, constructed in heavy vegetation that could only be located if someone worked “…his way through the brush” to find it, was too hidden to support an adverse possession claim in Reeves v Porta, 144 P.2d 493(1944).

Evidence that a claimant or predecessor had placed a structure or landscaped a neighbor’s property is not, therefore, dispositive. One must look at the nature of improvement from the point of view of the owner faced with the loss of property.

The owner faced with the loss of property might ask: Was the use of property a type that would put that owner on notice that his or her property was being used by another?

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