This post is part 4 of a 6-part series on Washington’s adverse possession doctrine.
As a refresher, the adverse possession doctrine encompasses four elements: (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile. LeBleu v. Aalgaard, 193 Wn.App. 66, 78 (2016).
This post will examine the “Actual and Uninterrupted” element, which is more of a footnote in court opinions, with most cases focusing on the other elements. This element requires the claimant to show that their possession of the disputed property was actual and uninterrupted for the ten-year statutory period. Even a temporary interruption may defeat a claim.
When discussing “actual” the courts return to the theme discussed in previous posts analyzing the other elements of adverse possession – how would the owner use the property. “In order to establish actual and uninterrupted use of property throughout the statutory 10-year period, a claimant must demonstrate the same type of use that a true owner would make of the property, considering its nature, character, location, and ordinary uses.” Pelican Point Community Association v. Dexter, No. 21660-8-III, 2004 Wn.App. (Mar. 4, 2004). Whereas, discussion of uninterrupted follows something of a dictionary definition of the term – “If there is a general test of ‘uninterrupted,’ it is that there must be no ‘significant’ break in the claimant’s continuity of possession.” Remund v. Stroud, No. 23264-2-II, 1999 Wn.App. (July 16, 1999)
The actual and uninterrupted element comes up when the use is intermittent as in Stokes v. Kummer, 85 Wn.App. 682, 936 P.2d 4 (1997), where claimants used the disputed property for the cultivation of crops harvested biennially, with the land lying fallow in intervening years, which was found sufficient to satisfy the requirements of actual and uninterrupted use; or Howard v. Kunto, 3 Wn.App. 393, 477 P.2d 210 (1970), where claimants used a beach home only during the summer months when this was the type of use that neighboring properties were put to.
The actual and uninterrupted use must be for ten years. The general attack on a claimant is that they failed to use the disputed property for ten years, or their use was interrupted. In Pelican Point Community Association v. Dexter, No. 21660-8-III, 2004 Wn.App. LEXIS 314 (Mar. 4, 2004), the property started as undeveloped and then was developed. In rejecting a challenge that claimant failed to use the property during the undeveloped period, which was needed to meet the ten-year requirement, the court found that the claimant requested that contractors working on surrounding parcels dump fill on claimant’s property and the adjoining disputed parcel and later requested that the fill be graded. Once developed, claimant landscaped the disputed strip and placed a dock on it. Placing fill on undeveloped land and having it graded was found to be sufficient.
Another line of attack is that the use was interrupted, if even for a short period, during the ten-year period, as in Truax v. Schmidt, No. 28177-5-II, 2003 Wn.App. LEXIS 256 (Feb. 19, 2003), where the title owner asserted that they interrupted the possession by placing property markers on the disputed strip which claimant did not object to. In rejecting this argument, the court held that the act of the owner interrupting the use “must be intended to cause and must be of such a character as actually to cause a cessation of use. The cessation of use may be merely temporary, but if it actually occurs as a result of an act of the possessor of the land done for that purpose there is an interruption. An act by the possessor of land intended to cause a cessation of use does not produce an interruption of use unless a cessation of use, temporarily at least, results. The success of the act in causing a cessation of use rather than its form or manner determines its effect as an interruption. Thus, while neither physical obstruction nor verbal or written protest, when disregarded, causes an interruption of use, either, when acquiesced in, is effective to produce an interruption.”
To summarize this element, an adverse possession claimant must show that they used the property continuously for ten years in the same manner as an owner would be expected to use the property and that intermittent or limited use is acceptable if this is how an owner would use the property.
This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.