This post is part 3 of a 6-part series on Washington’s adverse possession doctrine.

As a refresher, the adverse possession doctrine generally encompasses four elements: (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile. LeBleu v. Aalgaard, 193 Wash. App. 66, 78 (2016).

This post will examine the “Open and Notorious” element.

While open and notorious are two distinct concepts, Washington courts treat the two as synonyms. The open and notorious requirement is met if (1) the true owner has actual notice of the adverse use throughout the statutory period, or (2) the claimant uses the land so any reasonable person would assume that the claimant is the owner. No Washington case distinguishes between “notorious” and “open.”

“Open and Notorious” possession has been defined similarly to the test for “exclusive” possession in that the claimant’s claim of ownership must be evidenced by acts and conduct sufficient to put a person of ordinary prudence on notice that the land is held by the claimant as their own. Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984). As the posts go through the remaining elements, you will note the continuing overlap of this theme – the adverse possessor must use the disputed land as its true owner would use it.

When determining if the Open and Notorious element, or any of the elements, have been met, the asserted use of the property must be weighed in light of the property’s nature and location. Krona v. Brett, 72 Wn.2d 535, 539, 433 P.2d 858 (1967). The use required to adversely possess a developed urban lot may well differ from an undeveloped rural property. Chen v. Thomas, an unpublished opinion of Division Two of the Court of Appeals, discusses this point.

Chen dealt with a beach trail on Bainbridge Island. While serving the Thomas property, the trail meandered across the Chen property, where it ran for a length before crossing back onto the Thomas property and ultimately the beach. Thomas testified that they kept the trail looking natural and that if it was left untouched for two weeks, the vegetation overtook the trail. Importantly, the court found that Mr. Chen did not see a clearly visible trail until 1999 when Mr. Thomas clear cut the trail. Based on the lack of visibility and limited use, the court found that Thomas’ use of the trail was not open and notorious as a reasonable person would not have noticed it, nor did Chen.

Taking the visibility step further is another unpublished opinion of the Court of Appeals, Kerby v. Auttelet. Again, a case involving rural or acreage property. The trial court found against Auttelet, the adverse possessor, which the court of appeals found to be error. In 1987, Auttelet erected a fence from metal posts and round horse wire to contain horses on the disputed property. He sprayed the fence line for weeds, removed dead trees, cleared brush, planted grass, and cut firewood. After installation of the fence, Auttelet built and used paddock fences or gates to graze horses in different parts of the containment area. The trial court noted that the property in dispute was wooded and brushy, making it difficult to see whether a fence existed from the Kerbys’ house, and based on this, found that the use was not open and notorious. The court of appeals noted that it was correct of the trial court to consider the condition of the land. However, whether Kerby could see the fence from his house farther up the hill on his lot was not the material question. Nor does the law require the owner to know the full extent of the use over every inch of the property. The material question was whether, given the condition of the land, Kerby had actual or constructive notice of Auttelet’s use: was it visible, there to be seen by Kerby. The court of appeals answered in the affirmative finding that while Kerby did not know of the precise location of the northern boundary of the fence until he logged his property, he could observe Auttelet’s use of the land: it was cleared in parts up to the fence line. Kerby could have inspected that fence line and the use of the land based on that knowledge. The use was not hidden; it was there to be seen.

Moving from rural to urban land, Riley v. Andres, 107 Wn. App. 391, 27 P.3d 618 (2001), dealt with a disputed strip of land between two lots adjoining a golf course in Lakewood. The court found that the Rileys planted several rhododendrons and other bushes, and installed a sprinkler system in the disputed area. Four of the Rileys’ sprinkler heads were in the disputed area: two heads were near the original boundary line and two were near the claimed boundary line. Over time, foliage hid the sprinkler heads. Neither neighbor built a fence because covenants prohibit fences within 30 feet of the fairway. The Andres first challenged the Rileys’ adverse possession claim, arguing that landscaping alone was not “open and notorious” possession. Rejecting this argument, the court noted that while planting trees without maintaining or cultivating them is not open and notorious use, according to the Rileys, they did more than plant trees and shrubs. After planting several rhododendrons and other bushes in 1968, the Rileys maintained the landscaping on the strip, at least until 1993. They watered and pruned the plants, spread beauty bark, and pulled weeds. Here, landscaping was the typical use for land of this character.

Ultimately, the test is whether the claimant’s use was such that an ordinarily prudent person would know that claimant is using the land as an owner would use their land, which use must be judged in relation to the character of the land.


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.

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