Also known as: open and notorious · hostile and continuous · adverse possession elements · adverse possession requirements
Written by attorneys — see sources below.
The four elements of possession required to establish adverse possession or a prescriptive easement. Open and notorious use means the claimant's activities are visible and obvious to a reasonable owner inspecting the land. Hostile use means the claimant acts without permission and under a claim of right. Continuous use means the activities occur without significant interruption for the full statutory period, with seasonal patterns permitted when consistent with the land's character.
Lena drives service trucks daily along a visible two-track road on Miguel's ranch to reach her turbines. Miguel sees the trucks and the worn path but never grants permission or objects. After fifteen years the court finds the use open and notorious because the road and traffic are plainly visible to anyone inspecting the ranch.
Oliver and his predecessors farm a strip they believe is theirs because of a misplaced survey stake. They plant crops and graze cattle on the strip every season without interruption. The court allows tacking of their periods because each acted under a good-faith claim of right, satisfying the continuous and hostile elements for the statutory period.
Ophelia and her predecessors occupy a cabin on a neighboring lot they mistakenly believe is theirs. They use the cabin each summer, maintain the grounds, and post no-trespassing signs. The court holds the seasonal pattern satisfies continuity because it matches the recreational character of the property and meets all four elements.
Land surveying errors led to a mismatch between deed descriptions and actual occupations on the shore of Hood Canal in Mason County. As long ago as 1932, McCall resided in the house now occupied by the Kuntos under a deed describing a 50-foot-wide parcel that was adjacent to the lot where the house stood. Several property owners to the west of defendants were similarly situated. Since 1946, several conveyances occurred using the same legal description accompanied by transfer of possession to succeeding occupants. The Kuntos' immediate predecessors, the Millers, had a survey performed to build a dock which indicated conformity between deed and occupation, leading to placement of boundary stakes and construction of improvements. The Kuntos took possession of the disputed property under a deed from the Millers in 1959. In 1960, the Howards, who held land east of the Kuntos, undertook a survey to convey an undivided one-half interest to the Yearlys. The survey revealed that the Howards were record owners of land occupied by the Moyers and the Moyers held record title to land occupied by the Kuntos. In April 1960, Howard obtained a conveyance from Moyer of the land upon which the Kunto house stood in exchange for conveying the land upon which the Moyer house stood. Until that conveyance, neither Moyer nor predecessors asserted any right to the property possessed by Kunto and predecessors. Plaintiffs instituted this action to quiet title on August 19, 1960, when defendants had been in occupancy of the disputed property less than a year. The trial court denied the Kuntos' claim of adverse possession, finding a lack of continuity of possession or estate to permit tacking and that defendants' possession was not continuous because it involved only summer occupancy. Defendants appealed from the decree quieting title in the plaintiffs.
View caseOrion clears and gravels a path across an adjoining strip and drives forklifts over it every workday for eighteen years. He resurfaces the path at his own expense while the true owner never objects. The court recognizes the use as open, notorious, hostile, and continuous, creating a prescriptive easement.
Oriana grades and signs a gravel lane across a neighbor's land as the only vehicle route to the public road. She maintains the lane and directs client traffic over it for fifteen years without permission. The court finds the visible improvements and regular use satisfy the open, notorious, hostile, and continuous requirements.
Octavia's condominium residents walk daily across a vacant corner lot to reach the beach, creating a visible dirt path. The owner never objects for over twenty years. The court holds the foot traffic meets the open, notorious, hostile, and continuous elements, establishing a prescriptive easement.
No. Shared use does not defeat adversity when the claimant acts under a claim of right without permission. The key is that the use occurs without license from the owner, not that it is exclusive.
Yes. Seasonal use that is consistent with the nature and character of the property satisfies continuity when the pattern continues without significant interruption throughout the statutory period.
No. Good-faith use under a mistaken belief that the land is the claimant's own satisfies hostility and permits tacking of successive periods of possession by predecessors.
No. Exclusivity is not required for a prescriptive easement. The claimant need not be the only user. The elements focus on adverse, open and notorious, and continuous use.
No. Long open use without permission is presumed adverse. Permission must be shown by an express grant or circumstances indicating a neighborly license. Mere silence does not defeat adversity.
…he had no intention of possessing or holding anything other than what the deed called for; and, that there is no showing of any continuous possession by defendants or their immediate predecessors in interest, since the evidence indicates the property was in the nature, for us, as a summer occupancy, and such occupancy and use…