Open & Notorious is an extremely difficult element to understand and prove (and yes, despite the required burden – disprove) in Adverse Possession and Prescriptive Easement cases.

In my humble opinion, much of this relates to an overall misunderstanding of the fact that this single element is actually two elements combined into one. I liken it to the opposing sides of the same coin. Or perhaps more aptly in the case of boundary dispute law, opposite sides of the same fence.

Specifically, while there is only one fence, there are two sides to it – (a) the Adverse Possessor (or Adverse User in the case of Prescriptive Easements) and (b) the Title Holder.

The adverse possessor claims to hold his use out in the “Open.” This is the “side of the fence” that the adverse possessor purportedly “sees.”

And as a result of this the title holder, is supposed to take “Notice.” This is the side of the fence which the title holder purportedly “sees.”

Well, this is all just fine if at some point the title holder takes “Actual Notice.” Couple this with say a posting of a no trespassing sign which the adverse possessor just ignores and the case will move forward to other issues surrounding the element of “Hostility.”

But in many cases, there is no way to prove “Actual Notice.” And because the burden of proof is with the adverse possessor, the law has developed the fiction of “Constructive Notice” in order to combat what from Hogan’s Heroes we might call a “Sargent Schultz” (i.e. “I see nothing- NOTHING!“).

In other words, because it is too difficult for the adverse possessor to prove the element of actual notice, courts determine that it is sufficient for adverse possessors to prove that they have held the land in such a sufficiently open manner that the title holder should have taken notice. That’s the construction – a legal fiction.

However, by allowing this construction, courts will often have to make very refined decisions about whether or not the title holder was actually OR should have actually been put on notice. And in addition the question of “when” this notice was sufficient must also be determined.

Again, that’s great except for the fact that there are often times when people do not have actual notice. As such, they have no idea when the land was altered and because of this they also don’t have a ready means of directly combating the claim that they should have been on notice. Think about it for awhile and I suspect you will think that this is as absurd as I do.

So, let me pose two common sense questions related to this situation.

  1. How often do people find out about an encroachment or adverse use and simply decide it’s not worth taking it up with the neighbors by a visit, a phone call, or a letter?
  2. How often upon finding out about an encroachment or adverse use do people allow that use to continue as a neighborly act?

In other words, in fairness to title holders who are potentially being disenfranchised of their land without a writting AND who do not have the burden of proof, shouldn’t there be a counter balance. If courts were to find this appropriate, I believe that there are two ways that this might be accomplished … at least in part.

  1. Require the fact finder, be it a jury or judge, to specifically determine whether the particular case provides sufficient evidence for the title holder in that case to have taken notice and specify its type – actual or constructive; OR
  2. Allow the court to use a new legal fiction to prop up against that of constructive notice – “Constructive Permission.”

Either, or perhaps both, approaches would provide a significant change to adverse possession and prescriptive easement law. And each would have ramifications not fully encompassing the other. Which one, if not both, would be fair?justice-smiles-green.png