A Primer on Addressing Difficult Real Estate Issues in Pennsylvania

Quick Summary

Navigating co-ownership disputes, ejectments, title challenges, and other real estate conflicts can be overwhelming if you’re unsure of your rights and options. This guide aims to present these complex issues in a way that’s easy to understand, helping you identify potential courses of action. If you are facing one of these situations, consider reaching out to Eric B. Smith, Esquire, 215.540.2653 or esmith@timoneyknox.com, for guidance tailored to your unique circumstances.

Ending Co-Ownership and Obtaining Compensation

You own real estate with another person or business entity, and you now want to sell the property, but the other owner refuses to cooperate or participate in the sale. How can you end the co-ownership and yet be properly compensated? Unless you and the other co-owner have a written agreement to the contrary, every co-owner has the absolute right to institute an action in partition.

A partition action allows co-owners who no longer can afford, or want, to own a particular piece of real estate to divest themselves of all ownership for fair compensation. This court-supervised process could result in:

• The physical division of the land
• A sale of some or all of the land
• The individual ownership of some or all of the land by certain co-owners

Also, improvements, expenses, rental issues, liens, mortgages, taxes, and other claims on the real estate are addressed during a partition action and are subtracted or credited from each co-owner’s share of the value of the real estate.

Recovering Rent or Profits from a Co-Owner

If you co-own real estate with a person who rents or occupies the property for their own use and benefit, keeping all of the rent or profit for themselves, you are entitled to recover rent from the co-owner. You may even recover rental value from the co-owner if they themselves are occupying the property while excluding you.

Unless there is a contrary enforceable agreement, Pennsylvania law provides that a co-owner who is not in possession may sue for proportionate rent from the co-owner in possession for the entire period that the co-owner occupies the property for their own use and benefit.

You are entitled to the rent the property would command in the open market had the co-owner not been in possession. A rental claim may also be asserted in a partition action, where the rental value will be deducted from the co-owner’s distributive share after partition.

Removing a Prior Owner or Squatter

You own real estate and the prior owner, a squatter, or some other party remains on the land, or uses the land, and refuses to vacate the property. You may pursue an action in ejectment to compel the wrongful occupants to vacate the property.

Ejectment is an action filed by one who has the right to immediate possession of real estate against the wrongful party who has actual possession. Its purpose is to enforce the immediate right of possession. To succeed, one must prove:

• The immediate right to exclusive possession
• Title to the property that is greater than the party currently in possession

If successful and the Court issues a judgment for possession, the judgment is enforced by the sheriff, who will, if necessary, physically eject the wrongful party. The Court may also award rent, profits, and damages if appropriate.

Protecting a Recorded Interest after Foreclosure

You hold a recorded second mortgage (or other recorded interest in someone’s else’s real estate) and the lender foreclosed on the first mortgage. You received no notice of the first mortgage foreclosure sale. The first mortgage lender contends that the foreclosure sale ended your recorded interest in the real estate.

Pennsylvania law requires that the foreclosing party give notice of the foreclosure sale to:

• All record lien holders
• Every other person who has any record interest or known other interest in the real estate subject to the foreclosure

The divestment of a second mortgage, or other record interest, depends largely on this notice. Unless there is notice, a known interest in real estate cannot be divested. You may bring a quiet title or declaratory judgment action, or, depending on timing, may motion to set aside or challenge the sale.

Adverse Possession in Pennsylvania

For a “long time” you have been consistently and openly using certain real estate as though it was your own. Now, a nearby owner claims that the land belongs to his company and wants you to pay rent or leave. Generally speaking, to have vested rights in land owned by another, you must have:

• Actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land
• Possession for twenty-one (21) years (or, in very limited circumstances involving land under 1/2 an acre in area, ten (10) years)

During that entire period, you must have treated the land as if it were your own, excluding the actual owner’s rights entirely. If you wish to transfer your rights to the disputed ground along with your adjoining ground, you must include the disputed ground in your deed.

In some circumstances, often involving boundary disputes or acceptance of a boundary, the same twenty-one (21) year period applies but without needing to affirmatively show “adverse” conduct. An action to quiet title, or ejectment, is often used to determine and clarify title in connection with adverse possession and other boundary disputes.

If you have a question concerning your rights involving real estate, please contact Eric B. Smith, Esquire, 215.540.2653 or esmith@timoneyknox.com.

Frequently Asked Questions

How long does a typical partition action take, and what factors can affect the timeline?
Expect a partition action to take a least a year, possibly two years, depending on how many owners and complicated legal and factual questions, as well as where the property is located.

Am I entitled to rent from my co-owner if they are occupying the property and I am not?
In most circumstances, yes.  If one co-owner has exclusive possession of the property they owe the out-of-possession owner ½ of the fair rental value.  There may be set-offs to the rent, such as if the co-owner in possession is paying the mortgage, or made significant, needed repairs.

Are there alternative dispute resolution methods—such as mediation or arbitration—that can resolve these issues more quickly?
Yes, mediation and arbitration are always available if the parties agree.  There are significant differences between mediation and arbitration and you should seek legal advice on which best for you, and the circumstances of your case.

How do I remove someone from my property?
If the person, or business, is in possession of your property without right to do so, you may file an action in ejectment which will force the possessor to prove they have a right greater than yours to be on the property.

How do I enforce a second mortgage on a property that has been sold, or foreclosed, and I never received notice of the sale or foreclosure?
A second mortgage may not be divested by a foreclosure unless notice is given as provided by law.  Likewise, a second mortgage needs to be paid when the property is sold, or the second mortgage continues, but, as a first lien.

Does it take 21 years to own someone else’s land?
Yes, in most circumstances it takes 21 years, but, there are other considerations as well.  These other considerations include the nature and kind of possession, whether there is any permission involved, the size and location of the land adversely possessed, and whether at all times you treated, held, and possessed the land as your own.  You must have actual, continuous, exclusive, visible, notorious, distinct and hostile possession for the entire 21-year period.

What is tacking?
Tacking is when the rights of adverse possession acquired by an adverse possessor are conveyed to another person via deed.  Tacking generally is not necessary in the case of boundary disputes, but is needed in virtually all other adverse possession cases.  Tacking allows the next owner, or adverse possessor, to “tack” onto the rights of the prior adverse possessor.

Updated: June 9, 2025

About The Author(s):

Eric B. Smith

Mr. Smith, a partner of Timoney Knox, LLP, serves as Chair of the Firm’s Litigation Group and has been consistently recognized by Super Lawyers and Best Attorneys since 2005.  In 2017 Mr. Smith served as the President of the Montgomery Bar Association.  His commercial and real estate litigation practice spans across the Commonwealth of Pennsylvania.

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