A Primer – Difficult Issues Involving Real Estate in Pennsylvania

This primer is intended to provide easy to understand information to those encountering difficult issues involving real estate in Pennsylvania, including partition, ejectment and title issues.  If you are encountering any of the issues addressed in this guide, you should contact an attorney at once.

Terminating the Co-ownership of Real Estate and Obtaining Compensation for Your Interest

You own real estate with a another person or business entity and now you 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, or 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 subtracted or credited from each co-owner’s share of the value of the real estate.

Recovering Rent or Profits from a Co-Owner of Real Estate

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, to the exclusion of you, 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.

Yes, unless there is a contrary enforceable agreement, Pennsylvania law provides that a co-owner of property who is not in possession of it 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 from Your Real Estate

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.  What are your legal options to remove the person from the land?

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 of the property.

The purpose of an ejectment action is not to determine title, but rather only to determine and enforce the immediate right of possession as between the parties. To succeed, one must prove the immediate right to exclusive possession by demonstrating title to the property that is greater than the party who then is actually 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 in possession so that the rightful party may peaceably occupy the property.  Further, the Court may award rent, profits and damages if appropriate.

Protecting a Recorded Interest in Real Estate after Foreclosure

You hold a recorded second mortgage (or other recorded interest in someone 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 divested (meaning, ended) your recorded interest in the real estate.  What are your options to enforce your second mortgage, or other recorded interest?

Pennsylvania law requires that the foreclosing party give notice of the foreclosure sale to all record lien holders and every other person who has any record interest or known other interest in the real estate subject to the foreclosure.

The divestment (ending) 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.

What is Adverse Possession?

For a “long time” you have been consistently and openly using certain real estate as though it was your own and now, a nearby owner claims that the land belongs to his company and wants you to either pay rent, or to leave the land.

Generally speaking, for you to have vested rights land owned by another, you must have actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one (21) years, although in very limited circumstances involving land under 1/2 an acre in area, a ten (10) year period applies.  Each of these elements must exist to obtain what is called ‘adverse possession.’

During that entire period, in short, you must have treated the land as if it was your own to the total exclusion of the rights of the actual owner.  If you wish to transfer your rights to the disputed ground with your adjoining ground, you must include the disputed ground in your deed transferring title.

In some circumstances, often involving boundary disputes, or confusion about, or acceptance of, a boundary, the same twenty-one (21) year period applies, but without the need of an affirmative showing of “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.

Published Oct 27, 2021

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 Lawyers.  In 2017 he served as President of the Montgomery Bar Association.

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