An Overview Of Adverse Possession In Pennsylvania: Open, Exclusive And Hostile

Before the concept of legal title there existed perhaps one of mankind’s earliest maxims regarding property of all kinds:  Possession is title.  Whether a weapon, or pelt, or hunting ground, water-source, or herd of domesticated animals, if one possessed it, even if it belonged to another, the party with possession held the stronger position.

The dispossessed party, before the foundation of the laws of title, could only rely on physical strength and force, or the collective wisdom of the community, to wrest possession away from the dispossessor.  As for land, the concepts of law and equity, and more specifically with respect to real property, the laws of title, have developed formal requirements, and defenses, applicable to when a person lawfully may acquire land from the true owner by use, possession and occupancy.

This is the doctrine of adverse possession.  Under Pennsylvania law, one who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one (21) years. Baylor v. Soska, 658 A.2d 743, 744 (Pa. 1995).  As a corollary, it has long been held that temporary acts on the land are not the ‘actual possession’ required under the doctrine of adverse possession.

The Core Elements of Adverse Possession

 Actual, visible, notorious, and continuous possession

 ‘Actual possession’ of land is “dominion over the land. . . .” Reed v. Wolyniec, 471 A.2d 80, 85 (Pa. Super. Ct. 1983); Klos v. Molenda, 513 A.2d 490 (Pa. Super. Ct. 1986).  For instance, in Klos, the adverse possessors continuously maintained a lawn benefitting their residence.  In Burns v.Mitchell, 381 A.2d 487 (Pa. Super. Ct. 1977) the Court found that maintaining a lawn up to a fence amounted to actual possession of the disputed area.  As explained by the Court in Reed v. Wolyniec, possession of land is dominion over the land, meaning, the element of possession it is not equivalent to occupancy.

As for the element of continuity, Reed explains that, generally, that element is not destroyed by “a temporary break or interruption, not of unreasonable duration . . . .”  However, continuity may be broken where there is either “an abandonment or possession must be taken by one disconnected with the previous holder.”

“Visible and notorious” possession means that “ownership must be evidenced by conduct sufficient to place a reasonable person on notice that his or her land is being held by the claimant as his own.”  Brennan v. Manchester Crossings, 708 A.2d 815, 818 (Pa. Super. Ct. 1998).  For one claiming adverse possession, continuous possession is paramount.

Possession must be “distinct and exclusive.”

Of course, possession must also be distinct and exclusive.  To constitute distinct and exclusive possession for purposes of establishing title to real property by adverse possession, the claimant’s possession need not be absolutely exclusive. Reed;  Rather, it need only be a type of possession which would characterize an owner’s use.  Brennan.

Each of these requirements are fact intensive and developing the facts to prevail upon, or defend against, a claim of adverse possession is extremely important.

Possession must be hostile.

Pennsylvania courts hold:

[T]he word ‘hostile’ as an element of adverse possession does not mean ‘ill will’ or actual ‘hostility,’ but simply implies an assertion of ownership rights which are adverse to those of the true owner and all others. Further, if all the elements of adverse possession are established, the element of hostility is implied.

Brennan, 708 A.2d at 822.  For example, if the owner of the land directs the adverse possessor to leave the property, then, to maintain hostility, the adverse possessor must stay.  As Brennan states, if all of the other elements of adverse possession are met, hostility is implied.

Statutory Periods and Tacking

Statutory Period
Twenty-one (21) year statutory period

All of the elements of adverse possession must be met and maintained for a period of time of twenty-one (21) years without interruption.  42 Pa.C.S. § 5530.

Tacking Explained

Pennsylvania law holds that in most circumstances “tacking” requires privity of title, meaning, the land acquired by adverse possession must be stated within the granting deed to a new landowner for that new owner to ‘tack’ onto the prior years of adverse possession by the grantor.[1]  This allows the twenty one (21) year period to be attained through the possession of multiple owners over a number of years, all adding up to twenty one (21) years.  The Supreme Court in Baylor v. Soska, 658 A.2d 743, 744 (Pa. 1995) explained:

[T]he possession of successive occupants may be tacked, but only where there is privity between them. For our purposes, ‘privity’ refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law. But a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor. The deed, in itself, creates no privity as to land outside its calls.

Id. at 745.  There are notable exceptions to tacking, particularly with respect to boundary disputes and related doctrines that are not addressed in this article.

There are also rarely applicable exceptions to tacking applicable only in a purely adverse possession scenario.  Pennsylvania law recognizes rarely applied exceptions to any requirement of tacking by privity of title.  One of those exceptions arises where “an intent to convey more than the described premises may be inferred from circumstances, and perhaps from the deed itself.”  Gerhart v. Hilsenbeck, 63 A.2d 124, 127 (Pa. Super. Ct. 1949).  Gerhart discusses a long and continuous exception to tacking by privity of title, explained in the early case of Scheetz v. Fitzwater, 5 Pa. 126, 131, 1847 LEXIS 13 (Pa. 1847).

Scheetz concerned a dried up millpond, adversely possessed by another, and was held to pass by title to the mill itself, under separate title.  The Supreme Court in Scheetz held that the millpond, dried up or not, was an appurtenance to the mill itself, and when the dried pond was adversely possessed by the owner of the mill, transfer of the mill also transferred title to the now dried pond.

Scheetz and the “other circumstances” exception to tacking by privity of title are acknowledged in a long line of cases,[2] including at footnote 7 of the Supreme Court’s often cited opinion in Baylor v. Soska, 658 A.2d 743, 746 (Pa. 1995), which confirms this exception to Baylor’s privity by title requirement.

Notably, the recent Superior Court case of Hockman v. Hursh, 2021 Pa. Super. Unpub. LEXIS 886, held that tacking by privity of title is not necessary where the grantor “intended to convey the entire property” to the adverse possessor.  Hockman involved a garage and grass area that encroached onto a neighbor’s property, but, were clearly intended to be sold together as part of grantor’s property, as a single unit, however, the granting deed did not reflect this.

Modern Developments and Special Cases

Ten (10) year statutory period

Pennsylvania House Bill 352, shortening the necessary period of time for adverse possession in very specific circumstances to just ten (10) years, is codified at 42 Pa.C.S. § 5527.1.  This statute is limited in its applicability to only “contiguous lots.”  This means a piece of land that is abutting, or adjoining, the adverse possessor’s land.  There are more limitations as well, including that the adverse possessor’s adjoining land must be improved by a single-family dwelling that is and has been occupied by the possessor seeking title under this section for the full 10 years and identified as a separate lot.

Additionally, only “contiguous lots” that have been regularly used as part of and incident to the adverse possessor’s real property are subject to the 10 year limit.  Also, in order to acquire title to the contiguous lot, that lot may not exceed a total area of one-half acre when combined with the adverse possessor’s real property.

Moreover, a quiet title action is required with a notice of the action provided to the lot owners, their heirs, successors and assigns, providing them the opportunity to file an ejectment action to dispute the adverse possession within one year of the notice.

If ejectment is pursued by the owner of the lot, and the lot owner prevails, then both the 10-year statute of limitations and the 21-year statute of limitations of 42 Pa.C.S. § 5530 are tolled.  If no action in ejectment is filed and served within the one-year period, then judgment may be entered by the court granting title to the real property by adverse possession under this section and the rules of procedure.

42 Pa.C.S. § 5527.1 is very technical, highly restrictive, and applies in very narrow circumstances.  Practically, this statute applies chiefly in Cities and Boroughs, or, in rural areas, at the center of unincorporated towns or villages, where lots have been laid out in a size of less than ½ an acre.

Do You Need Assistance with Adverse Possession?

If you have a question concerning adverse possession, please contact Eric B. Smith, Esquire, at 215-540-2653 or esmith@timoneyknox.com.

References

[1] There are narrow and seldom used exceptions to tacking, as explained in this article.

[2] See Gerhart v. Hilsenbeck, 63 A.2d 124, 127 (Pa. Super. Ct. 1949); Castronuovo v. Sordoni, 515 A.2d 927 (Pa. Super. Ct. 1986); Wittig v. Carlacci, 537 A.2d 29 (Pa. Super. Ct. 1988); Glenn v. Shuey, 595 A.2d 606 (Pa. Super. Ct. 1991); Baylor v. Soska, 658 A.2d 743 (Pa. 1995); Zeglin v. Gahagen, 812 A.2d 558 (Pa. 2002).

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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