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Developing properties in Philadelphia has many challenges since this is a “row-home” city, which means the building structures are connected to one another and, thus, there is no room for error if a building structure is not properly situated on a property.

In Rosborough v. Carmel Developments, 2022 Pa. Super. Unpub. Lexis 2374 (Oct. 7, 2022), the Pennsylvania Superior Court recently applied the doctrine of consentable lines to a property dispute between a real estate developer and adjoining property owners regarding a portion of the real estate developer’s property that these neighboring property owners had been utilizing as a portion of their backyard.

Between 2018 and 2019, the real estate developer, Carmel Developments, Inc., demolished the existing building structure on the property it owned and erected a larger building structure based upon the metes and bounds described in its deed to the property.

However, during the construction of this larger building structure, Danielle Rosborough and Ryan Bateman, the property owners directly adjacent to Carmel Developments’ property, claimed that the new building structure encroached upon part of their property’s backyard, which they owned by virtue of the recognition and acquiescence of their use of that portion of Carmel Developments’ property over time.

According to the adjoining property owner, from at least 1996 until late 2018, the respected boundary line was a poured piece of concrete on the land that was encompassed by fencing or walls that completely enclosed their rear yard which, unbeknownst to them at the time, included a portion of the property now owned by Carmel Developments.

When the parties could not amicably resolve this property dispute, the adjoining property owners filed a complaint in ejectment against Carmel Developments in the Philadelphia Common Pleas Court where they asserted ownership of the disputed portion of the property owned by Carmel Developments by way of the doctrine of consentable lines.

In the complaint, the adjoining property owners alleged that Carmel Developments trespassed upon their property by digging out land, laying a foundation for a wall and damaging and partly destroying a fence and a wall on their property without permission and in violation of their fee simple ownership, the opinion said.

The adjoining property owners also stated in the complaint that the parties and their predecessors recognized and acquiesced to this wall as the boundary line between the properties.

In response, Carmel Developments filed an answer to the complaint by denying the existence of the encroachment and asserting that the referenced wall had never served as the boundary line. Rather, Carmel Developments argued that it should be allowed to abide by the boundary line set forth in the parties’ respective deeds.

Following a nonjury trial, the trial court entered a ruling finding in favor of the adjoining property owners based upon the doctrine of consentable lines.

In doing so, the trial court found that a consentable boundary line was established by recognition and acquiescence, but only awarded nominal damages to the adjoining property owners.

Both parties ultimately appealed the trial court’s ruling to the Superior Court.

The Superior Court in Rosborough first tackled whether the trial court properly found such a consentable boundary line through recognition and acquiescence.

In citing to Plott v. Cole, 547 A.2d 1216 (Pa. Super. Ct. 1988), the Superior Court in Rosborough noted that “the doctrine of consentable line exists, which is a separate and distinct theory from adverse possession, is a rule of repose for the purpose of quieting title and discouraging confusing and vexatious litigation.”

Under the doctrine of consentable lines, a party must establish that each party has claimed the land on their side of the line as their own and that the occupation has occurred for the statutory period of 21 years.

Quoting the Supreme Court in Zeglin v. Gahagen, 812 A.2d 558 (Pa. 2002), the Superior Court in Rosborough emphasized that “decisions involving acquiescence are frequently distinguished from adverse possession cases only in that possession in the former are often based on a mistake as to the location of property lines.

The Superior Court in Rosborough pointed out that, “because the finding of a consentable line depends upon possession rather than ownership, proof of passage of sufficient time may be shown by tacking the current claimant’s tenancy to that of his predecessor.”

Relying upon the Superior Court’s ruling in Soderberg v. Weisel, 687 A.2d 839 (Pa. Super. Ct. 1997), the Superior Court in Rosborough reasoned that, “when a consentable line is established, the land behind such a line becomes the property of each neighbor regardless of what the deed specifies” and “in essence, each neighbor gains marketable title to that land behind the line, some of which may not have been theirs under their deeds.”

In reviewing the merits of the appeal, the Superior Court in Rosborough relied upon the parties’ deeds as well as communications between Carmel Developments’ representatives and one of the adjoining property owners to demonstrate the adjoining property owners’ continued possession of the disputed land in their backyard.

The adjoining property owners then challenged the trial court’s failure to relocate the boundary line through equitable relief.

On appeal, the adjoining property owners asserted that they presented prima facie evidence of the extent to which the new building structure encroaches on the disputed portion of their backyard.

Disagreeing with the adjoining property owners’ assertion, the Superior Court in Rosborough concluded that the record lacked any “definitive testimony regarding the dimensions of the disputed property … or any basis upon which to fashion an equitable award.”

In particular, the Superior Court in Rosborough emphasized that the adjoining property owners’ expert witness at trial admitted that he could not make a precise measurement between the old wall and the new wall constructed between the properties, nor did the adjoining property owners point to a specific diminution in value following the encroachment of the new construction.

Further, the adjoining property owners admitted that they were able to continue the use of their backyard, that their grill remained in the same location, and that they could still exit the storm cellar door located in the backyard.

Lessons Learned

This eye-opening decision should urge property owners throughout Pennsylvania to proceed with caution when redeveloping in tightly packed row-home neighborhoods. In essence, both real estate developers and their adjoining property owners should diligently review deeds, surveys and legal descriptions rather than rely upon existing features of the given properties when real estate development is contemplated and then occurs.

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Victor Adeniran, a second-year law student at Villanova University’s Charles Widger School of Law, who is interning at the firm, assisted in the preparation of this article.

Alan Nochumson is the sole shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-399-1346 or alan.nochumson@nochumson.com.

Alex Goldberg is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.goldberg@nochumson.com.

Reprinted with permission from The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.