During our first year of law school, we all had to take the course of real property and learn about many esoteric theories of the law such as the theory of adverse possession.

For most practitioners, we will never actually have to deal with this theory of the law in handling a real estate dispute.

Over the years, however, our state courts have come face to face with individuals and businesses in Pennsylvania claiming some equitable interest in land based upon the antiquated theory of adverse possession.

In Piazza Realty v. Moscariello Development, 2019 Pa. Super. Unpub. LEXIS 2945 (Aug. 6), the Pennsylvania Superior Court had the opportunity to deal with such an instance in the commercial realm.

In 1980, Piazza Realty Co. acquired the property located at 3387 Ridge Pike in Limerick Township, Montgomery County, the opinion said.

Since that time, Piazza Realty, through various corporate entities, had, in various facets, owned, operated, maintained and used the property as an automobile dealership, the opinion said.

In 2005, Moscariello Development acquired the property borderline to the one owned by Piazza Realty, the opinion said.

By that time, Piazza Realty had control and possession of a "certain 'bump-out' on the mutual property line, being a trapezoidal-shaped property containing 1,236 square feet or 2.8% of an acre," the opinion said.

According to the opinion, the bump-out was used, paved and graveled by Piazza Realty and used as a turning radius for vehicles going into and out of garage bays facing Piazza Realty's property and for parking.

In 2014, the zoning code was changed to allow Moscariello Development to develop its property into townhomes and it looked into so developing it, the opinion said.

Soon thereafter, Moscariello Development, through legal counsel, made monetary demands to Piazza Realty, threatening to close off the bump-out if Piazza Realty did not provide them with such financial concessions for the property use and access, the opinion said.

When the parties could not amicably resolve their real estate dispute, Piazza Realty commenced a quiet title action in the Montgomery County Court of Common Pleas against Moscariello Development under the theories of adverse possession and for prescriptive easement.

After a bench trial that took place over the course of a couple of days, the trial court awarded quiet title of the bump-out to Piazza Realty by virtue of adverse possession.

The trial court concluded that Piazza Realty, by and through itself and various businesses which leased its property as an automobile dealership over the years, had been using the bump-out for parking and moving vehicles since 1984, according to the opinion.

Additionally, the trial court noted that, over the years, the bump-out had been improved by Piazza Realty.

The trial court further found that Moscariello Development observed the asphalt bump-out when it purchased its property in 2005 but did not assert an ownership interest in that portion of its property until approximately 2014, the opinion said.

According to the opinion, by 2014, the trial court calculated that Piazza Realty "had been continuously, exclusively, and actually using the asphalt bump-out for 30 years for parking cars, transporting cars and stationing a tractor-trailer for storage in a manner that was visible, notorious, distinct and hostile."

Moscariello Development ultimately appealed the trial court's ruling to the Superior Court.

On appeal, Moscariello Development argued that the trial court erred as a matter of law because Piazza Realty failed to establish their adverse possession of the bump-out.

According to the Superior Court in Piazza Realty, "one who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for 21 years" and, if one of these elements do not exist, "the possession will not confer title."

According to the Superior Court in Piazza Realty, the claimant of adverse possession bears the burdening of establishing adverse possession by credible, clear and definitive proof.

As for the elements of "actual" and "continuous" possession, the Superior Court in Piazza Realty cited to Johnson v. Tele-Media of McKean County, 90 A.3d 736 (Pa. Super. Ct. 2014).

According to the Superior Court in Piazza Realty, "only acts signifying permanent occupation of the land and done continuously for a 21-year period will confer adverse possession."

Furthermore, the Superior Court in Piazza Realty noted that "a sporadic use of land, by one without title to it, will not operate to give him a title, no matter how often repeated."

Rather, the Superior Court in Piazza Realty stated that "residence is not necessary to make an adverse possession" and that "the possession may be adverse by enclosing and cultivating the land", for example.

Quoting Brennan v. Manchester Crossings, 708 A.2d 815 (Pa. Super. Ct. 1998), the Superior Court in Piazza Realty noted that "to establish visible and notorious possession, claimants are required to prove that their conduct was sufficient to place a reasonable person on notice that his land is being held by claimants as their own."

As for the element of "hostile," the Superior Court in Piazza Realty, quoting Flannery v. Stump, 786 A.2d 255 (Pa. Super. Ct. 2001), cautioned that, "while the word hostile has been held not to mean ill will or hostility, it does imply the intent to hold title against the record title holder."

In doing so, the Superior Court in Piazza Realty stated that "the element of hostility requires that the court examine not just the physical facts of possession but also the evidence, if any, probative of the intent with which the land in question was possessed," and that "possession may be hostile even if the claimant knows of no other claim and falsely believes that he owned the land in question."

After reviewing the record established at the trial court-level, the Superior Court in Piazza Realty concluded that "the trial court's findings are supported by the record and comprise 'sufficient competent evidence' to sustain the grant to Piazza Realty of title to the bump-out based upon adverse possession."

The Superior Court in Piazza Realty stated that sufficient evidence existed illustrating that the bump-out had actually, continuously, and visibly been used by automobile dealerships that had leased Piazza Realty's property since 1980.

When Moscariello Development purchased its property, the Superior Court in Piazza Realty calculated that "approximately 20 years and 9 months had passed since Piazza Realty began using the bump-out."

On appeal, Moscariello Development pointed out that its principal member "did not walk the property line near the bump-out because he was not yet developing that portion of his property" and he only personally became aware of the bump-out and Piazza Realty's use of it in 2014.

In upholding the trial court's ruling, the Superior Court in Piazza Realty stated that the alleged ignorance by Moscariello Development of the existence and use of the bump-out by Piazza Realty had no effect on the merits of Piazza Realty's claim for adverse possession.

Lessons Learned

More and more sections of Philadelphia that have been neglected for well over a generation are being developed. As that occurs, real estate developers and investors are being confronted by claims of adverse possession that cannot be discovered through a search of the public records.

Prior to purchasing a property, especially in these sections of Philadelphia, a real estate developer or investor should visit the property on multiple occasions during different times of the day to determine whether there is any potential adverse possession of the property.

Alan Nochumson is the sole shareholder of Nochumson P.C., where his law firm's primary practice areas consist of real estate, litigation, land use and zoning, business formation and general counseling and appellate advocacy. He is also president of Bear Abstract Services, where his title insurance company offers comprehensive title insurance, title examination and closing services. He can be reached at 215-399-1346 or [email protected].