Frank Kosir Jr. of Meyer Unkovic & Scott.

The past year saw some notable rulings in the area of real property in Pennsylvania, including a pair of results regarding specific performance and easements that should inform future cases.

• Court says contract terms do not preclude specific performance.

In Maisano v. Avery, the Pennsylvania Superior Court addressed the issue of whether a seller of real property may seek damages for specific performance from a buyer that is unable to consummate the transaction.

Daniel and Patricia Maisano are the owners of a 20-acre parcel of real property situated in Chester County, Pennsylvania. In December 2004, the Maisanos entered into an agreement of sale to sell the property to Marsha Avery. The agreement did not include a liquidated damages clause and, at the time of her signing the contract, Avery made a nonrefundable payment of $150,000 to the Maisanos. However, Avery was unable to obtain financing to complete the transaction, and the parties executed several addendums to the agreement, affording Avery additional time to obtain financing. Despite these extensions, Avery was ultimately unable to obtain financing and terminated the agreement.

The Maisanos then commenced an action against Avery in the Chester County Court of Common Pleas, seeking specific performance or, in the alternative, monetary damages. The trial court awarded the Maisanos liquidated damages in the amount of $150,000 (the amount of the nonrefundable deposit), concluding that specific performance was not an appropriate remedy. The sellers then appealed to Superior Court.

On appeal, the appellate court reversed and remanded the matter to a trial court for a trial on the issue of whether the Maisanos were entitled to damages in the full amount of the sale price set forth in the agreement. In issuing its opinion, the court concluded that the terms of the contract did not preclude the sellers from seeking specific performance. Furthermore, in the context of a sale of real estate, a seller's seeking of specific performance is tantamount to their seeking payment of the full purchase price, which is certainly permitted under applicable Pennsylvania case law. For these reasons, the Maisanos were entitled to seek relief in the form of specific performance, and the matter had to be remanded to a trial court for a hearing on the issue of whether the sellers had established their right to recover the full purchase price.

Paper Streets and Easements

In Cunningham v. Cronin, the Superior Court addressed the issue of whether the owners of lots in a subdivision held an easement over an unopened street in that plan. In the 1930s, the Coyne Plan of Lots (the plan) was recorded in the office of the Allegheny County recorder of deeds. The plan consisted of 28 residential lots fronting on Coyne Terrace, a private road 40 feet in width, and also included an alleyway (lot) 10 feet in width. Located on this lot was a set of concrete steps that connected the plan to an adjoining city street. The lot had been used for years by the plan's residents as a means of pedestrian ingress, egress and regress. However, in 2009, the Allegheny County Office of Property Assessments assessed the lot for real estate tax purposes and, after the real estate taxes went unpaid, sold the lot at a tax sale to Beth Cronin, an adjoining landowner.

Cronin put a fence around the lot and excluded her neighbors from using the steps. In response, Moshe Marvit and Gina Godfrey, who owned other homes in the plan, commenced a civil action against Cronin in the Allegheny County Court of Common Pleas, seeking a judgment establishing their easement rights in the lot. The trial court entered judgment for Cronin and Marvit and Godfrey appealed.

On appeal, our Superior Court reversed. In its ruling, the court noted that Pennsylvania real property law provides that where an alleyway or paper street is set forth in a recoded subdivision plan, all of the owners of lots in that plan obtain an easement over those paper streets and alleys. In this case, the record plainly established that Godfrey and Marvit were owners of lots in the plan and, as such, they possessed easement rights in the alleyway, so Cronin could not interfere. The court further dismissed Cronin's argument that her purchasing the property at a real estate tax sale served to terminate any easement that Godfrey and Marvit may have had, noting that a tax sale purchaser takes whatever title its predecessor held and that Cronin's predecessor held title to the alleyway subject to the easement.

Frank Kosir Jr. is an attorney at Pittsburgh-based law firm Meyer, Unkovic & Scott. Contact him at [email protected].