On July 19, the Pennsylvania Supreme Court affirmed the Superior Court and upheld the ancient, yet controversial, practice of “title washing” in Herder Spring Hunting Club v. Keller, 108 A.3d 1279 (2015), (Pa., July 19). In Pennsylvania, title washing occurred under unique circumstances. It applied only to land designated as “unseated” (i.e., undeveloped surface land without improvements). It occurred only where the surface and mineral estates had been severed, either by a sale or a reservation. In cases where a tax sale of the surface occurred, the title to the subsurface became “washed” or extinguished and the subsurface estate merged into the surface estate to become one estate. Consequently, when the surface estate was sold at the tax sale, the purchaser obtained title to both the surface and subsurface estates of the property. Finally, this was a practice that existed only between 1805 and 1947, when the laws of the commonwealth permitted the practice. The impact of title washing is still felt today, however, as the Herder Spring case demonstrates.
Until the court’s decision in Herder Spring, there was considerable debate over the viability of the practice of title washing in Pennsylvania. While it was fairly well-settled that title washing no longer occurred after 1947, it was unclear if the practice continued to have an impact on title in Pennsylvania. Herder Spring finally provides clarity and demonstrates that for those unseated properties that were subject to a tax sale from 1805 to 1947, the minerals and surface, in fact, had been merged by the tax sale and the courts today would recognize the merger. This has the potential to affect numerous individuals’ property rights.
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