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Latest from the Blog

12 February, 2016

Dealing with a Legal Issue Across State Lines

February 12, 2016 By: Kevin Cornish Consider this scenario: Your family decides to spend a week in the summer on the Maryland Eastern Shore. You…

4 August, 2015

Partner Eric B. Smith Presented at Albright College in Reading

  On July 31, 2015 Partner Eric B. Smith gave a presentation at Albright College, Reading, Pennsylvania, concerning the City of Reading Charter Board to…

5 August, 2014

Murder, She Wrote (But Not On A Seller's Property Disclosure Statement)

By Eric B. Smith, Esquire August 5, 2014 Why a Real Estate Seller Doesn’t Have to Disclose the Awful Crime that Occurred There The Pennsylvania…

22 July, 2014

Partner Eric B. Smith as a Part-time Montgomery County Assistant Solicitor

NORRISTOWN, Pa. (July 22, 2014) – The law firm of High Swartz announced that Partner Eric B. Smith has been appointed a part-time Solicitor for…

Popular Q&A

Rights of Second Mortgage Holder

I hold a recorded second mortgage and the lender foreclosed on the first mortgage. I received no notice of the first mortgage foreclosure sale. The first mortgage lender contends that the foreclosure sale divested my second mortgage. What are my options to enforce my second mortgage?

Read the answer

Partition of co-owned real estate

You own real estate with a another person or business entity and now want to sell the property, but the other owner refuses to cooperate or participate in the sale. How can you relinquish ownership to the property, yet be properly compensated?

Read the answer

Ejectment of persons from real estate

I purchased real estate through a foreclosure or tax sale and the occupants will not vacate the property. What are my legal options?

Read the answer

Featured Definition

Reformation

An equitable remedy by which a court will modify or correct a written agreement or instrument to reflect the actual intent of the parties.

Why Eric B. Smith Should Be Your PA Real Estate Litigation Attorney

Pennsylvania real estate litigation can often be comprised of complex, multi-party disputes involving large sums of money, unique real estate, sentimental property, and even one’s own home. High Swartz Partner and Real Estate Litigation attorney Eric B. Smith possesses the experience, patience and vision to win, making him your first choice as real estate litigation counsel.

Eric handles all aspects of real estate litigation, providing the client with a unique understanding of Pennsylvania law and an experienced perspective on the best and most economical way to proceed. Eric’s real estate litigation practice encompasses the entire eastern half of Pennsylvania, and locally Montgomery, Chester, Bucks, Delaware and Philadelphia counties. Further, Eric has significant experience in actions involving quiet title, adverse possession, boundary disputes, partition, jointly owned real estate, easements, ejectment, title disputes, mechanics’ liens, and eminent domain. His experience allows him to provide his clients with insight on the best strategy to reach the client’s goals. Eric advises his clients based on his years of experience, understanding of the Court system and, most importantly, an understanding of his clients’ expectations. As a visitor to this portal, please use it to view current developments through industry news sources, an in-depth glossary of legal terms, real life Q&As, and Eric’s own blog posts.

Eric B. Smith has had a passion about the law since childhood, and his focus became real estate law, especially litigation. He initially formed an appreciation of real estate and property rights while raised in the Lehigh Valley, which was solidified during Real Property courses taken while attending The Dickinson School of Law.  Specifically, Eric’s real estate litigation practice includes quiet title, adverse possession, boundary disputes, partition, jointly owned real estate, easements, ejectment, title disputes, mechanics’ liens, and eminent domain.  In addition to real estate litigation, Eric’s practice areas also include litigating business disputes, such as breaches of contract, Contractor and Subcontractor Payment Act claims, construction defects, municipal litigation chiefly involving home rule charter enforcement; he also provides general advice to a broad array of corporate and individual clients concerning matters such as real estate sales and purchases, leasing and evictions, contract review and drafting, and specific strategic advice on non-litigation matters.  Representative clients include Home Depot U.S.A., Inc., First American Title Insurance Company and the City of Reading Charter Board.

Among his peers, Eric is seen as appropriately aggressive, knowledgeable, thorough, hard-working, a critical thinker, and committed to a timely and economical result for the client.  Eric’s reputation as a real estate litigation attorney has been earned by applying these strengths in the matters he handles for his clients.   When meeting Eric for the first time, you sense his passion for the law, for seeing all sides of a situation and plausible approaches, and no-nonsense approach to achieving client results.  He believes that to be effective and achieve optimal, economical results for his clients, he must keep the client apprised at each step of the matter with realistic advice and outthink, outwork and be more committed to the case than the opposition.  On several matters over the past year, after being retained as counsel to replace a client’s prior attorney, Eric brought multiple hotly contested, heavily litigated and longstanding partition actions to conclusion after collaborating with the clients to find a clear path to a successful outcome, and then remaining dedicated to that course.

If you’d like to know more about Eric’s education, past work experience, legal association memberships, publications, etc., click here to visit his curriculum vitae.

Real Estate Law Blog

Dealing with a Legal Issue Across State Lines

February 12, 2016 By: Kevin Cornish Consider this scenario: Your family decides to spend a week in the summer on the Maryland Eastern Shore. You…

Read More

Partner Eric B. Smith Presented at Albright College in Reading

  On July 31, 2015 Partner Eric B. Smith gave a presentation at Albright College, Reading, Pennsylvania, concerning the City of Reading Charter Board to…

Read More

Murder, She Wrote (But Not On A Seller's Property Disclosure Statement)

By Eric B. Smith, Esquire August 5, 2014 Why a Real Estate Seller Doesn’t Have to Disclose the Awful Crime that Occurred There The Pennsylvania…

Read More

Partner Eric B. Smith as a Part-time Montgomery County Assistant Solicitor

NORRISTOWN, Pa. (July 22, 2014) – The law firm of High Swartz announced that Partner Eric B. Smith has been appointed a part-time Solicitor for…

Read More

Bretz v. Central Bucks School District – a Primer on Pennsylvania Stormwater Law

By Eric B. Smith, Esq. April 22, 2014 On February 21, 2014, in Bretz v. Central Bucks School District, 86 A.3d 306 (Pa. Commw. Ct.…

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Let the Sunshine in – Smith v. Richmond Township and Limitations on the Sunshine Act

By Eric B. Smith, Esq. February 26, 2014 In December 2013 the Pennsylvania Supreme Court held in the case of Smith v. Richmond Township, 82…

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Eric B. Smith Elected Treasurer of Montgomery Bar Association

NORRISTOWN, Pa. (February 25, 2014) – High Swartz LLP, a general practice law firm based in Norristown, Pa., announced that the Montgomery Bar Association elected…

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Eric Smith Obtains Summary Judgment

High Swartz partner Eric B. Smith, who concentrates his practice on commercial and real estate litigation, recently obtained summary judgment against Pennsylvania American Water Company…

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Eric Smith Defeats Recent Zoning Appeal

High Swartz partner Eric B. Smith, who concentrates his practice on commercial and real estate litigation, recently defeated a zoning appeal on behalf of neighboring property…

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Real Estate Law

Q: Can a Buyer rely on a Seller’s zoning representation when purchasing real estate? A: The Seller’s zoning representation indicates only the property’s zoning classification.…

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Questions & Answers

  • I hold a recorded second mortgage and the lender foreclosed on the first mortgage. I received no notice of the first mortgage foreclosure sale. The first mortgage lender contends that the foreclosure sale divested my second mortgage. What are my options to enforce my second mortgage?

    Pennsylvania law requires that the foreclosing party give notice of the foreclosure sale to all record lien holders and every other person who has any record interest or known other interest in the property. The divestment of a second mortgage depends largely on this notice. Absent notice, a known interest in real estate cannot be divested. You may bring a quiet title or declaratory judgment action, or, depending on timing, may motion to set aside or challenge the sale.

  • You own real estate with a another person or business entity and now want to sell the property, but the other owner refuses to cooperate or participate in the sale. How can you relinquish ownership to the property, yet be properly compensated?

    Unless you and the other co-owner have a written agreement to the contrary, every co-owner has the absolute right to institute an action in partition. Apartitionactionallowsco- owners who no longer can afford, or want, to own a particular piece of real estate to divest themselves of all ownership for fair compensation. The end result of this court supervised process could result in the physical division of the land, a sale of some or all of the land, or the individualownershipofsomeorallofthelandbycertainco-owners. Also,improvements, expenses, unpaid rental, liens, mortgages, taxes and other claims on the real estate are addressed during a partition action and subtracted or credited from each co-owner’s share of the value of the real estate.

  • I purchased real estate through a foreclosure or tax sale and the occupants will not vacate the property. What are my legal options?

    You may pursue an action in ejectment to compel the occupants to vacate the property. Ejectment is an action filed by one who does not possess the real estate at issue, but who does have the right to possess it, against the party who has actual possession of the property. The purpose is not to determine title, but rather only the immediate right of possession as between the parties. To succeed, one must prove the immediate right to exclusive possession by demonstrating paramount title to the property over the party who then is actually in possession. Merely demonstrating the weakness of the party in possession will not suffice. If the plaintiff is successful and the Court issues a judgment for possession, the judgment is enforced by the sheriff, who will, if necessary, eject the party in possession so that the party who is entitled to possession may peaceably occupy the property. Further, the Court may award rent, profits and damages if available.

  • I own real estate with person who rents or occupies the property for their own use and benefit, excluding me. Am I entitled to rent from that co-owner?

    Yes, unless there is a contrary enforceable agreement. Pennsylvania law provides that a co-owner of property who is not in possession of it may sue for proportionate rent from the co-owner in possession for the entire period that the co-owner occupies the property for their own use and benefit. You are entitled to the rent the property will command in the open market had the co-owner not been in possession. A rental claim may also be asserted in a partition action, where the rental value will be deducted from the co-owner’s distributive share after partition.

  • I am a contractor that performed work under a written construction contract and have not been paid for my work. The owner of the property improved by my work never notified me of any deficiencies in my performance under the contract and the balance is now past due over 30 days. What recourse do I have?

    In addition to the traditional remedies of breach of contract and mechanics’ liens, Pennsylvania law also provides a statutory remedy known as the Contractor and Subcontractor Payment Act (“Act”). The Act provides that, unless agreed otherwise, payment shall be made within 20 days after the end of the billing cycle or 20 days after delivery of the invoice. The Act assesses interest at the rate of 1% per month. Notice must be provided by the owner to the contractor if any payment is withheld for a deficiency item. Should a contractor commence arbitration or litigation to recover payment and if it is determined that the owner violated the Act, the contractor is entitled to penalty interest of 1% per month. The substantially prevailing party shall be awarded a reasonable attorney fee and expenses. Under the Act, subcontractors are entitled to rights similar to those of contractors.

Glossary

  • Adverse Possession

    Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, as long as the possession is continuous, hostile to the interests of the true owner, open and notorious, actual, and exclusive for 21 years.

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  • Co-Tenant Rent

    Where property is held by two or more persons as tenants in common, and one or more of the tenants is in sole possession of the real estate, the owner who is not in possession can sue and recover his or her proportionate share of the rental value of the property.   This right is created by statute in Pennsylvania.

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  • Consentable Lines

    Pennsylvania Law disfavors hyper-technical, rigid determinations of real property rights where the facts and circumstances warrant a departure from the broader rules of general application. When an actual, de facto boundary between two adjoining properties exists apart from the legal descriptions of both properties by deed, Pennsylvania Law provides that property lines which are respected and mutually acquiesced to for a statutory prescribed period of twenty-one (21) years become the legal boundary between the properties. The Pennsylvania Supreme Court has recognized the doctrine of “Consentable Lines” to settle issues concerning mistakes as to the boundary between adjoining properties. Sometimes referred to as “boundary by consent and acquiescence,” the Doctrine of Consentable Lines permits the passing of title to property where adjoining landowners establish a mutually respected boundary either by mistake and inadvertence or dispute and compromise, each landowner claims and occupies the land on his side of the boundary as his own, and the occupation continues uninterrupted for a period of twenty-one (21) years. This twenty-one year requisite can include “tacking” of years from one owner to his successor in order to aggregate to a twenty-one year sum. There are two ways in which one may prove a consentable line: by dispute and compromise or by recognition and acquiescence. There are three requirements for the establishment of a binding consentable line by dispute and compromise:

    1. A dispute with regard to the location of a common boundary line,
    2. The establishment of a line in compromise of a dispute,
    3. The consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith.
    The requirements for establishing a binding consentable line by recognition and acquiescence are:
    1. A finding that each party has claimed the land on their side of the line as their own, and
    2. A finding that this occupation has occurred for the statutory period of 21 years.
    The doctrine of boundary by acquiescence (i.e., consentable lines), functions as a rule of repose to quiet title and discourage vexatious litigation. The determination of what constitutes actual possession of property, for purposes of establishing a binding consentable line under the recognition and acquiescence method, depends on the facts of each case and the character of the premise. There is, however, no requirement that activities be conducted on the entire property in order for a party to prevail under the doctrine. The establishment of a consentable boundary line is always a matter of compromise, in which each party supposes he or she gives up for the sake of peace something for which in strict justice he or she is entitled. There is an express mutual abandonment of their former rights, upon an agreement, that whether they be good or whether they be bad neither is to recur to them on any pretense whatever or claim anything that he or she does not draw from the terms of the agreement. A consentable line is not created if the parties, from misapprehension, adjust their fences and exercise acts of ownership, in conformity with a line which turns out not to be the true boundary, or if permission is ignorantly given to place a fence on the land of a party. Whether proving a consentable line by dispute and compromise or by recognition and acquiescence, it is not necessary that the boundary line be substantial.
    • Based upon a rule of repose sometimes known as the doctrine of consentable line, the existence of a boundary line by acquiescence may be proved either by dispute and compromise between the parties or recognition and acquiescence by one party of the right and title of the other.
    • Acquiescence, in the context of a dispute over real property, denotes passive conduct on the part of the lawful owner consisting of failure on his part to assert his paramount rights or interests against the hostile claims of the adverse user.
    • A determination of consentable boundary line by acquiescence requires a finding:
      1. that each party has claimed the land on his side of the line as his own, and
      2. that he or she has occupied the land on his side of the line for a continuous period of 21 years.
    Because the finding of a consentable boundary line depends upon possession rather than ownership, proof of the passage of sufficient time may be shown by tacking the current claimant's tenancy to that of his predecessor; to do so, however, the claimant must show sufficient and credible proof of delivery of possession of land not within but contiguous to property described by deed of conveyance, which was previously claimed and occupied by the grantor and is taken by the grantee as successor in such interest.

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  • Easement by Necessity

    An easement created by operation of law because the easement is indispensable to the reasonable use of nearby property, such as an easement connecting a parcel of land to a road.

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  • Easement by Prescription

    An easement created from an open, adverse, and continuous use over a period of time set by law.

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  • Easements

    An interest in land owned by another person, consisting of the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road).

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  • Ejectment

    The ejection of an owner or occupier from property.  The essential allegations in an action for ejectment are that (1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dispossessed or ousted, and (3) the plaintiff has suffered damages.

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  • Eminent Domain

    The power to take property for public use without the owner’s consent.  In order for this power to be constitutionally exercised, just compensation must be provided.

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  • Joint Tenants

    A special form of ownership by two or more persons of the same property. The individuals, who are called joint tenants, share equal ownership of the property and have the equal, undivided right to keep or dispose of the property.  Joint tenancy may create a right of survivorship. This right provides that if any one of the joint tenants dies, the remainder of the property is transferred to the survivors by operation of law.

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  • Life Estate

    An interest in land that lasts only for the life of the holder.  Oftentimes used as a mechanism to allow continued occupancy of real estate by a parent with title held by adult children until the death of the parent. At that time title to the life estate ends and title vests fully in the children.

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Resources

Pennsylvania Dept. of State

See resource

Pennsylvania Courts

Unified Judicial System portal to all Pennsylvania Courts

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Bucks County, PA

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Delaware County, PA

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Chester County, PA

See resource

Philadelphia Courts

Portal to the Philadelphia Court System

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Montgomery County, PA

Portal to all Montgomery County offices & the Courts

See resource

The Free Legal Dictionary

The legal dictionary also incorporates The People’s Law Dictionary, by renowned authorities Gerald and Kathleen Hill. It includes definitions, context, and usage for more than 3,000…

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Pennsylvania Home Improvement Act

The Pennsylvania Home Improvement Act  puts certain requirements and limitations upon home improvement contractors and their contracts, and mandates certain penalties for non- compliance.  

See resource