Legal Question in Real Estate Law in Pennsylvania

If you are a lawyer, you should not be asking on this site. If you are a Realtor, you should have your own lawyer to ask. If you are neither, you should not have a "client".

This is a forum for consumers to ask questions, not for people who are "representing" someone.

THIS RESPONSE IS NOT LEGAL ADVICE, SINCE I DO NOT HAVE ALL OF THE INFORMATION THAT WOULD BE REQUIRED, AND I DO NOT HAVE A REPRESENTATION AGREEMENT WITH YOU.

* If the answers to your question confirm that you have a valid issue or worthwhile claim, your next step should almost always be to establish a dialog with a lawyer who can provide specific advice to you. Contact a lawyer in your county or township.

* Another reason for contacting a lawyer is that it is often impossible to give a good answer in the Internet Q&A format without having more information. The unique circumstances of your situation and things that you may not have thought to mention in your question may completely change the answer. If you want to be sure that you have a complete answer to your question and an understanding of what that answer means, establish a connection with a lawyer who practices in the area of your concern.

Thank you for your question.

The course of action to be taken will depend on several factors, none of which should be engaged in by the buyer because at this time, if an Agreement of Sale has been executed, the buyer only has an equitable interest in the property. The buyer's legal interest in the property is not created until the seller has executed a deed, transferring title to the entire property to the buyer. As such, the individual who owns the adjoining property and on whose property the driveway is encroaching, is under no obligation to negotiate with, or enter into any kind of agreement with the buyer.

Additionally, if the seller had no knowledge until now that his driveway encroached onto the adjoining property, he could declare the Agreement of Sale null and void and of no further legal effect without incurring any liability to the buyer for breach of contract.

On the other hand, if the encroachment has existed for 21 years or more, title to that portion of the property which encroaches onto the neighbor's property can be claimed by adverse possession, provided that the seller met all the requirements of acquiring title by adverse possession, i.e., the seller possessed (used) that portion of the property in a manner that was "open, notorious, hostile, and continuous" for a period of 21 years. The legal definition which the law and the Courts have placed on these words are as follows

"Open" - Using the property openly, as if it were his and without making any attempt to conceal his use from the true owner;

"Notorious and hostile" - Using the property as if he had legal title to the property and as if he had a right to do so;

"Continuous" - Without interruption during the 21 year period.

When an individual is claiming title by adverse possession, he would normally bring an action to "Quiet Title" at the end of the 21 year period in order to bring some finality to the issue of ownership, prevent anyone from disputing his interest in the property, and to have the Court decree that he had acquired legal title by adverse possession. A buyer can bring this action, but only after settlement and only after the seller has conveyed title to him. If the seller or his predecessor in title fulfilled all the requirements for adverse possession which I stated above, then the buyer will have no problem in prevailing. However, if his seller failed to meet all the requirements for adverse possession, then the buyer's action would be fatally flawed and he will be forced to remove that portion of the driveway that encroaches on his neighbor's property.

So, as you can see, if the seller cannot successfully negotiate with the adjoining property owner and resolve the issue of title to the portion of property on which the driveway encroaches, the buyer would be gambling that his action to Quiet Title will be successful. If the seller has not fulfilled all the requirements for adverse possession, then the buyer stands to lose his action to Quiet Title, will have expended substantial funds for legal fees and would incur additional expenses in removing that portion of the driveway that encroaches onto the neighbor's property. So, it is not really in the buyer's best financial interests to take on this large task and incur substantial legal fees, costs and expenses, only to have the Court rule in favor of the neighbor. In these situations, it is always a much, much safer bet to have liability remain with the seller and have him take care of this problem and then convey title to the property to the buyer.

I wish you the best of luck,

ANDREA G. TILLIS