Boundary Dispute Consentable Boundary Adverse Possession Tacking
DeMarco v. Acker, et al, PICS Case No. 17-1018 (C.P. Carbon May 16, 2017) Serfass, J. (16 pages).
Plaintiffs established title to a disputed portion of land between the parties' adjoining parcels through a "consentable boundary" where the evidence demonstrated that the parties and their predecessors used two fences on the disputed property as a consentable boundary for 40 years. The court entered judgment for plaintiffs.
Plaintiffs Jaqueline and Brad DeMarco reside on West Sixth Street in Jim Thorpe. Jacqueline inherited the property from her mother, Dorothy Farrell, in April 2013. Defendants, Thomas and Sabina Acker, own a parcel abutting plaintiffs' land, which they purchased in 2005. Jaqueline testified that her father installed a pool on plaintiffs' property in 1974, built a fence on the property in 1975 along a hedge row already there and constructed a pool deck in 1984 or 1985. In June 2015, Thomas Acker cut and removed a section of plaintiffs' fence and pool deck he thought were encroaching upon his property. Thereafter, plaintiffs filed this lawsuit asserting ownership of a parcel between the parties' properties measuring three feet wide by 50 feet long. According to plaintiffs, they obtained title to the land though adverse possession or, alternatively, through consentable boundary. To prove adverse possession, a party must demonstrate actual, visible, notorious, exclusive, distinct, hostile and continuous use of the disputed land for at least 21 years. Plaintiffs did not occupy the disputed parcel for 21 years, as they acquired the property in 2013. Thus, they needed to tack their possession onto the possession of the previous title owners to meet the 21-year requirement. The party asserting the claim must prove privity of estate to tack possession onto that of another, the court explained. "Privity of estate requires plaintiffs' predecessor in title to have claimed title to the disputed parcel and to have alleged to transfer title to plaintiff[s.]" Plaintiffs did not make such a contention and the respective deeds did not make mention of the disputed parcel. Thus, plaintiffs could not tack on their predecessors' ownership period to meet the 21-year element of adverse possession. The court noted, however, that under Pennsylvania precedent, a well-maintained fence is conclusive evidence of a consentable boundary. There was no evidence that the Farrells or any of defendants' predecessors in title specifically consented to have the fence and pool deck serve as a boundary between the parcels. However, explicit consent is not required to prove a consentable boundary, the court observed. Rather, the parties must exclusively use the property on their side of the purported boundary for a period of at least 21 years. The parties and their predecessors used two fences on the disputed property, including the fence installed by Jacqueline's father as a consentable boundary for about 40 years. In the context of consentable boundary, tacking carries a lesser standard than required in an adverse possession analysis, the court observed. Plaintiffs were only required to prove privity of possession to tack their ownership to the Farrells, which they did. Thus, they were entitled to the quiet and peaceful possession of the disputed property.