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How Adverse Possession Can Affect The Eminent Domain Process

September 27, 2016
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By Dana Windisch Chilson

For boroughs, townships, municipalities, and cities, eminent domain is a tool used to better the communities in which we live, whether than means widening an increasingly busy road or constructing a new community park.  While eminent domain is an important and powerful tool, condemnors must be sure that they follow the proper procedures, including notice to all property owners, both those of record and those who are not.

The Pennsylvania Commonwealth Court decision of In the Matter of Condemnation of Rights of Way and Easements Situate in the Township of Mt. Pleasant examined the importance of notice in an eminent domain action.  Mt. Pleasant Township wanted to acquire an easement to construct a public sanitary sewer system over a portion of property abandoned by Penn Central Railroad.  Although they had never formally purchased the property, Raymond and Patricia Alincic had been using the property for animal grazing since 1977.  The Alincics erected a barbed wire fence, installed drainage pipes, and regularly patrolled the property.  Although not title owner of the property, Pennsylvania law gave the Alincics full property rights through adverse possession.  Adverse possession confers a property interest upon a person when their possession is actual, continuous, exclusive, visible, notorious, distinct, and hostile for twenty-one years, even if they are not a purchaser for value or the record owner of the property.  The concept of adverse possession has received much scholarly attention over the years and could be the subject of an article all its own.  Suffice it to say that, for the purposes of the inquiry in Mt. Pleasant, the Alincics meet the criteria for adverse possession.

The Alincics did not take steps to formalize their interest in the property of record, and Penn Central Railroad sold the property to the Melkan Corporation in 1993.  Melkan received a quitclaim deed and paid all taxes on the property since 1993.  In 2008, the Township engineers approached the Alincics to discuss the sanitary sewer project.  After Mr. Alincic voiced his concerns about the project, the Township determined that Melkan was the owner of record; consequently, the Township listed Melkan, not the Alincics, as the condemnee on the declaration of taking.  As a result, only Melkan received notice of the condemnation.  Over two years later, the Alincics realized that their land had been condemned and challenged the Township’s acquisition of the property.

Although the Alincics were not record owners, they argued that they were a condemnee entitled to notice of the taking.  The court agreed, reasoning that the Eminent Domain Code does not distinguish between an owner of record and an owner by adverse possession.  The court went on to extend the time frame to challenge a taking for property owners, such as the Alincics, who did not receive notice of the taking, but later discovered that the property had been condemned.

Mt. Pleasant teaches two important lessons.  First, a property owner who acquires a property interest through adverse possession has standing to challenge a condemnation.  Second, for a condemnor, performing a title search and notifying owners of record may not be sufficient to satisfy the statutory notice requirements.  A potential condemnor may have to conduct further investigation to detect and notify any landowners who have property interests that are not of record.

The eminent domain process can be riddled with issues such as the ones presented to the court in Mt. Pleasant.  The Eminent Domain Group at McNees Wallace & Nurick can assist both landowners and condemning entities in navigating these tricky areas.

Dana W. Chilson is the chair of McNees Wallace & Nurick LLC’s Insurance Group, as well as a member of the Litigation, Financial Services, and Injunction groups. She can be reached at 717-237-5457 or dchilson@mcneeslaw.com

 

McNees is a full-service law firm based in central Pennsylvania with more than 130 attorneys representing corporations, associations, institutions and individuals. The firm serves clients worldwide from offices in Harrisburg, Lancaster, State College and Scranton, PA; Columbus, OH; and Washington, D.C. McNees is also a member of the ALFA International Global Legal Network. www.mcneeslaw.com @McNeeslaw LinkedIn