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land use and zoning law

Zoning in the Age of Airbnb Part II: Pennsylvania Supreme Court Weighs in on Short-Term Rentals in Residential Zoning Districts.

May 28, 2019 by Matthew M. McKeon, Esq.

By Matthew M. McKeon, Esquire-

Zoning in the Age of Airbnb_Free photo 4924589 © Crodenberg - Dreamstime.com

Like the rest of the country, Pennsylvania has seen a surge in homeowners listing their properties for short-term rentals on online platforms like Airbnb or HomeAway. This type of property use has led to questions about how short-term rentals of residences should be treated under zoning ordinances, which often fail to address this new type of property use.

In the last few years, the Commonwealth Court of Pennsylvania has decided three different zoning appeals involving short-term rentals of single-family homes in residential zoning districts. In each of these cases, the zoning hearing boards determined that the rentals of the homes at issue were prohibited because short-term rentals were not among the permitted uses in the zoning districts. In all three cases, the Commonwealth Court reversed, concluding that the zoning ordinances’ definitions of “single-family dwelling” and “family” did not prohibit the short-term rental activity. The Commonwealth Court also noted in each case that the municipalities had labeled the rental activity as a use whose definitions did not apply to the rentals (e.g., “vacation rental,” “lodging house,” etc.). The Commonwealth Court held that while municipalities could amend their zoning ordinances to define and prohibit short-term rentals of single-family dwellings, they may not prohibit the rentals if the zoning ordinance is ambiguous or silent on the subject.

In April 2019, the Pennsylvania Supreme Court overturned this line of Commonwealth Court decisions. The Supreme Court held that municipalities are not required to define a new type of use in their zoning ordinances in order to prohibit that use, and that uses of property are prohibited unless expressly permitted in the zoning ordinance. The Supreme Court also held that the occupants of a single-family dwelling are not a “single housekeeping unit” (a common element of zoning ordinances’ definitions of “family”) unless they actually function as a family. The Supreme Court listed behavior like residing long-term in the home and eating meals together as evidence that the occupants function as a family.

What Does This Decision Mean for Owners Who Want to List Their Property for Short-Term Rentals?

The Supreme Court’s decision means that municipalities can prohibit short-term rentals of single-family homes without changing their zoning ordinances to address this new type of rental. The decision also makes it harder to argue that these types of rentals are consistent with the traditional “single-family dwelling” use, at least if the local zoning ordinance defines “family” in a manner similar to the ordinance addressed by the Supreme Court. However, the Supreme Court’s decision does not affect those municipalities – such as Philadelphia – that have decided to conditionally permit short-term rentals of homes.

What if You Still Want Approval for Short-Term Rentals of Your Property?

Homeowners may still be able to obtain municipal approval for a short-term rental of their home even if it is not among the uses permitted in the zoning district. One possible way to achieve this would be to obtain a use variance. Some municipalities may condition a variance on the homeowner agreeing to limitations on such things as the number of guests, parking, and noise. Other municipalities may choose to amend their zoning ordinances to allow short-term rentals of homes as a special exception or conditional use. Homeowners interested in listing their properties for short-term rentals should consult with a land use attorney to assess any zoning implications.


Matthew M. McKeon is an attorney in MacElree Harvey’s West Chester office and a member of the firm’s Land Use Practice Group. Matt primarily focuses his practice on land use, zoning, and litigation-related matters.

To learn more about Matt’s practice or to schedule a consultation, call (610) 840-0225 or email [email protected].

Filed Under: Articles by Our Attorneys Tagged With: land use and zoning law, Matthew M. McKeon

Unrecorded Rights in Your Property: How to Avoid Potential Adverse Possession and Prescriptive Easement Claims

March 4, 2019 by Matthew M. McKeon, Esq.

By Matthew M. McKeon, Esquire-

easement rights - Free photo 2592748 © Jborzicchi - Dreamstime.com

The day has finally come: you’re attending the closing on your new property. You have a title insurance policy commitment, and the title report came back clean – except for a standard utility easement from the electric company. However, there are some types of interests in property that will not show up in a title report because they were never recorded. Prospective buyers and current owners of property should understand how to protect against a third party claiming an unrecorded interest in the property.

Adverse Possession and Prescriptive Easements

Adverse possession is a means by which a third party can obtain a legal right to all or part of a property despite the property having a different owner of record. One who claims a right to property by adverse possession must show that they have possessed the property in a manner that is “actual, continuous, exclusive, visible, notorious, distinct and hostile” possession of the land for 21 years. These archaic sounding requirements essentially mean that the third party must have continuously possessed the property to the general exclusion of others for 21 or more years, and must have done so in a manner that would place a reasonable record owner on notice.

A prescriptive easement is an easement across the property of a record owner that is obtained in the same manner as adverse possession. In other words, a third party who asserts a prescriptive easement across a record owner’s property must show that their use of the easement meets all the same requirements to establish an enforceable right to the easement.

Assessing Whether the Property Has Unrecorded Interests

Prospective buyers should ask the current owner of the property whether any third parties possess or claim interests in the property, including interests such as easement rights, or rights to use, or travel over, any part of the property.

Prospective buyers should also walk the entire perimeter of the property and understand how it relates to neighboring properties. Has a neighbor mowed grass or otherwise landscaped over the property line? Are there any structures, such as sheds, which are not used by the current owner or which are located on or over the property line? These could all be signs of adverse possession. Are there any driveway, tire tracks, or footpaths that appear to cross the property line? These may indicate unrecorded easements across the property.

Possible unrecorded interests can be difficult to detect, and prospective buyers and current owners alike should consult with a land use attorney if they are concerned that a third party may have an unrecorded interest in the property.

Where a Third Party Asserts an Unrecorded Interest in the Property

What if a third party does assert that they have an unrecorded interest in the property? Luckily for record owners, it can be very difficult for third parties to successfully prove all of the elements necessary to establish adverse possession or a prescriptive easement. However, even unsuccessful legal claims by parties claiming an unrecorded interest can still be expensive and frustrating for record owners and can impede the sale of the property until the issue is resolved. A land use attorney can help a record owner decide how best to proceed based on the record owner’s specific circumstances.


Matthew McKeonMatthew M. McKeon is an attorney in MacElree Harvey’s West Chester office and a member of the firm’s Land Use Practice Group. Matt primarily focuses his practice on land use, zoning, and litigation-related matters.

To learn more about Matt’s practice or to schedule a consultation, call (610) 840-0225 or email [email protected].

Filed Under: Articles by Our Attorneys Tagged With: adverse possession claim, easement, land use and zoning law, prescriptive easement claim, real estate law, unrecorded interests, unrecorded rights

CCBA Member Profile: Attorney Brian L. Nagle

October 3, 2017 by MacElree Harvey, Ltd.

September 2017

Brian L. Nagle Brian L. Nagle is a land use and zoning law attorney at MacElree Harvey, where he guides real estate developers, property owners, entrepreneurs, institutions and individuals in a wide range of real estate related matters, including land use and zoning, tax assessment, and land acquisition in Chester County and neighboring counties. To learn more, please click here.


Role at the Chester County Bar Association (CCBA):

CCBA Board of Directors; Chester County Bar Foundation’s Vice President and Chair of the Golf Fundraising Committee.

What have the Boards and Golf Classic Committee done since you’ve been involved?

We established corporate fellows, revamped the scholarship program, and raised funds to support the Domestic Violence Center, the Crime Victim’s Center, and Legal Aid of Southeastern Pennsylvania. We supported other organizations that help Chester County citizens understand, gain access to and benefit from our legal system. That’s our mission.

What is a goal for the Golf Classic Committee?

To raise money, promote our charitable efforts, and to have a little fun in the process.

What is your favorite memory of the CCBA?

My favorite memory is organizing the mock trial competition when I was in the Young Lawyers Division of the CCBA. I was amazed not only by the preparation and talent of the high school students, but also by all of the volunteers who make it happen. It is a great program.

If you could have dinner with someone living or dead who would it be?

George Washington. I have read a lot about the revolutionary war. There are a few questions that I need to ask him.

What would I find in your refrigerator?

Lots of milk and a smattering of leftovers. I try to hide grape juice in the back corners, but the kids usually find it. I really enjoy cold grape juice.

What’s a random fact about you that our members may not know?

I have my bachelor’s degree in Anthropology and Archaeology. If I had a retirement hobby, that would be it. I occasionally reflect on the sign that hung prominently in the CUA Archaeology Lab “Love is fleeting, stone tools are forever.” I learned a lot in my studies and work there. One of those lessons: Some things will remain unknowable, no matter what you do, but that doesn’t mean you can’t complete the project.

And lastly, if you had to do it all over again, would you be an attorney today? If not what do you think you would be?

Absolutely. It gets in your blood. I love my job.


Brian L. Nagle can be reached at 610-840-0224 or [email protected].

Filed Under: News Tagged With: Attorney Brian L. Nagle, CCBA, Chester County Bar Association, land use and zoning law

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