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real estate law

Disclosing Before Closing

April 29, 2019 by Brian J. Forgue, Esq.

By Brian J. Forgue, Esquire-

Sellers’ Responsibilities Under Pennsylvania’s Real Estate Seller Disclosure Law

Pennsylvania Real Estate Seller Disclosure Law ID 96568481 © Alpegor | Dreamstime.com

If you have ever sold or purchased a home in Pennsylvania, then you likely recall completing or receiving a form called the Seller’s Property Disclosure Statement. As the name suggests, this is a document that the seller of a home completes and provides to the buyer to inform the buyer of any material defects with the property that are not readily observable.  A material defect is any defect that would have a significant adverse impact on the value of the property or any defect that poses an unreasonable risk to people on the property.

The requirement for a seller to complete and provide the buyer a disclosure statement is grounded in a Pennsylvania law called the Real Estate Seller Disclosure Law (68 P.S. §§ 7301 – 7315) (“RESDL”). RESDL generally provides the seller’s disclosure duties to a buyer during a residential real estate transaction. Specifically, the seller must disclose any known material defects affecting the following areas related to the home:

  1. Seller’s expertise in contracting, engineering, architecture or other areas related to construction and conditions of the property and its improvements;
  2. When the property was last occupied by Seller;
  3. Roof;
  4. Basements and crawl spaces;
  5. Termites/wood destroying insects, dry rot and pests;
  6. Structural problems;
  7. Additions, remodeling and structural changes to the property;
  8. Water and sewage systems or service;
  9. Plumbing system;
  10. Heating and air conditioning;
  11. Electrical system;
  12. Other equipment and appliances included in the sale;
  13. Soils, drainage, and boundaries;
  14. Presence of hazardous substances;
  15. Condominiums and other homeowners associations; and
  16. Legal issues affecting title or that would interfere with the use and enjoyment of the property.

The list above is long and covers nearly all physical and systematic aspects of a home.  If you are selling your home, you may be thinking how easy it would be to forget about or simply not know about a material defect with one of the many items appearing on that list. That’s possible.  However, the Real Estate Seller Disclosure Law also provides the seller guidance and protection as they relate to the seller’s disclosure obligation to the buyer.

The Real Estate Seller Disclosure Law requires a seller to disclose only material defects a seller knows about. See 68 P.S. § 7309 (A)(1).  For example, if a seller doesn’t know about a material defect in the electrical system of the house that is later discovered by the buyer three months after closing on the home, under RESDL, the seller is protected.  A seller cannot disclose something he/she does not know.

Even if a seller knows about a material defect and does not disclose it, but reasonably believes that the defect was previously corrected, the seller is protected under RESDL.  See 68 P.S. § 7309(A)(2).  Additionally, the Real Estate Seller Disclosure Law does not require the seller to undertake any specific investigation or inquiry into the items on the list when completing the disclosure statement.  The seller is only required to disclose material defects that the seller knows about at the time the disclosure statement is completed.

If you are buying a home, the seller’s disclosure statement should not be considered a substitution for a home inspection by a licensed home inspector prior to closing. Rather, the disclosure statement should be used in conjunction with a home inspection report to uncover any defects with the home that the buyer and seller are not aware of. Similarly, the disclosure statement is not a warranty provided to the buyer – it is merely a snapshot in time of material defects known to the seller when the disclosure statement is completed.  A disclosure statement is a tool that is ideally used fairly and honestly to make residential real estate transactions as smooth as possible for all parties involved.

Our firm has represented both buyers and sellers of homes involving legal claims under the Real Estate Seller Disclosure Law.  From a buyer’s perspective, RESDL cases are difficult because it is generally tough to prove that the seller knew and consciously chose to omit, for example, that the property was infested with termites, or that the roof over the garage leaks when it rains. Similarly, from a seller’s perspective, it is difficult to know how and what to disclose.  For example, if a seller has fixed certain defects which the seller reasonably believes to be correct, does not include those defects on the disclosure statement, and then the defects reappear after the buyer purchases the home. Cases arising under RESDL, from both the buyer and seller perspective, are very fact-intensive.

Buying or selling a home is one of, if not the biggest investments a person will make, and if the transaction is not handled properly, it may cost you a lot, regardless of whether you are the buyer or seller.  Bottom line – if you are a seller, be sure to disclose the defects of which you are aware on the property.  If you are a buyer, confirm that the home you are purchasing is in the condition as represented to you by the seller.  If not, consult an attorney at your earliest convenience.

If you are in the process of selling or purchasing a home or believe you have a claim under the Real Estate Seller Disclosure Law, contact Brian at (610) 840-0221 or [email protected].


Brian J. Forgue, Attorney Brian J. Forgue is an attorney in MacElree Harvey, Ltd.’s Litigation practice group. Licensed to practice law in Pennsylvania, Brian represents clients in a broad range of litigation matters, with an emphasis on complex commercial litigation.

Filed Under: Articles by Our Attorneys Tagged With: Brian J. Forgue, litigation, real estate law

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

Stormwater Issues: An Overview for the Pennsylvania Property Owner

November 20, 2018 by Matthew M. McKeon, Esq. Leave a Comment

Stormwater Issues ID 94150694 © | Dreamstime.com

When the ground is unable to absorb all of the stormwater from a given event, stormwater runoff can cause mischief for you and, sometimes, your neighbors.

Factors which Cause Stormwater Problems

Stormwater issues can be caused by several different factors, including:

  • The topography of a property, including runoff from uphill neighboring properties.
  • The amount of impervious surface on a property (g., buildings, driveways, walkways, etc.).
  • Downspouts on houses and other structures.
  • Removal of/alterations to natural features on the property.
  • Diminished effectiveness of existing stormwater control features.

Determining the source of excess stormwater runoff is important as it can establish if a neighboring property owner is responsible for the runoff and how to address the issue.

Stormwater Issues May Lead to Disputes Between Neighbors

The general rule is that a property owner cannot concentrate the flow of stormwater onto neighboring land, as doing so may result in significant erosion to the downhill property.  If you are unable to cut off the concentrated flow of stormwater onto a neighboring property, you should consult with an attorney.

Stormwater Runoff: Receiving a Notice of Violation of a Municipal Ordinance

Stormwater runoff issues may arise between the property owner and a municipality.  Based on either a municipal officer’s own observations or a complaint from a neighboring property owner, the zoning officer or another municipal officer will ask the property owner for permission to inspect the property to determine if the property owner is in violation of a municipal ordinance. The ordinance most frequently at issue is a stormwater management ordinance, although some municipalities also address stormwater runoff in the zoning ordinance.  If the municipal officer finds what the officer considers an ordinance violation, the officer will send a notice of violation stating that the property owner is in violation of a certain ordinance section that restricts altering or interfering with the flow of stormwater.

Appealing a Notice of Violation 

If you receive a notice of violation, you should contact a land use attorney immediately as you will have a limited amount of time to appeal the notice.   Successfully appealing a notice of violation of a stormwater management ordinance requires a precise understanding of both the ordinance and the hydrological mechanics of your property.  A land use and zoning attorney will be able to examine the ordinance and – with the help of an engineer – assess whether the provision cited in the notice of violation applies to your property.  Depending on the facts of a particular matter, it may be advisable to resolve a notice of violation without an appeal.  Discussing your options and goals with the attorney will allow your counsel to recommend a solution that is tailored to your needs.

Installing Stormwater Control Features

There are a number of reasons why you may want to install stormwater control features such as swales and rain gardens on your property.  Adding these features may be the best way to respond to a neighbor’s complaint or a notice of violation of your municipality’s stormwater management ordinance.  You may also decide to install stormwater control features to preempt any future issues with runoff.  Most municipalities with stormwater management ordinances require that you submit a plan and description of your proposed stormwater control features.  Working with an attorney and an engineer will allow you to have these features approved and installed so that stormwater runoff is no longer a source of trouble for you or your neighbors.


Stormwater

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: Pennsylvania property owner, real estate law, stormwater

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