Practice Area: Real Estate Litigation

Tom Gabor | November 7, 2024

High Swartz LLP Ranked in Best Law Firms® Latest Edition in 14 Practice Areas in the Philadelphia Region

High Swartz LLP Earns National Recognition as a Tier 1 Law Firm in Land Use and Zoning Law and Tier 2 in Real Estate Litigation.

High Swartz LLP has been nationally recognized in the prestigious 2025 edition of Best Law Firms®, achieving a Tier 1 ranking in Land Use and Zoning Law and a Tier 2 ranking in Real Estate Litigation. Additionally, the firm has been honored in the Philadelphia metropolitan area across 14 practice areas, underscoring its comprehensive legal proficiency and commitment to excellence.

This recognition, awarded by Best Law Firms® in partnership with Best Lawyers in America®, speaks to the robust methodology used to evaluate eligible firms. To qualify for a Best Law Firms® ranking, a firm must have at least one attorney listed in the latest edition of The Best Lawyers in America®. The 2025 edition includes 12 High Swartz Attorneys and 3 in its Ones to Watch edition.

High Swartz LLP's achievement reflects its continued commitment to client satisfaction in diverse practice areas, spanning both national and metropolitan areas.

Best Law Firms® Evaluation Process: A Methodology Built on Quality and Client Satisfaction

Best Law Firms® rankings are determined through a rigorous process that combines client and professional references with data-driven evaluations, surveying factors such as client responsiveness, cost-effectiveness, and overall experience. Each eligible law firm receives a tailored submission packet with access to the Best Law Firms® portal, allowing them to submit key background information on their practice areas. Additional feedback is gathered from clients and professional references who highlight their satisfaction with the firm's understanding of business needs, professionalism, and value.

The methodology assesses law firms across 75 national practice areas and 127 metropolitan-specific practice areas. In major metropolitan areas, such as Philadelphia, the ranking process evaluates a firm’s relative standing against competitors, using both qualitative and quantitative data to produce a tiered ranking system. High Swartz LLP’s distinguished rankings place it within the top tier for Land Use and Zoning Law and solidify its Tier 2 status in Real Estate Litigation, an accomplishment that speaks to its recognized proficiency and impact.

Tiers and Rankings: Demonstrating Excellence in Every Practice Area

Best Law Firms® rankings employ a tiered scoring system rather than a sequential ranking, ensuring that firms with closely aligned scores are grouped together. This approach considers both metropolitan-level achievements and national reach, offering a balanced perspective on firms’ performances within their respective legal markets.

With High Swartz LLP’s 2025 accolades, clients and partners gain reassurance of the firm’s dedication to high-caliber service and its capability to navigate complex cases effectively.

High Swartz LLP continues to set a standard in Land Use and Zoning Law, Real Estate Litigation, and across 14 Philadelphia-area practice areas, confirming its position as a trusted legal partner both locally and nationally. Below is a breakdown of specific practice areas.

National Tier 1

National Tier 2

Metropolitan Tier 1 - Philadelphia

Metropolitan Tier 2 - Philadelphia

Metropolitan Tier 3 - Philadelphia

When you're looking for attorneys near you in the Greater Philadelphia, Bucks County, and Montgomery County areas, get in touch with our law office. As shown, national and local resources consistently cite our law firm and its lawyers and attorneys. 

High Swartz | October 8, 2024

Commercial Zoning Laws in Pennsylvania

Commercial Zoning Laws - A Guide for Business Owners

It pays to know zoning laws in Pennsylvania before buying commercial property.

Commercial zoning laws dictate where to open your business, the activities allowed, and building construction. And they apply regardless of your type of business.

Knowing those laws ensures compliance and sets the stage for success. If unsure, hiring a real estate lawyer near you is wise to prevent problems that could affect your business later on. Our law firm garnered national recognition for real estate litigation, land use, and zoning law.

Commercial Zoning Laws in Pennsylvania

Property zoning divides land into distinct districts to control the use and development of real estate. Municipalities use zoning as a guide for urban growth. It ensures that commercial activities don't infringe on residential neighborhoods and vice versa.

In Pennsylvania, local government establishes zoning laws. Each township, borough, or city adopts zoning ordinances based on specific needs and development goals.

Commercial zoning laws determine:

  • Where businesses can operate
  • The types of buildings you can construct
  • The specific uses allowed on a property

The laws divide the municipality into districts (zoning districts). They prescribe the land uses in each district, such as residential, commercial, industrial, or mixed-use. Zoning maps represent the boundaries of these districts.

The local government's zoning board or commission typically oversees the application and enforcement of zoning laws.

Commercial Real Estate in Pennsylvania

Pennsylvania defines commercial properties as real estate used for business activities. These include many properties, such as retail stores, office buildings, shopping centers, and hotels. It also covers service establishments like restaurants and repair shops.

Although often categorized separately, warehouses and industrial facilities also fall under commercial properties when they support business operations. The Lehigh Valley and Central PA have become hotbeds because critical interstates converge in these regions. According to Lancaster Farming, Eastern and Central Pennsylvania have 25 million square feet of warehouse space under construction.

Understanding what qualifies as commercial property is essential for new business owners as it directly impacts commercial zoning laws and permissible business activities. Zoning laws are powerful tools in the fight against unwanted developments. Law firms identify zoning ordinances that the proposed warehouse project would violate. They could delay and eventually stop construction by challenging the project on these grounds.

How to Determine the Zoning Status of a Property

To determine the zoning status of a property in Pennsylvania, you can take the following steps:

  1. Zoning Office: You can visit your local office to discover a property's zoning classification. They can provide the zoning map and relevant ordinances to the property.
  2. Online Resources: Some municipalities may offer access to zoning maps and regulations online. Visit the official website of the city or town near your property location.
  3. Property Deed: The deed or title of the property sometimes contains information about its zoning classification or any restrictions.
  4. Real Estate Attorney: You might want to consult with a real estate attorney when purchasing commercial property. They can ensure you have accurate and comprehensive zoning information.

Types of Commercial Zoning

Pennsylvania recognizes several types of zoning, each with its regulations and permitted uses. The most common types include:

  • Residential Zoning: Local zoning laws can impose many restrictions affecting your ability to maintain a home business. Some localities restrict property owners' rights to build separate structures. You might also run into restrictions on how much of your home you can use exclusively for your business.
  • Commercial Zoning: This encompasses areas designated for business activities, including retail, offices, and services. Understanding the specific types of commercial zoning is crucial for selecting the appropriate location for your business.
  • Industrial Zoning: It covers zoning for manufacturing, warehousing, and distribution centers. These areas are typically separate from residential and commercial zones to minimize noise and traffic impact.
  • Mixed-Use Zoning: This classification encourages a combination of residential, commercial, and sometimes industrial uses in a single area.

Special zoning districts, such as historic or cultural preservation zones, may also affect business operations and property development.

Commercial Zoning Law Restrictions

Commercial zoning laws impose some restrictions beyond determining the land's use, including lot size, building height, density, and parking requirements. These restrictions ensure developments align with community standards and infrastructure capabilities.

Building codes also set construction and safety standards, affecting everything from structural integrity to fire safety. Compliance with zoning restrictions and building codes is non-negotiable. Otherwise, you face costly fines and legal issues.

Common Zoning Issues for Commercial Properties

You risk fines and other penalties if you violate zoning laws (Title 8). Equally important, you risk having your business shut down.

Here are some of the most common zoning issues for commercial properties:

Non-Conforming Use

Non-conforming use occurs when a property's current use misaligns with zoning ordinances. This issue can happen, for example, when zoning laws change after establishing a business.

Typically, grandfather clauses protect you. However, the new zoning law might prohibit your plan to expand or alter your property. Often, resolving these issues requires applying for a variance or seeking a zoning change.

Parking Requirements

Commercial zoning districts can have parking space requirements based on the business type and size. For example, restaurants might need a specific number of parking spots per square foot of dining area.

Failure to meet these requirements can limit business operations or expansion plans. As a result, you might need to apply for a variance. Alternatively, you can address parking needs through shared agreements or off-site parking solutions.

Signage Restrictions

Although essential for most commercial businesses, commercial zoning laws often regulate signage. For example, they can dictate signs' size, placement, and lighting. You may find yourself in conflict when planning to erect or modify new signs.

Building Height and Setback Limitations

Restrictions on building height and setbacks can impact the design and expansion of commercial facilities. For instance, zoning laws may restrict the distance a building can be from the property line.

That can become particularly challenging if you want to expand your building upwards or when the property is small. Businesses facing this concern can request variances or conditional use permits.

Zoning Amendments and Rezoning

Occasionally, municipalities revise their zoning ordinances or maps. Imposing new restrictions or changing permitted uses can adversely affect commercial properties. Even after establishing your business, you'll need to stay updated on commercial zoning law updates.

Conditional Use Permits

Sometimes, zoning law may prohibit commercial operations but receive a conditional use permit. Generally, obtaining a permit involves a detailed application process and a public hearing. It also will require adherence to specific conditions laid out by the zoning board.

You can seek a variance if you have any of the above concerns. A commercial real estate attorney can help you build a case for one.

How to Get a Variance with Commercial Zoning Laws

A variance is a legal mechanism that allows property owners to deviate from strict adherence to zoning regulations. The process doesn't require an attorney, but you'll have a better chance of winning if you work with an experienced real estate attorney.

Here are the steps to submit a variance:

  1. Application: Submit a variance application to the local zoning board. The application needs a description of the variance and the reason for it. Generally, you'll also have to pay a fee.
  2. Notice and Hearing: The zoning board schedules a hearing following the application. It also notifies nearby property owners about the variance that might impact them.
  3. Hearing: You'll have the opportunity to present your case. You can present supporting evidence and testimony from experts or affected parties.
  4. Decision: The zoning board decides whether the variance adheres to the public interest and ensures the variety doesn't negatively affect the plan's overall intent.
  5. Appeal: You can appeal the decision to a higher court if denied.

Consult a Real Estate Attorney Near You

Many can overlook commercial zoning laws with the excitement of purchasing a property for your business. Unfortunately, you risk opening a can of worms that can shutter your business until resolved.

Our real estate attorneys know local ordinances, ensuring you eliminate those risks. So call our law offices if you need a lawyer near you in Bucks, Delaware, Chester, Philadelphia, or Montgomery County, PA. We'll aim to get the results you want while eliminating potential legal logjams.

High Swartz | October 8, 2024

Politcal Yard Signs - Are They Legal In Pennsylvania?

Political yard signs and free speech have become a source of significant controversy in Pennsylvania, especially in recent years.

As elections approach, the debate over displaying political yard signs has intensified. Many Pennsylvania homeowners want to show their support for candidates, but they may face challenges from their own homeowners' associations (HOAs) or community associations.

Download and print out this article by clicking pdf of political yards signs and your HOAhere

First Amendment Rights and Political Signs

Our democracy relies on the First Amendment, which prohibits laws that restrict free speech. The Supreme Court has consistently upheld broad protections for political speech, including the use of political yard signs. In Pennsylvania, political signs, flags, and posters displayed close to elections are considered a form of protected speech. As a result, government actions such as zoning laws that ban political yard signs in residential areas are often ruled unconstitutional. Size restrictions and permit requirements on political signs, though less clear-cut, also undergo strict scrutiny by courts. In many cases, these regulations are deemed invalid because they infringe on free speech.

HOA Restrictions on Political Yard Signs

Despite these protections, Pennsylvania residents living in community associations may face restrictions on displaying political yard signs. These limitations come from the association's governing documents, not PA government. Both the U.S. Constitution and the Pennsylvania Constitution protect free speech only when the interference is carried out by a government entity. HOAs and community associations are private organizations and are not considered government actors. In Midlake on Big Boulder Lake, Condo. Ass'n v. Cappuccio, the Pennsylvania Superior Court upheld an HOA's right to restrict political signs. The court reasoned that because residents voluntarily purchased property in a community association, they agreed to abide by its rules, even if that meant giving up certain speech rights. Specifically, the Court held that:

The Courts of this Commonwealth have vigorously defended the rights which are guaranteed to our citizens by both the federal and our Commonwealth’s constitutions. One of the fundamental precepts which we recognize, however, is the individual’s freedom to contractually restrict, or even give up, those rights. [The unit owners] … contractually agreed to abide by the provisions in the Declaration at the time of purchase, thereby relinquishing their freedom of speech concerns regarding placing signs on this property.

Contractual Agreements in HOAs

The court in Cappuccio emphasized that individuals have the freedom to contractually limit their rights, including their right to display political yard signs. If a community association's governing documents uniformly enforce a ban on political signs, it is likely to be upheld in Pennsylvania courts. This is true even with the strong free speech protections offered by the U.S. and Pennsylvania Constitutions.

In Conclusion: Political Yard Sign Rules in Pennsylvania

While Pennsylvania law generally protects the display of signage, those living in community associations may find their rights restricted by HOA rules. These private associations are not subject to constitutional free speech protections, allowing them to enforce restrictions on political signs. However, any such restrictions must be applied consistently across the community. Understanding these distinctions is crucial for homeowners looking to display political yard signs in Pennsylvania.

Kevin Cornish | April 5, 2023

How do I Evict a Tenant?

If you’re a landlord, you might have faced this very real question: how do I evict a tenant? After all, it isn’t all that unusual to have an inconsiderate, messy, or possibly even dangerous tenant. So at some point, you may decide that it’s necessary to part ways and evict them from your property.

But here’s the catch. Evicting a tenant isn’t as easy as you might expect. For example, residential landlords are often surprised about the numerous requirements and the time it takes to evict. There’s also time and monetary costs to consider.

In Pennsylvania, the Landlord and Tenant Act governs the process. And strict compliance is vital to ensure that you evict a tenant legally. After reading this article, you may want to talk with a real estate attorney near you to cover all the bases. Our firm has years of experience assisting residential and commercial landlords in navigating their rights in Pennsylvania and the mid-Atlantic region.

Steps Required for Evicting Tenants

Although various jurisdictions may differ slightly, typically, the process for how to evict a tenant follows these steps:

  1. Ensure you have appropriate grounds for an eviction
  2. Serve an official written eviction notice to the tenant
  3. Serve a summons and complaint if the tenant fails to comply
  4. Attend a court hearing and judgment
  5. Issuance of a writ of execution evicting the tenant
  6. Gaining possession of the property

So, as you can see, the process can take some time, anywhere from a month to two months or more from start to completion.

Grounds for Evicting a Tenant

The first step in an eviction is determining the basis for the removal. Pennsylvania requires a landlord to comply with notice requirements. In addition, the notice must include the tenant’s violation prompting the eviction. And that violation must be a valid reason. There are plenty of factors in play currently due to the pandemic and it's fallout, so touching base with a real estate attorney would be prudent to get the latest information.

You have grounds to evict a tenant for any one of these violations:

Failure to Pay Rent

Unsurprisingly, the primary reason for an eviction notice is a tenant who fails to pay rent or does so habitually. In Pennsylvania, rent is late one day after due. A landlord can take steps to evict the tenant with a 10-Day Notice to Quit, giving them ten days to settle unpaid rent. If the tenant fails to pay after the notice to quit, a landlord can continue filing an eviction action.

Violations of the Rental Agreement

Pennsylvania allows a landlord to evict a tenant for violating written lease terms. For example, the tenant may have a pet or roommate prohibited by the lease agreement. In this case, the landlord presents a 15-Day Notice to Quit for tenants residing at the property for one year or less.

For tenants residing at the property for greater than one year, the landlord presents a 30-Day Notice to Quit.

In either case, the tenant must move out of the property within that timeframe. Otherwise, the landlord can file an action to evict them.

Illegal Activities

Landlords can give tenants a 10-Day Notice to Quit for performing illegal activities on the property. For example, if a tenant creates, distributes, or uses controlled substances. Or if police seize drugs from the tenant’s rental unit.

Other examples include using the property for gambling or prostitution. Landlords can also evict tenants for becoming a chronic nuisance or substantially damaging the property. Keeping records of dates and times and any police reports is important to strengthen your case.

Independent of sufficient cause, a landlord must wait for the tenant to commit some violation. Otherwise, the only remedy is to wait for their lease to expire.

It’s critical to note that the Landlord and Tenant Act require that the notice to quit be served personally to the tenant. That being said, you can post the notice on the principal building or the lease premises. However, you cannot deliver the notice to quit by mail. This is important information for landlords that may live out of town and don't have easy access to the property in question.

While typically expected, notice to quit isn’t always required. Sometimes tenants waive receipt for a notice to quit in the lease agreement. Make sure your lease agreements are up-to-date and signed is extremely important.

What Happens if the Tenant Fails to Leave?

It's likely that a tenant may fail to comply despite receipt of a notice to quit. Don't panic. In that case, the landlord must file a recovery of possession of real property action in the Magisterial District Court of the count where the property resides. Although you can file the action yourself, a real estate attorney has the experience to do so properly to avoid delays in eviction.

The court serves the tenant the action and sets a hearing date between seven and 15 days after the complaint’s filing.

On the hearing date, the landlord must appear in person and present their case to the judge. The tenant can also submit their claim.

Tenants can assert any number of defenses during the eviction process:

  • The landlord's allegations were false
  • The breach of the lease wasn’t severe
  • The complaint wasn’t reasonable
  • Improper serving of the notice
  • The landlord failed to remedy a condition of the property such as leaks, mold, or another dangerous issue
  • The eviction violates the Fair Housing Act - this could entail discriminating on the basis of race, color, religious creed, ancestry, age, sex, pregnancy/childbirth, national origin, familial status, and disability

However, if the court rules in the landlord’s favor, tenants typically have ten days to appeal the judgment.

In addition to judgment for possession of the property, the judge can enter judgment for outstanding rent due, damage to the property, and lawsuit costs. The judge may also award the landlord attorneys’ fees if the lease agreement allows for their recovery.

Order for Possession

Fifteen days after the judge’s decision, the landlord can request that the court issue an order for possession. Within 48 hours from receipt, a constable or sheriff must serve the order to the tenant.

That order states that the tenant must vacate the property ten days after service (15 days for a non-residential tenant). If the tenant has not left after that timeframe, the constable may forcefully evict the tenant from the property. After the constable delivers possession of the property, the landlord has legal possession.

Even after the constable delivers possession of the property, additional issues may arise if the tenant has left their personal property at the residence. Further, a tenant could delay the eviction if they file an appeal of the court’s decision.

Self-Help Evictions

In some instances, landlords take measures into their own hands. For example, they may change the lock or shut off utilities. So here’s a word of advice if you’re a landlord considering this approach – don’t do it.

Most states frown on landlords forcing tenants from the property. You can only evict a tenant following a successful lawsuit. Even then, only a sheriff or constable can evict the tenant.

More importantly, the tenant can ask for an injunction prohibiting their removal during the court action. In addition, they can sue you for damages plus violations. Finally, the court can grant the tenant the right to stay on the property.

Need to Evict Someone?

Landlords are often unaware of the numerous legal requirements to evict a tenant. However, if a landlord doesn’t follow the correct procedures and provide the proper notices, it can lead to redoing steps in the process.

Missteps can form a basis for a tenant to file an appeal, further delaying the landlord’s recovery of possession. Even worse, they could lead to the tenant suing the landlord.

You can learn more about your rights by reading the Consumer Guide to Tenant and Landlord Rights. Published in June 2022, the guide covers legal requirements and best practices for renting a property.

Ultimately, a real estate attorney well-versed in landlord-tenant law can provide cost-effective assistance so that the process proceeds as smoothly as possible.

Our law firm has offices in Bucks County and Montgomery County, PA. The Best Lawyers in America recognized 16 of our attorneys for 2023. So, you can count on our firm to deliver experienced representation for any legal issue.

For more information about landlord-tenant law, contact Kevin Cornish at (610) 275-0700 or by email at kcornish@highswartz.com.

The information above is general: we recommend you consult an attorney regarding your circumstances. This information is not legal advice or a substitute for legal representation.

Tom Gabor | January 4, 2023

Mark R. Fischer, Jr. Named President of the Montgomery Bar Association Trial Lawyers Section

High Swartz LLP is pleased to announce that firm partner, Mark R. Fischer, Jr. has been named President of the Montgomery Bar Association Trial Lawyers Section for 2023. The Section is a forum for the exchange and discussion of ideas and information relating to the specific needs and interests of trial attorneys, per the section summary.

"I’m honored to serve as President of the Montgomery Bar Association Trial Lawyers Section for 2023. I really look forward to working with the Board to plan and present another year of the great events and CLEs that make this Section such a wonderful part of the MBA," says Fischer.

Mark is no stranger to trial work. As a business litigation attorney, he represents companies in breach of contract, payment collection, construction defect & consumer protection disputes in PA and NJ. He's also had the opportunity to develop his trial experience over several years as regional litigation counsel to a multinational retail company. As with any good trial lawyer, Mark finds value in the art of cooperation and collaboration with other attorneys to determine the best strategies for effectively handling matters.

On top of litigation work, Fischer is also a member of High Swartz's municipal law group, representing townships on various legal issues, land development matters, zoning disputes, and litigation matters in the Pennsylvania Court of Common Pleas and Commonwealth Court. Mark currently serves as assistant township solicitor to Lower Macungie Township and assists the municipal group in various other Pennsylvania townships.

Mr. Fischer is recognized for his litigation practice by numerous publications. Mark was included in his fifth consecutive Super Lawyers® list for his outstanding contributions in civil litigation defense work. He has also been listed as a Main Line Top Attorney in civil litigation since 2019.

MBA Trial Lawyer Section members meet monthly to discuss the status of the Montgomery County Courts and issues affecting trial lawyers. "Essentially, these meetings are great way to talk shop and generate camaraderie among the trial lawyers in the County," says Fischer.

Tom Gabor | August 31, 2022

William F. Kerr, Jr. named the Best Lawyers® 2023 Real Estate Litigation Lawyer of the Year in Philadelphia

High Swartz LLP is pleased to announce that real estate attorney William F. Kerr, Jr. has been recognized as the Lawyer of the Year in the Philadelphia Metro region for 2023. Best Lawyers® selects only one attorney in each legal service to represent a city's region. Mr. Kerr represents land developers, property managers, and owners in real estate matters including real estate tax assessments and various transactions.

Although this is his first recognition as Lawyer of the Year, Bill has been included in editions of Best Lawyers® in America since 2018, in multiple categories including Municipal Law. Kerr serves as a Zoning Board Solicitor and special zoning, development, and real estate tax counsel to several southeastern Pennsylvania municipalities. He also provides outside counsel on real estate matters to the Philadelphia International Airport.

Of special importance to Mr. Kerr is his work as a member of Habitat for Humanity of Montgomery and Delaware Counties Board of Directors. Habitat has helped thousands of our region's families build, repair and improve their homes, while assisting them in becoming financially stable.

Additionally, Bill represents numerous Pennsylvania affordable housing developers in various aspects of the affordable housing development process. These include properties financed with Federal Low Income Housing Tax Credits. Bill has been commended for his work with an affordable housing industry group that successfully pursued an amendment to Pennsylvania’s assessment law as it affects affordable housing.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 108,000 industry leading lawyers are eligible to vote (from around the world), and we have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2023 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed, which resulted in more than 67,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor.

Arnold Heller | April 20, 2022

When Letters of Intent are Involved in Litigation

What is a Letter of Intent?

A letter of intent (LOI) is a document which states proposed terms for a final contract. Depending upon what is written, an LOI may be categorized as “binding” or “non-binding.”  This is often the threshold issue in litigation concerning letters of intent – whether or not the LOI may be considered to be a binding contract.

Frequently, purchase/sale negotiations are founded upon a letter of intent.  For purposes of this article, I am focusing on LOIs as they relate to real estate transactions.

Why the Details of Letters of Intent are Crucial

Even if non-binding, it may be difficult to vary the terms set forth in an LOI; accordingly, it is important to deal with all items of significance in the letter of intent. Failure to set forth important details can lead to difficulties later, for the following reasons:

  • The parties’ negotiating leverage will be reduced if key provisions such as purchase price, deposit amount, due diligence period, land development approvals, and other items of significance are not included in the letter of intent.
  • Misunderstandings and negotiations can be minimized, along with associated costs.

Binding or Non-Binding Letters of Intent

 Typically, the parties involved do not intend LOIs to be binding, but they may still be interpreted as such.

  • Binding Contract. In the absence of specific language, the courts may look to various factors, including the terms of the letter, the context of negotiations, and partial performance, to determine whether a letter of intent is binding.  A party who breaches such a binding agreement may be subject to specific performance or damages.
  • Obligation to Negotiate in Good Faith. Where a letter of intent contains such language as “make every reasonable effort to agree,” or an agreement to “negotiate only with the other party,” the courts may impose an obligation to negotiate, even if the letter states that it is “non-binding” or subject to a formal agreement.  Even if this standard does not lead to a finding that a final contract has been created, it may be held to bar a party from abandoning negotiations, or insisting on conditions that do not conform to the terms of the LOI.

Different Degrees of Value of Binding in Letters of Intent

As discussed above, there isn’t always a clear-cut standard to determine whether a letter of intent is binding or non-binding, but there are ways to express the intentions of the parties as one or the other.

  • A letter of intent may have legitimate, binding aspects to it, even though ultimate liability may be conditioned upon execution of formal documents.  For example, a statement that the property will be kept off the market during negotiations for a specified time period, and that the seller will not negotiate with another party during the same period, may serve both parties’ objectives.
  • In order to preserve the intention that a letter of intent not be binding, the letter should not only provide as such, but should further provide that it imposes no legal obligation to continue negotiations to reach agreement.  Alternatively the letter might provide that the parties are obligated to negotiate in good faith and the like, but that if no formal agreement is reached within a prescribed period of time, either party may terminate. Termination must be “without liability” of either party.
  • If it is intended that the letter be fully binding, it might provide that if the negotiations break down, a written position statement must be prepared by each side, which is then subject to arbitration using an identified standard agreement of sale form as guidance.  Although elementary from a legal perspective, it is important to remember that a document will not be enforced if it omits an essential part of the bargain.  Thus, if an LOI is to be enforceable, it should highlight all of the basic terms.

As negotiations for real estate transactions may be extended and costly, a letter of intent can serve as a useful tool to ensure everyone is on the same page. To review the structure of your LOI and avoid future headache, consult a real estate transaction attorney who specializes in business transactions.

Note:  The information above is general; we recommend that you consult with an attorney regarding your specific circumstances.  The content contained herein is not meant to be considered as legal advice or as a substitute for legal representation.

High Swartz | November 2, 2021

What are Consentable Lines in Pennsylvania?

Proving Consentable Lines and Property Lines in Pennsylvania can be a difficult process. 

When an actual, de facto boundary between two adjoining properties exists apart from the legal descriptions of both properties by deed, Pennsylvania Law provides that property lines which are respected and mutually acquiesced to for a statutory prescribed period of twenty-one (21) years become the legal boundary between the properties. Talk to a real estate lawyer near you for questions.

Pennsylvania Law disfavors hyper-technical, rigid determinations of real property rights where the facts and circumstances warrant a departure from the broader rules of general application. The Pennsylvania Supreme Court has recognized the doctrine of “Consentable Lines” to settle issues concerning mistakes as to the boundary between adjoining properties.

Sometimes referred to as “boundary by consent and acquiescence,” the Doctrine of Consentable Lines permits the passing of title to property where adjoining landowners establish a mutually respected boundary either by mistake and inadvertence or dispute and compromise, each landowner claims and occupies the land on his side of the boundary as his own, and the occupation continues uninterrupted for a period of twenty-one (21) years. This twenty-one year requisite can include “tacking” of years from one owner to his successor in order to aggregate to a twenty-one year sum.

How do you prove a Consentable Line in Pennsylvania?

There are two ways in which one may prove a consentable line: by dispute and compromise or by recognition and acquiescence. There are three requirements for the establishment of a binding consentable line by dispute and compromise:

  1. A dispute with regard to the location of a common boundary line,
  2. The establishment of a line in compromise of a dispute,
  3. The consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith.

The requirements for establishing a binding consentable line by recognition and acquiescence are:

  1. A finding that each party has claimed the land on their side of the line as their own, and
  2. A finding that this occupation has occurred for the statutory period of 21 years.

The doctrine of boundary by acquiescence (i.e., consentable lines), functions as a rule of repose to quiet title and discourage vexatious litigation. The determination of what constitutes actual possession of property, for purposes of establishing a binding consentable line under the recognition and acquiescence method, depends on the facts of each case and the character of the premise.

If you're facing an issue with consentable lines, reach out to a real estate attorney at our local law firm.

Compromising on a Property Line

There is, however, no requirement that activities be conducted on the entire property in order for a party to prevail under the doctrine. The establishment of a consentable boundary line is always a matter of compromise, in which each party supposes he or she gives up for the sake of peace something for which in strict justice he or she is entitled.

There is an express mutual abandonment of their former rights, upon an agreement, that whether they be good or whether they be bad neither is to recur to them on any pretense whatever or claim anything that he or she does not draw from the terms of the agreement.

A consentable line is not created if the parties, from misapprehension, adjust their fences and exercise acts of ownership, in conformity with a line which turns out not to be the true boundary, or if permission is ignorantly given to place a fence on the land of a party. Whether proving a consentable line by dispute and compromise or by recognition and acquiescence, it is not necessary that the boundary line be substantial. A real estate lawyer can determine which route to take.

  • Based upon a rule of repose sometimes known as the doctrine of consentable line, the existence of a boundary line by acquiescence may be proved either by dispute and compromise between the parties or recognition and acquiescence by one party of the right and title of the other.
  • Acquiescence, in the context of a dispute over real property, denotes passive conduct on the part of the lawful owner consisting of failure on his part to assert his paramount rights or interests against the hostile claims of the adverse user.
  • A determination of consentable boundary line by acquiescence requires a finding:
    1. that each party has claimed the land on his side of the line as his own, and
    2. that he or she has occupied the land on his side of the line for a continuous period of 21 years.

Talk to Our Real Estate Attorneys

Because the finding of a consentable boundary line depends upon possession rather than ownership, proof of the passage of sufficient time may be shown by tacking the current claimant's tenancy to that of his predecessor; to do so, however, the claimant must show sufficient and credible proof of delivery of possession of land not within but contiguous to property described by deed of conveyance, which was previously claimed and occupied by the grantor and is taken by the grantee as successor in such interest.

Contact our law offices for any real estate litigation needs you may have. The real estate lawyers in our Montgomery County and Bucks County PA law offices are here to help.

Kevin Cornish | March 12, 2020

Storage Unit Laws

Pennsylvania has distinct storage unit laws that protect occupants and owners. And yes, they can auction off your contents.

Have you ever seen an episode of Storage Wars and wondered, can someone legally sell property in a storage facility? Storage Wars takes place in California, and I am not here to discuss California law. However, Pennsylvania does have a law governing self-storage facilities and the short answer, in Pennsylvania, is yes, they can do that.

In Pennsylvania, the Self-Service Storage Facilities Act, 73 P.S. § 1901 et seq. (“Act”), governs these self storage facilities. Importantly, the Act provides that:

the storage facility owner has a lien on all personal property stored in the facility. The lien is superior to all other liens except those that existed prior to the placement of the personal property in the facility.  The rental agreement must inform the occupant of this lien.

What if I don't pay my rent?

In the event that occupant fails to pay rent for a period of 30 days, the owner can begin proceedings to sell the contents. The owner must provide notice to the occupant of the default. The notice must be delivered in accordance with the Act and contain information such as:

  • the amount due
  • a demand for payment
  • a lien statement
  • a designated person for the occupant to contact
  • statement the contents will be advertised and sold if the delinquent rent is not paid.

The owner also has the right to deny the occupant access to the space until the delinquency is paid.

What if I still don't make the payment?

If the occupant still fails to make payment, the owner can proceed with advertising a sale of the contents. The owner must advertise the sale two times in a newspaper of general circulation. There are various requirements for the contents of the advertisement. Read here and learn of the requirements for each state. Additionally, the sale must occur at least 10 days after the first advertisement.

If the delinquent amount remains unpaid, the owner is free to sell the contents of the storage facility to satisfy the owner’s lien. Third parties can bid on, and purchase, the contents of the storage unit.

If you are a self-storage facility owner or renter, it is vital to assure that your rental agreements comply with storage unit laws and all legal procedures are followed to sell personal property to enforce the lien.

If you have any questions, contact Kevin Cornish at 610-275-0700 or via email at kcornish@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

High Swartz | March 9, 2020

Real Estate Transfer Tax in Montgomery County, PA

Real Estate Transfer Tax is something everyone in Pennsylvania needs to address.

Whether you’re dealing with commercial or residential real estate purchases or real estate development in Montgomery County, PA, you will inevitably be faced with having to consider whether you are obligated to pay a real estate transfer tax. Here’s what you need to know.

In Pennsylvania, there is a transfer tax imposed by the state as well as the county in which the property is located. In Pennsylvania, there is a 1% transfer tax. Montgomery County imposes an additional 1%, which is comprised of a .50% local tax and a .50% school tax.

Fortunately, Montgomery County’s real estate transfer tax is consistent with most counties throughout the state and not as high as Philadelphia County, which imposes a real estate transfer tax of 3.278%. So, on top of that whopping number, add another 1% from Pennsylvania and you're paying 4.278% in Philadelphia. 

When it comes to real estate transfer tax, most people only think of the sale of property in exchange for money, however, that is only one type of transfer on which the tax is imposed. In fact, transfer tax can apply to other transactions that involve the change in ownership of real estate by deed or other document, including long term leases.

While Pennsylvania provides exemptions from transfer taxes depending on the purpose or type of transaction and the parties involved, the law may not provide for exemption for all real estate transactions. Unlike Philadelphia, the only exemptions permitted for real estate transactions in Montgomery County are those permitted by state law.

Under Pennsylvania transfer tax law, parties such as the federal, state or local government or its agencies are excluded from being required to pay transfer tax on all transactions. However, if the party to whom the property is being transferred is not an excluded party, that party may in fact be responsible for transfer tax if the transaction itself is not excluded. These may include properties purchased at a judicial or sheriff’s sale or from a state or local government agency.

In addition to transfers to and  from the federal, state or local government or its agencies, Pennsylvania real estate transfer tax law excludes certain transactions from transfer tax. These may include deeds of correction or confirmation, transactions between certain family members, non-profits, corporations, and trusts. I’ll talk more about transfer tax exclusions in an upcoming blog.

For now, it is important to understand that transfer taxes exist in residential and commercial property transactions and that you may need to consult with a real estate attorney to protect your interests.

For more information regarding real estate transfer tax in Montgomery County, contact us about our legal services. We're one of the top real estate law firms in Norristown. Call 610-275-0700 or email us at info@highswartz.com.

The information above is general: we recommend that you consult an attorney near you regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.