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.
High Swartz LLP is pleased to announce it has received another "Best Law Firm" nod and has also been named a Tier 1 Philadelphia Area “Best Law Firm” in six practice areas.
The "Best Law Firms" rankings are based on a combination of client feedback, information provided on the Law Firm Survey, the Law Firm Leaders Survey, and Best Lawyers peer review.
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. More than 116,000 industry leading lawyers are eligible to vote (from around the world), and we have received more than 17 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®, more than 12.2 million votes were analyzed, which resulted in more than 71,000 leading lawyers honored in the new edition.
"Law Firm of the Year" awards recognize a single top firm for its work in a specific legal practice area nationwide. Awards are determined based on a handful of factors including lawyer feedback, the number of lawyers included in Best Lawyers® for that firm and practice area, the number of office locations a firm has, historical analysis of the firm’s "Lawyer of the Year" awards, materials submitted by firms and the firm’s overall scope and areas of expertise.
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. National and local resources consistently cite our law firm and its lawyers and attorneys. Talk to best -- High Swartz.
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.
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:
A dispute with regard to the location of a common boundary line,
The establishment of a line in compromise of a dispute,
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:
A finding that each party has claimed the land on their side of the line as their own, and
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:
that each party has claimed the land on his side of the line as his own, and
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.
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.
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.
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.
It's easy as a real estate agent to forgo the signing of important documents when performing services for a new client, friend, or family member. All to often, not getting your real estate commission agreement signed could make for issues trying to collect in the end.
As a real estate agent in Pennsylvania, payment for your services is almost always contingent on the sale of a property. Such a commission structure assures that when you have closed a sale, you will be paid for your services. In order to assure that you get paid, your real estate commission agreement must be in writing and signed by your client.
The Real Estate Licensing and Registration Act (RELRA), 63 P.S. 455.606a, provides in relevant part:
“A licensee may not perform a service for a consumer of real estate services for a fee, commission or other valuable consideration paid by or on behalf of the consumer unless the nature of the service and the fee to be charged are set forth in a written agreement between the broker and the consumer that is signed by the consumer. This paragraph shall not prohibit a licensee from performing services before such an agreement is signed, but the licensee is not entitled to recover a fee, commission or other valuable consideration in the absence of such a signed agreement.”
Further, the Pennsylvania Superior Court has upheld the requirement that a real estate commission agreement be set forth in writing and signed. In the case of Coldwell v. Dreslin, the realtor only had an oral agreement with its client for payment of a commission. When the realtor was not paid, the realtor filed a lawsuit to recover its commission. The court ruled that the oral fee agreement was not enforceable.
While it is often standard practice to obtain a written fee agreement prior to performing services, it is vital that the agreement is signed prior to performing any services for a client. Sometimes realtors may begin performing services expecting that the fee agreement will be signed in due course. However, if the client is successful in buying or selling a property quickly, the realtor could face a difficult position if the commission agreement has not been signed. This may be especially true in a situation where the realtor and client are friends, longtime business acquaintances, or family.
If you are not sure if you have an enforceable real estate commission agreement for the distribution of fees, you should contact a real estate lawyer.
As a realtor, you should always obtain a signed fee agreement in Pennsylvania before performing any services for a client. This holds true throughout the Commonwealth including for real estate transactions in Montgomery, Bucks, and Philadelphia County.
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.
In Pennsylvania, it's a landlord's right to file an order for possession in Magisterial District Court if a tenant fails to make timely rental payments.
Once a landlord receives an eviction judgment from the court, and no appeal is filed, the landlord has the right to request an order for possession of the property from the Court. An order for possession gives a sheriff or constable the right to evict a tenant from the leased property. However, a landlord may be faced with a tenant who wants to make payment of the judgment before the eviction.
Tenants in Pennsylvania have the right to pay and stay under the Landlord Tenant Act. 68 P.S. § 250.503(c). This means that a tenant can make payment up to the actual time of the eviction and remain in the property. The landlord would not be permitted to proceed with an eviction. But what amount must the tenant pay? And what amount must a tenant pay if additional rent came due after the date of the judgment?
What amount does the tenant have to pay to stay in the property?
The Landlord Tenant Act requires a tenant to pay “rent actually in arrears and the costs.” 68 P.S. § 250.503(c). This means that the tenant must pay the judgment amount plus the landlord’s costs in obtaining a court order for possession.
How much does the tenant pay if additional rent was due after the date of the court judgment?
In a situation when additional rent comes due after the judgment, a landlord may think that the tenant would also have to pay such additional amounts to remain in the property. However, this is not correct. A tenant is required to only pay the amount of the judgment plus costs, even if additional rent comes due after the judgment and before the eviction. Therefore, a landlord may be faced with a situation in which a tenant pays the outstanding judgment, but is still delinquent in rent. The landlord must then proceed from the beginning with another lawsuit in Magisterial District Court to obtain a judgment and order for possession.
High Swartz LLP real estate attorneys continue a long tradition of handling all aspects of real estate transactions. This work includes the protection of the interests of landowners, buyers and sellers of land, municipalities and developers. This work is a vital area of the firm’s practice, which is situated in the dynamic Greater Philadelphia handling real estate transactions in Montgomery County, Bucks County, Chester County, Delaware County and Philadelphia.
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 is pleased to announce that 11 of its attorneys have been named among Pennsylvania’s 2019 Super Lawyers and Rising Stars. Among the highlights are two inclusions on the 50 Top Female Lawyers in Pennsylvania list going to Melissa M. Boyd and Mary Cushing Doherty of the High Swartz Domestic Relations practice.
2019 High Swartz attorneys added to the Super Lawyers List
What is Super Lawyers?
The Super Lawyers list recognizes no more than 5 percent of attorneys in each state. The Super Lawyers Rising Stars list recognizes no more than 2.5 percent of attorneys in each state. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger, or in practice for 10 years or less. High Swartz 2019 Super Lawyers and Rising Stars are listed below in alphabetical order.
Melissa M. Boyd: Has been nominated to her 5th consecutive Super lawyer list preceded by 6 Rising Star distinctions. On top of her streak, Missy has been nominated to 3 Super Lawyers Top Lists in Pennsylvania. Those accolades are 100 Top Lawyers in Pennsylvania, 100 Top Lawyers in Philadelphia and 50 Top Female Attorneys in Pennsylvania. Missy is a partner and family law attorney with High Swartz and advocates in various areas including divorce, prenuptial and postnuptial agreements, child custody and child support, equitable distribution, alimony, adoptions, protection from abuse and juvenile law.
David J. Brooman:2019 marks the return to the Super Lawyers list for David. This is his 10th selection. As a land development and litigation attorney, David J. Brooman has more than three decades experience in zoning and land use development, as well as environmental law.
Mary Cushing Doherty: This will be Mary’s 16th consecutive selection to the Super Lawyers list. Along with her distinction, she’ll join the 50 Top Female Lawyers in Pennsylvania list. With a distinguished record of professional and community service, Mary Cushing Doherty has more than 35 years of legal experience as a family law lawyer. She concentrates her practice on all aspects of marital dissolution and family law issues including divorce, child support, custody, spousal support and alimony, premarital agreement asset protection, complex property division, and is the chair of High Swartz’s Family Law practice.
Mark R. Fischer: Mark has been nominated to his second consecutive Super Lawyer designation. He focuses his practice primarily on representing businesses in breach of contract, payment collection, construction defect, and consumer protection disputes throughout Pennsylvania and New Jersey.
Gilbert P. High, Jr.: This will be Gil’s 14 section in a row. Gil’s impressive career is devoted primarily to the practice of municipal and Real Estate and Land Use Law. He regularly speaks on issues pertaining to municipal liability, particularly regarding the maintenance of the Urban Forest, a subject on which he has lectured nationally.
Thomas E. Panzer: This is Tom’s first and much-deserved selection to the Super Lawyers’ list. Thomas E. Panzer, a workers’ compensation attorney, joined High Swartz in 2016 as a result of a merger with McNamara, Bolla & Panzer, Attorneys at Law, a firm for which he served as Managing Partner. Mr. Panzer is active in his community and is currently the Bucks County, Pennsylvania Treasurer.
Thomas D. Rees: Elected to his 14th Super Lawyers list, Tom heads the firm’s Litigation and Employment Practice. He focuses his practice primarily on employment law and private education law. In the education area, Tom represents a number of independent schools in the Philadelphia area, handling employment, student discipline, contract, and governance matters.
Joel D. Rosen: As High Swartz’s Managing partner, Joel has been a Super Lawyer since 2017. With more than 30 years of legal experience as a corporate law attorney, Joel Rosen’s areas of practice include franchise law, business and commercial law, employment law, trademark/copyright law and commercial leasing.
2019 Rising Stars attorneys from High Swartz
Kevin Cornish: Recently elected as a partner at High Swartz, Kevin receives his 8th Super Lawyers Rising Star selection. Kevin focuses his practice on commercial, civil, and contract & multi-state litigation support. His clients include individuals as well as local, regional, and national businesses up and down the east coast.
Elizabeth Early: has been nominated to her third consecutive Rising Star selection. Her areas of specialization include divorce, custody, support, equitable distribution, pre and post-nuptial agreements, parenting coordination and abuse matters. Liz also serves as court-appointed counsel and guardian for minor children.
How were the High Swartz Super Lawyers selected to the list?
Super Lawyers nominates the best attorneys using a unique selection process. Peer evaluations and nominations are combined with independent research. Nominees are evaluated on 12 indicators from professional achievement through peer nominations. Nominations are made on an annual, state-by-state basis. The Super Lawyers objective is to create a credible, comprehensive and diverse listing of outstanding attorneys on a national level that can be used as a resource for attorneys and consumers searching for legal counsel. As an aid to those selecting a lawyer, Super Lawyers only selects outstanding local lawyers who are able to be retained by the public.
In a recent decision, the PA Supreme Court reversed the Commonwealth Court’s ruling and in doing so, state that Airbnb-type rentals are against residential zoning laws.
Back in March 2018, I wrote about the Pennsylvania Supreme Court’s decision to review a case involving a now-prevalent issue confronted by municipalities across the country…the influx of Airbnb’s in their residential neighborhoods. On April 26, 2019, the Court issued its decision in the case of Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd., and in the process made for a lot of happy municipalities throughout the Commonwealth.
The Pennsylvania Supreme Court, in reversing the Commonwealth Court’s ruling, decided that short-term transient rentals (such as those typically found on websites such as Airbnb and VRBO) were not a permitted use in the residential zoning district at issue in the case. The Court stated that “the purely transient use of a house is not a permitted use in a residential zoning district limiting use to single-family homes by ‘a single housekeeping unit.’”
In making its ruling, the Court discussed how most zoning ordinances define the term “family,” acknowledging that many have adopted the phrase “single-housekeeping unit,” which has become a widely-accepted term of art that the courts have defined as requiring the occupants of a home to live and behave like a family in a character that is permanent and not transitory. The Court examined the goals of zoning in general, and more specifically in creating residential zoning districts, explaining that the underlying purpose of creating neighborhoods and a stable community environment support the conclusion that the transient nature of short-term rentals confound this goal and there cannot be a permitted use in such residential zoning districts.
PA Supreme Court comes down hard on Commonwealth Court
Perhaps more astounding than that headline-making part of the ruling is the High Court’s resounding rejection of how the Commonwealth Court has been applying the zoning law in the Commonwealth. Like a parent slapping the wrist of petulant child, the High Court reprimanded the lower appellate court for ignoring prior Supreme Court precedent and creating the false rule that a use not specifically excluded by a zoning ordinance is a permitted use. The Supreme Court corrected this error of interpretation, explaining that the correct rule is that a use is excluded unless expressly included in a given zoning district, with the interpreting body to undertake a “functional analysis” to determine whether the proposed use constitutes a permitted use under the language of the zoning ordinance at issue.
What does the Slice of Life decision mean for PA rental properties in residential districts?
This decision is a significant win for municipalities across the Commonwealth seeking to preserve those underlying characteristics of its residential districts as discussed by the Supreme Court without having to modify their existing zoning ordinances. At the same time, it effectively shuts down the “Airbnb market” in single-family residential zoning districts in Pennsylvania, rendering a major blow to the property owners and online services that depend upon those short-term rentals for their bottom lines. What will remain to be seen going forward is the effect the decision will have on other non-traditional “family” uses in residential districts, such as sober-living houses, that have characteristics of both family and transient uses. The ramifications of the decision will surely be felt for years to come.
