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Ejectment actions, like those to quiet title, are not only prevalent, but also present procedural hurdles for the real estate practitioner and the courts alike. Take the situation of a developer who acquires a majority portion of a parcel of land originally intended to be home to the second phase of a condominium community. The original owner properly recorded a declaration of condominium but failed to file a site plan consistent with that same use. In fact, the only site plan of record is one that reserves that same conveyed majority parcel (now even having its own separate tax number) for use as a parking lot and boating slips, for the benefit of the Phase I owners. The residents get wind of the successor developer’s intent to do a bit of its own lucrative development, and they attempt to block those efforts in the shape of litigation. That association, in addition to setting forth mandamus counts against the local recorder of deeds and board of assessment, pursues ejectment and quiet title relief against the current owner. Incidentally, the ejectment and quiet title counts are part of the same suit. The association figured it would prevent the developer du jour from further trespassing upon its property and simultaneously settle all title scores in perpetuity – maximize its relief, so to speak. But is such a pleading even procedurally permissible, as tempting as it might be? Our commonwealth’s Rules of Civil Procedure offer guidance with respect to ejectment (Rule 1051) and quiet title (Rule 1061) relief. Where an action in ejectment will not lie, one for quiet title is appropriate. Additionally, under 1061(b)(1) a quiet title action may be brought by one in possession to compel one out-of-possession yet claiming an interest in a subject property to commence an ejectment action. An ejectment claim would be brought by an out-of-possession plaintiff alleging a right to possess against a defendant with actual possession – this is essentially 1061(b)(1) in reverse. A third alternative would be an action to quiet title under 1061(b)(2), where the plaintiff is not in possession but is not claiming an interest in the subject property. In the introductory scenario, which forms the actual facts of the Riverwatch Condominium v. Restoration Development case, decided last August by the Commonwealth Court, the association’s effort at pursuing both actions together (ejectment and quiet title) created a jurisdictional dilemma. Riverwatch is little more than the unfortunate byproduct of one developer’s failure to properly subdivide. Originally, Riverfront Inc. owned what was once a quaint approximately three-acre parcel along the Delaware River in Tinicum Township. Riverfront had plans to develop what was now Restoration Development Corp.’s portion as part of the second phase of the Riverfront condominium complex. Phase II was to be utilized for parking and boat slips, as illustrated by the site plan of record. That parking area would be accessed across the one-acre residential portion of the project. Eventually, the Riverfront developer had a change of heart. With Phase I remaining the same, the other portion would also receive condominiums; a revised site plan was never recorded though. Instead, a declaration of condominium, which referenced the Phase II land as convertible real estate and reserved easements, was submitted. Many months later, the Phase II portion was conveyed to Riverfront Marina Inc. Restoration took title two years later. Concluding that the time was ripe to develop its recently acquired parcel with a 52-slip marina, eight condominiums and an appurtenant structure, Restoration tendered its development plan, which relied upon access across the Riverfront Condominium Owners Association’s neighboring parcel. The association, deprived of its promised parking and boat slip conveniences, commenced litigation against Restoration, essentially seeking to enjoin its ambitious little project. The Delaware County Recorder of Deeds and Board of Assessment were also named. At bottom, the association contended that Restoration’s parcel was never properly subdivided. Rather, in its estimation, the disputed parcel was conveyed to the association by operation of law, by means of the declaration. Counts I and III, respectively, both to quiet title, requested that the trial court declare the association the lawful owner of the Restoration parcel and that it deny access across its parcel to Restoration. Count II, an action in ejectment, sought to prevent Restoration’s trespass upon the subject parcel. The final two counts, both sounding in mandamus, sought the rescission of the Restoration deed and the elimination of a separate tax folio number for that same parcel. Although Restoration specifically denied that the association was in possession of the disputed two-acre parcel, thereby creating an issue of material fact, its summary judgment motion was nevertheless granted, with reconsideration denied to boot. The Riverwatch court acknowledged the factual dispute and went one step further, citing to the procedural irregularities of the matter before it. Possession is actually a jurisdictional prerequisite for Rule 1061. The Restoration court, referencing the Pennsylvania Supreme Court decision in Mildren v. Nye, elaborated: “As there must be possession to give the court its purely statutory jurisdiction, it cannot acquire jurisdiction where there is a mere contest, however substantial as to the fact of possession in the petitioner. In such a case the remedy is still trespass or ejectment under common law.” The Superior Court has concluded, in Plauchak v. Boling, that “[i]t is procedurally improper to simultaneously commence an action in ejectment and an action to quiet title regarding the same parcel of real estate.” So it is irrefutable that the association improperly pled both actions concomitantly. Under such circumstances, it was incumbent upon the trial court to make an initial determination of which party was in actual possession (at the time of the filing of the complaint) of the relevant parcel in dispute; such a determination was a jurisdictional prerequisite to a ruling on the merits consistent with Rule 1061. Hence, the Riverwatch court was compelled to remand the case back to the lower court for resolution on this very issue. So although the Rules of Civil Procedure are fairly liberal in terms of a litigant’s right to proceed upon the appropriate theory, the question of possession must still be addressed and preferably ab initio in these types of actions. The failure to do so will only create significant and unnecessary delays, which can only prolong critical determinations respecting the parties’ property rights. HARPER DIMMERMAN represents clients in real estate matters and is the principal of his firm and president of DST Land Transfer Inc., a title insurance company licensed in Pennsylvania and New Jersey. He may be reached via email: [email protected] or telephone 215-545-0600. He is co-chairman of the Philadelphia Bar Association’s Solo and Small Firm Committee and an executive committee member of the Law Practice Management Committee and YLD.

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