Alan Nochumson of Nochumson P.C.

In 631 N. Broad Street v. Congregation Rodeph Shalom, 2017 Phila. Ct. Com. Pl. LEXIS 194 (July 10), Judge Ramy I. Djerassi recently allowed a neighboring property owner to prevent a real estate developer from creating openings in a side wall to a building it owned for the installation of windows for proposed residences. In doing so, Djerassi dealt with what constitutes a party wall and the rights and obligations of neighboring property owners in its maintenance and alterations.

In 631 N. Broad Street, 631 North Broad Street and Congregation Rodeph Shalom owned neighboring properties on North Broad Street in Philadelphia. 631 North Broad Street owned the property it was aptly named for and Congregation Rodeph Shalom owned 619 North Broad Street. The property owned by Congregation Rodeph Shalom is immediately south and adjacent to the 631 North Broad Street property, the opinion said.

According to the opinion, the building situated on the 631 North Broad Street property was built in the 1860s. At the time, that property was built to be a stable, the opinion said.

As for the 619 North Broad Street property, a commercial bakery existed there during the first half of the 20th century, and “this bakery and the stable were adjoined along the South Wall until the bakery was demolished in the 1950s and the wall was left standing attached to the stable building,” the opinion said.

The south wall of the building at the 631 North Broad Street property extended approximately five inches over the property line onto the 619 North Broad Street property, the opinion said. At the time, according to the opinion, “Pennsylvania’s party wall statute allowed for the construction of party walls up to 6 and a half feet over a property boundary.”

There was a disagreement between the parties which the prior property owner built the south wall adjoining the properties at the time. Ultimately, Djerassi found that the south wall was built by the previous owner of the 631 North Broad Street property.

From the 1950s through the present time, no building existing on the 619 North Broad Street property has physically connected to the 631 North Broad Street property, the opinion said.

In 2009, Congregation Rodeph Shalom purchased the 619 North Broad Street property. At the present time, there is a one-story building located there and the building has been used by Congregation Rodeph Shalom as an early learning center for young children, the opinion said. The existing building at the 619 North Broad Street property is separated from the south wall by an alleyway, the opinion said.

In 2011, when the south wall on the side of the 619 North Broad Street property required repair due to falling brick and masonry, Congregation Rodeph Shalom paid $350,000 to fix the brickwork and to add new meshing and a layer of stucco, the opinion said. After the initiation of litigation, the owner of the 631 North Broad Street property at the time agreed to pay a portion of these repair costs through settlement to Congregation Rodeph Shalom, the opinion said.

A disagreement ensued between 631 North Broad Street and Congregation Rodeph Shalom when 631 North Broad Street revealed its plans to redevelop the building occupying the 631 North Broad Street property. Under its plans, 631 North Broad Street proposed to convert the existing building into residences and, in doing so, sought governmental approval to demolish portions of the south wall of the building for the installation of windows for the residences on the south wall.

631 North Broad Street ultimately filed a complaint seeking declaratory judgment and quiet title against Congregation Rodeph Shalom when the disagreement could not be amicably resolved.

In response, Congregation Rodeph Shalom filed a counterclaim against 631 North Broad Street as well as a petition for a preliminary injunction to prevent 631 North Broad Street from so demolishing the south wall while the litigation between the parties was pending.

After a hearing before Djerassi and related written submissions by the parties, Djerassi, among other things, entered an order in equity granting preliminary injunction against partial or total demolition of the south wall as well as an order declaring that the south wall is a party wall with specific property rights belonging to Congregation Rodeph Shalom, as the owner of the 619 North Broad Street property and, thus, denying quiet title to 631 North Broad Street.

631 North Broad Street then appealed Djerassi’s rulings and he issued a written opinion setting forth his rationale for these rulings.

Djerassi first addressed why he granted Congregation Rodeph Shalom’s petition for a preliminary injunction.

As he noted, “the purpose of a preliminary injunction is to preserve the status quo as it exists or previously existed before the acts complained of in the complaint” and “by preserving the status quo, the preliminary injunction attempts to avoid imminent and irreparable harm pending final adjudication of the underlying controversy.” In doing so, Djerassi emphasized that “a preliminary injunction is ‘an extraordinary, interim remedy that should not be issued unless the moving party’s right to relief is clear and the wrong to be remedied is manifest.’”

In granting the petition for a preliminary injunction, Djerassi ultimately agreed that Congregation Rodeph Shalom was likely to prevail on the merits because it had a property interest in the south wall.

Djerassi surmised that south wall was, indeed, a party wall.

Citing to Turchi v. MCW Washington Square Partners, 2006 Ct. Com. Pl. LEXIS 32 (Jan. 3, 2006), Djerassi indicated how courts in Pennsylvania decide whether a wall should be deemed a “party wall.”

In Turchi, the trial court pointed out that “a party wall sits between adjoining properties and “each property is servient to the service of the other with respect to the property wall.”

The trial court in Turchi stated that the “primary factor in determining whether a wall is a party wall is the intent of the builder” and “other factors include the wall’s location with reference to the boundary line between adjoining properties … the understanding of the adjoining owners at the time it was built, and its use for a long number of years.”

Relying upon the Superior Court of Pennsylvania’s ruling in Sobien v. Mullin, 783 A.2d 795 (Pa. Super. Ct. 2001), Djerassi cautioned that “it is not necessary that such a wall be used to support the roof or floors of both buildings” and that “it is enough that the wall be used as a curtain wall, protecting the buildings from the elements and protecting the spread of fire.”

Djerassi concluded that the south wall was clearly a party wall under the circumstances because, among other things, “evidence established the it was built as a party wall in accordance with relevant Pennsylvania statutes and Philadelphia ordinances authorizing builders to encroach over property lines when building party walls,” “photo evidence also established actual use of the South Wall as a party wall for many years connecting a bakery and a stable,” and “after the bakery was demolished, the south wall was left standing and no evidence shows any of the subsequent 619 North Broad Street owners contractually sold, or otherwise devised their interest in the south wall.”

Further, Djerassi disagreed with 631 North Broad Street’s argument, “since the south wall is no longer used as a party wall, it is not a party wall in law today.”

Specifically, Djerassi noted that “there is no evidence of any easements or covenants that address the status or use of the party wall in the event one of the adjoining buildings is demolished” and “nothing states that ownership of the wall lies with the property owner that owns the last building standing.”

Since the south wall is a party wall, Djerassi held that “631 North Broad Street and Congregation Rodeph Shalom own it.”

As such, Djerassi then moved to the question as to whether 631 North Broad Street could unilaterally open a hole in the wall by way of the inclusion of windows for the proposed residences without the permission of Congregation Rodeph Shalom.

Citing to Pennsylvania Supreme Court precedent in Milne’s Appeal, 81 Pa. 54 (1876), Djerassi answered that question in the negative.

In no uncertain terms, Djerassi emphasized that, unless the parties agree otherwise, “when a party wall exists, an owner of the party wall is entitled to a solid wall.”

As a side note, Djerassi pointed out that Congregation Rodeph Shalom also has not abandoned its right to the south wall as demonstrated by the significant amount of money it paid to repair it in 2011.

In addition to granting the petition for a preliminary injunction, Djerassi also adjudicated the merits of the complaint filed by 631 North Broad Street in favor of Congregation Rodeph Shalom.

While Djerassi recognized that “there are limited exceptions that give a party wall owner permission to alter a party wall,” such as an implied duty to maintain its side of the wall or the implied reciprocal obligation to protect a building from exposure to the elements or risk of fire, he reasoned that these exceptions did not apply under the circumstances.

Rather, according to Djerassi, 631 North Broad Street is merely proposing to demolish portions of the party wall for the installation of windows for the residences as a result of its own architectural design choices.

Because the south wall is a party wall which is not subject to unilateral changes, and since the changes requested to the south wall did not fall within the stated permitted exceptions, Djerassi found that Congregation Rodeph Shalom prevailed on the merits of the claims of declaratory judgment and quiet title set forth in the complaint filed by 631 North Broad Street.