We just successfully finished an interesting trial on the subject of Tacking. Our client lost patience with his next door neighbor. About 20 years ago the daughter of the longtime neighbor moved in and doubled the size of the home and expanded her use of a driveway onto my clients property. Things got worse in about 2013 where the next door neighbor’s new husband built a large concrete architectural deck on out client’s property and installed electric and large tent structures.
There was a large dispute over permission or lack of permission to use the area but the interesting topic was tacking. Remember the neighbor’s daughter had been using the property for 20 years. The original neighbor (the mother) died in about 2013. Her estate was probated but no deed ever issued to the current occupant. The neighbor wanted to “tack” her mothers period of ownership to her period of occupancy to get past the 21 years needed for adverse possession.
At the beginning of trial in front of a visiting judge, we handed up a “Pocket Brief” on the subject of tacking. The judge recessed to read the brief and came back to tell Defendant (the neighbor) she had no case as a matter of law. Since this was a “knockout” in the first seconds of the first round, we thought a copy of the brief would be useful for people trying to learn about tacking.
MEMO OF LAW
Defendant in this matter has not occupied the property she claims by adverse possession for the required 21 years. The property to which she claims a fee simple ownership is adjacent to property where she lives. She is not a record owner of that property. Record title is in her deceased mother, whose estate has been probated and closed.
Defendant claims her mother occupied the claimed area by actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the subject property for a number of years. She claims the right to add this time to her time of possession to make up the 21 years under the concept of tacking.
The Supreme Court has made it clear that in cases of adverse possession tacking requires privity of title. See Baylor v, Soska, 658 A. 2d 743 (PA 1995) citing Masters v. Local Union No. 472 United Mine Workers, 22 A.2d 70(Pa. Super 1941). The Baylor Court described privity as a succession of relationship to the same thing. It discussed that succession as coming out of a deed, or other acts or by operation of law.
This concept of privity requires two types of analysis; 1) is there a deed, other act or some operation of law in play; and 2) if one or more of those concepts exists, does it create privity.
The most common application of this principle is where successive owners to a property wish to add together, or tack, their adverse occupancy of a certain parcel of land. The Baylor Court made it clear the deed alone does not create privity to anything outside the metes and bounds described in the deed. In more simplistic terms, for taking to apply the deed must not only describe the property being conveyed with a warranty, it must also describe the property over which the claim of adverse possession has ripened or is in the process of ripening.
We know here we have no deed describing anything, so we turn to examine if there is an other act, or operation of law, by which the fee, or the inchoate claims to the property are transferred to Defendant. Again, the Baylor Court provides guidance stating: “we believe that the entire concept of ‘circumstances’ in the context of taking is misplaced.” Baylor v. Soska, supra.
Whether the relationship between the parties is by deed or otherwise, the Baylor Court clearly set forth what is required to tack and why. “Whenever a grantor seeks to convey an inchoate claim of adverse possession, what is required is a reference to the disputed tract or to the grantor’s inchoate right.” Baylor v. Soska, supra.
The only method by which an adverse possessor may convey the title asserted by adverse possession is to describe in the instrument of conveyance by means minimally acceptable for conveyancing of realty that which is intended to be conveyed. Id. at 746.
The reason for this is that the public has the right to discern from the public records the state of title to property. The party claiming the right to steal property of another (indeed adverse possession is probably the only endorsement of theft in the law), must do so openly and notoriously to the entire world. (see Baylor v. Soska, supra.). That party is also held to the strict proof of each of the elements (actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the subject property for more than 21 years). “It is a serious matter indeed to take away another’s property. That is why the law imposes such strict requirements of proof on one who claims title by adverse possession.” Edmondson v. Dolinich, 453 A.2d 611, 614 (Pa. Super. 1982). (emphasis added)
In the present case there is no deed describing the claimed property. There is no reference to it in the wills of either of the record title holders. It exists only in the mind of the Defendant.
The Defendant’s best argument is that she is an heir of the record title owners and that title to the real estate, by operation of law, vests in her at the moment of death, subject to the right of the executor in administering the estate. That takes us back to the record deed. It does not describe the property over which the Defendant now claims ownership. The inchoate rights, which have not ripened into a real property interests, pass by the will in normal probate proceedings. There is no evidence the decedent intended to pass inchoate rights in the Esworthy Property. In addition, to make a claim as an heir, she would have been required to name her co-tenants as parties. If her mother really had the right she claims exist, those rights would belong to all heirs. It is well established that one cotenant cannot claim adverse possession against another cotenant unless there is an ouster of the latter: Smith v. Kingsley, 200 A. 11 (PA 1938); Hover v. Hills, 117 A. 346 (PA 1922).
The present case has some common points with Tarabori v. Fisher, 159 A. 3d 58 (Pa. Super. 2016) where the claimant claimed the possession of the claimed property was based on her greater family’s use of the area. Based on Baylor vs. Soska, supra., the Court held the lack of a deed describing the area defeated privity and barred tacking.
SUMMARY
The Defendant, even if she were an owner of the property did not receive a deed transferring rights in Mr. XXXXXX’s property. Nor did the will of the record owner set forth an intent to transfer such rights. In addition, Defendant did not name as parties her potential co-tenants. As a result, the Defendant cannot tack and cannot make an exclusive claim to a fee simple interest in the XXXXXX Property.
