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James S. Tupitza
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James Tupitza’s Answers

2,586 total


  • Do we have a case against the seller for responding "no" to dampness in the disclosure or does the inspection eliminate that?

    Within the last 6 months we purchased a house that was flipped. A month ago we noticed water leaking in to the basement from several locations, which we later found out had lead to mold damage. Within the disclosure statement the seller responde...

    James’s Answer

    Let me give you the three most difficult parts of a Failure to Disclose case.
    1) You will need to pay an expert who can testify that the seller unsuccessfully tried to correct or successfully tried to cover up a prior problem ($$$$$); 2) It can cost between $7,500 and $20,000 to litigate a Failure to Disclose case; and 3) if the damages are not large, the law of diminishing returns can crush a buyer.

    Let me also give you a positive suggestion. Your agreement of sale probably has a mediation clause. Even if you rejected mediation, you might want to see if it works. Here are the important things you need to remember if you mediate: 1) you will do best if you bring a lawyer, known in the community as an active litigator of this type of case; 2) you must be prepared to compromise, 3) you must be over organized.

    We know this: people make decisions based on what they are going to lose and not on what they are going to gain. You need to make the seller think he is going to lose money and reputation (Money because you will go to court and the seller will have to have his or her own expert and attorney. Reputation because you know how to use social media to report what happened to you).
    Consult with a real estate lawyer and come up with a plan.

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  • Township claiming my road is a private road even though its on state maps

    Township is claiming a road is a private public use road, even though its on there own maps and on Official PA General high way maps as a township road for past 40+ years what can be down legally, why do i have to prove its a township road when...

    James’s Answer

    Your question relates to whether the road in a public road or a paper street. If a street goes onto a plan, there is an implied offer to dedicate it to the municipality (and create a public street or public road). If the municipality does not accept dedication, or perform maintenance on the road within 21 years, the right to have it become a public road lapses. Let me give you two practical tips on determining whether or not the road has been maintained by the township: 1) ask the oldest neighbor; and 2) go to the township building and ask to see the liquid fuels report from the date the plan laying out the road was recorded.
    Municipalities get money from the state to maintain their roads. In order to calculate the $, they list the exact roads maintained and the length of those roads.

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  • Can I sue her for the $14,000+ in damages to the property?

    I am a 50% owner of a home with my ex wife. She has lived in the home by herself for several years and has created more than $14,000 in damages. I am petitioning to partition and would like to know if I can use the damages as leverages for her to ...

    James’s Answer

    If you are bringing a partition action, at the hearing before the Master, you will ask that she be held responsible for the damages. A Master in Partition decides how the property will be sold and how the money will be divided. That decision becomes a recommendation for the judge who will enter the final Order.

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  • Do I have legal standing to compel him to pump his runoff elsewhere?

    My neighbor's house sits higher than mine. He is dumping the runoff water in my side yard, directly above my foundation. There is no local ordinance regarding this issue.

    James’s Answer

    You do not need a local ordinance. PA common law address water. We are teaching a CLE course in Pittsburgh, Mechanicsburg and Philadelphia in the next month on the topic of Boundary Law in PA. Let me give you a brief (very brief) Reader's Digest of my materials.
    Storm water has a natural easement to flow over properties that are downhill. An uphill owner cannot: 1) concentrate the flow of the water; 2) increase the rate of flow; or 3) make any changes that negatively impact a downhill owner.

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  • I have a Real Estate/Tax/Trust poser re: selling a second home that I hope someone is willing/helpful enough to tackle…….

    Part 1: (1) Parents bought PA home mid-1950’s for $20K. (2) They bought FL condo late-1990’s & later estab'd FL residency. (3) Both homes moved under their Revocable Trust (parents=co-trustees) a few yrs ago. (4) Dad passed away earl...

    James’s Answer

    See my reply to part two of your question.

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  • PART 2: I have a Real Estate/Tax/Trust poser re: selling a second home that I hope someone is willing/helpful enough to tackle…

    So, if we understand correctly, if the PA home’s market value was $300k when Dad passed, the new basis cost of the home would be $150k for his portion, plus ½(20k purchase price + 30k improvements = $50k) = $25k for my Mom’s portion, for a total n...

    James’s Answer

    Let me start by saying this site is designed for simple questions that don't fall into the scope of providing actual legal advice. Secondly, the IRS places limits on the giving of tax advice. That said, you are close, but not quite there. There are a few things you could do to lower the tax burden. You need to actually retain a lawyer to get this detailed advice for two reasons: 1) some things in life are free, but tax advice is never on that list; and 2) you are going a lawyer to need to generate documents to accomplish your purpose anyway.

    Let me say one last thing: you are not the only person with this problem. I sometimes see this same question once or twice a month. The fact that you are so organized, and your question so well stated (my old high school AP English teacher would give you a star) will impact the cost to solve this problem.

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  • Were we allowed to turn off water?

    We do not have a written lease with our tenant because he was a friend. We've given him a 30 day notice to quit on 11/8/15. He begged us to give him more time. He and his girlfriend have done over 5000.00 worth of damages. He sent us a text t...

    James’s Answer

    You may turn water off to protect from freezing when the heat is off, but you cannot use it as a means of evicting a tenant. ALL EVICTIONS must be through the use of the courts. SELF HELP evictions in PA expose the landlord to significant damage claims.

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  • Can the Praecipe to S/D/E be thwarted, and if not, can I still sue her regarding the issues in my Counterclaim?

    I was sued by my ex-landlord in order to for her to somehow force me to vacate the premises despite the fact that the municipal judgement was in appeal, and I was paying the court the rent into escrow as they require (which she knew but lied like ...

    James’s Answer

    This means their case is over. Call Court Admin and make sure your case gets listed for trial.

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  • Can they go back on their word and receive money?

    I am a former tenant. I had a one year lease. I gave our landlord a notice that we will not be renewing our lease a month and a half before the lease ended. They verbally agreed that it was okay. The lease says give a 90 day written notice. That w...

    James’s Answer

    You are going to have to go to small claims court. Read up on two things: 1) accord and satisfaction, and a statute found at 68 P.S. 250.512. Good luck.

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  • How to claim a paper alley that is on a map that was never put in. I want to claim 100 feet length by 12 feet wide paper alley

    I live in Clarion Borough, PA. Right behind the house I live in there was supposed to be an alley put in, it was put on a map that I have but the alley was never put in. The alley is 12 feet wide about anywhere from 1,000 feet to 1,00 feet long....

    James’s Answer

    Let me explain paper streets and alleys. Whenever a person creates a subdivision which shows a street or alley, two types of rights are created: 1) public rights--- for a period of 21 years the municipality can claim the street or alley as a public street; and 2) private rights --- every owner of any portion of the land subdivided has the right to use the proposed street--- this includes the right to drive across the lawn that was planted.
    If properties are described to the edge of the proposed street or alley, after 21 years, if the municipality has not taken dedication, or performed maintenance, the title line will automatically move to the center of the alley or street. In your case, the north and south owners each pick up 6 feet.
    When someone claims more than they own, and do so in a certain way (read my guides on adverse possession) they can become the owner after 21 years.
    Now for the last and most interesting part: Ownership of the 12 area is still subject to the right of every lot owner to drive over the paper alley UNLESS a property owner had made it physically impossible to use the alley for more than 21 years. Here is an example: one of my church clients needed to expand the church, they built over the paper alley. Obviously you could not drive through the building. After 21 years there was no alley.
    I think there should be a guide on this topic which I wrote years ago. This is also covered in a book I wrote called Boundary Law in PA.

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