LEGAL GUIDE
Written by attorney James S. Tupitza | May 20, 2010

Consentable Lines - Distinguish fro Adverse Possession

CONSENTABLE LINE DISTINGUISHED FROM ADVERSE POSSESSION

(A). Adverse Possession is discussed in section IV, but for purposes of this section it requires (1) exclusive possession of the property sought to be acquired; and (2) for tacking purposes, transfer from predecessor including reference to the disputed property in the instrument.

(B) Possession of successive occupants may be tacked where each predecessor claimed title to the property in dispute, and in transferring it to his successor, purported to include it. Corbin v. Cowan, 716 A.2d 614 (Pa. Super, 1998). See also, Plot v. Cole, 377 Pa. Super. 585, 547 A.2d 1216 (1988). In the case of Zeglin

(C). The consentable line doctrine can be an attractive alternative to an adverse possession claim where tacking is necessary, because the former does not actually require reference in the deed to the transfer of inchoate rights. Caution should be exercised because the failure of the claim to ripen by 21 years into an inchoate right might be the basis for an argument that specific reference to the claimed boundary line must appear in a deed for tacking to apply. Supporting this line of anylsis the Supreme Court, recently held that “ the reason why privity of estate should not be deemed necessary to support (tacking) in this setting (a boundry dispute involving a consentable line) is, simply, because a prospective purchaser will see the fence or similar marking; given its "obvious presence as apparent boundary," he is therefore put on notice to inquire about its origin, history, and function. Zeglin v. Gahagen, 571 Pa. 321, 812 A.2d 558 (2002).

(D). The doctrine of consentable lines does not require exclusive possession, but that each party claimed the land on his side of the line as his own. Schimp v. Allaman, 442 Pa. Super. 365, 659 A.2d 1032 (1995).

(E) The modern trend and the better rule is that where the visible boundaries have existed for the period set forth in the Statute of Limitations, title will vest in the adverse possessor where there is evidence of unequivocal acts of ownership. In this view it is immaterial that the holder supposed the visible boundary to be correct or, in other words, the fact that the possession was due to inadvertence, ignorance, or mistake, is entirely immaterial. Tamburo v. Miller, 203 Md. 329, 100 A.2d 818, 821 (1953). Cited in Zeglin v. Gahagen, 571 Pa. 321, 812 A.2d 558 (2002).

  1. GENERAL CONSIDERATIONS

(A). A consentable boundary line need not necessarily be a fence, and a boundary line established by survey is sufficient. Niles v. Fall Creek Hunting Club, Inc., 376 Pa. Super. 260, 545 A.2d 926 (1988)(en banc). The boundary line need not be substantial. Jedlicka v. Clemmer, 450 Pa. Super. 647, 677 A.2d 1232 (1996).

(B). When a consentable line is established, the land behind such a line becomes the property of each neighbor, regardless of what the deed specifies. In essence, each neighbor gains marketable title to that land behind the lines, which may not have been theirs under their deeds. Soderberg v. Weisel, 455 Pa. Super. 158, 687 A.2d 839 (1997).

(C). The question of where a boundary line is actually located is a question for the trier of fact. Plott v. Cole, 377 Pa. Super. 585, 547 A.2d 1216 (1988). The question of what constitutes a boundary line is a matter of law. Id.

(D). The establishment of a consentable line is not a conveyance of land within the meaning of the statute of frauds, because no estate is created thereby. Plauchak v. Boling, 439 Pa. Super. 156, 653 A.2d 671 (1995), citing Hagey v. Detweiler, 35 Pa. 409 (1860). Therefore, such a line may be initiated by oral agreement and proved by parol evidence. Id., citing Beals v. Allison, 161 Pa. Super. 125, 54 A.2d 84 (1947).

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