You recall the property law trope that publicly-owned land isn’t generally subject to claims of adverse possession, at least when the government owns the land in its public capacity?
Well, like a lot of things, that rule isn’t ironclad. At least not in Pennsylvania, where the Commonwealth’s Supreme Court (Eastern District) just held, in City of Philadelphia v. Galdo, No. J-46-2019 (Sep. 26, 2019), that Philadelphia was “not immune from a claim of adverse possession” because “the property was not devoted to public use during the twenty-one year prescriptive period.” Slip op. at 1.
The city owns a vacant lot which it acquired decades ago by eminent domain for “transit purposes.” Galdo later purchased the house across the street. The city never developed the property and the transit line was rerouted. Over time the city viewed the lot as surplus property, and “has not performed any maintenance, grass butting, grading, or landscaping.” Slip op. at 3. Predictably, the parcel attracted the usual nuisances: “prostitutes” and “derelicts,” trash, weeds, and the line.
Galdo didn’t appreciate this, and over time he did things like clear the weeds, poured a concrete slab, parked vehicles, and built a fire pit and picnic area. But he didn’t pay taxes on the parcel, nor did he obtain permits for any of the work. Sounds a lot better than the blight of city ownership.
Eventually, the city wanted to sell the parcel. That fell through, but apparently the failed transaction brought Galdo’s improvements to the city’s attention, and after Galdo refused to comply with the city’s notices to remove the improvements, the city sued to eject him from the land. Galdo asserted in a counterclaim that title should be quieted in him, because he had adversely possessed the property for more than the 21 years which the Pennsylvania statute requires. “Galdo contended that he had been in continuous and exclusive possession of the Parcel without the City’s consent or authorization since September of 1989. He further asserted that the Parcel had not constituted a public use since 1976.” Slip op. at 5.
The court tried the case, and ruled against Galdo. The court accepted the city’s claim that it was immune from adverse possession claims (meaning the evidence about Galdo’s uses was irrelevant) on two grounds, both tied to the exercise of eminent domain by which it had acquired the land. First, because the city had acquired the land as an agent of the Commonwealth, for its construction of a highway, it was not subject to adverse possession. Second, the fact the property was acquired for public use by eminent domain meant that it was devoted to public use and therefore also not subject to adverse possession (under Pennsylvania law, property devoted to public use cannot be adversely possessed). Slip op. at 6.
The appeals court disagreed, and concluded that municipalities do not enjoy “total immunity” from adverse possession claims. The court held that although the property may have been originally acquired for public use, that was a different question of whether it had used the property for the public during the prescriptive period. That, predictably, was not the end of it.
The Pennsylvania Supreme Court affirmed, concluding that the city was not immune from Galdo’s claim for adverse possession. The point of adverse possession is to see that land doesn’t lie fallow, and to incentivize owners to make use of it, or risk losing it to those who do. As Howard Mansfield notes, “the quiet citizen must keep out of the way of the exuberantly active one.” And Mr. Galdo, it appears, has been exuberantly active and the city has not. Also known in Playground Law as “you snooze, you lose.” As for the idea that a subject cannot run out the clock against the sovereign king, the court held that Philadelphia is a municipality, and only the Commonwealth is a sovereign.
The exception to the rule that municipalities can have their property adversely possessed is if they are devoting the property to public use. The court agreed with the appeals court which concluded that although the parcel was undoubtedly acquired for public use initially, that public use appears to have “lapsed” when the transit line was rerouted. Slip op. at 17-18. The fact that the city viewed the parcel as surplus meant it was not using it. And, importantly, the city conceded that a public use can lapse or be abandoned. Citing the eminent domain code, the court held that in some circumstances, a condemnor may abandon the public use for which property is taken.
The case turned on the city’s assertion that as long as it continued to hold the property for possible resale, it was using it for the public. Thus, it argued, everything else was not relevant:
On a more global scale, it is the City’s view that once it acquires property fora public use, it can retain that property in perpetuity without being subject to adverse possession claims so long as it does so for the putative purpose of resale, without any obligation to maintain such property and regardless of whether the land continues to function in its dedicated capacity.
Slip op. at 18. The court rejected the argument. The policy of active use of land trumps that, and there’s no authority for the idea that holding property for resale is a public use. Slip op. at 19 (“The reason necessitating the sale of the property is because the public use no longer exists. Absent the public use, a municipality’s holding of abandoned property, here for decades, offers no benefit to the public.”).
If remedying blight can be a public use (see, for example, Berman), then holding property that is or about to become blighted isn’t a public use:
Absent the public use, a municipality’s holding of abandoned property, here for decades, offers no benefit to the public. Under such circumstances, the public is not occupying the property in any way, no tax dollars are being received from the property, and the neighborhoods in which the dormant properties are located risk the threat of becoming blighted. This scenario constitutes the opposite of devoting property to a public use as the indefinite holding of abandoned municipal property is detrimental to those tax payers who own property nearby and to the community at large.
Slip op. at 19.
The court acknowledged that Galdo has a high factual burden (the city doesn’t need to have done all that much in the 21 years to preserve its ownership), but held that if he can meet the burden, the property is his. The court remanded for a trial.
A final thought: might this case be one of be careful what you wish for? If he is successful as acquiring the title to the property from the city, one can see how the city might not just let this go, and that Galdo may have to do something about those unpermitted structures on the land, and start paying property taxes. You know, the usual things that owners of property are subject to. Code compliance can be a very burdensome thing, and the city can exact a lot of retribution for getting burned in this case and on the larger issue.
City of Philadelphia v. Galdo, No. J-46-2019 (Pa. Sep. 26, 2019)
Continue Reading A Different Form Of “Public Use” – City Land Subject To Adverse Possession Claim
