Daily Development for
Tuesday, June 4, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

TITLE; ABANDONMENT: An owner with perfect title in fee to real estate can not abandon it. Pocono Springs Civic Association Inc. v. MacKenzie, 667 A.2d 233 (Pa. Super. 1995).

Landowners acquired title by deed to a lot in a subdivision subject to covenants, one of which provided for the assessment of fees by the homeowners' association. Eight years later the owners were unable to sell the lot because it was not suitable for an on-site sewage system. Thereafter they made no further use of the lot and attempted to sell the lot to the association. The association had no interest in purchasing. The owners tried to give the lot to the association, but it again refused. Owners ceased paying real estate taxes on the lot; refused to accept any mail regarding the lot; and, eventually, sent a notarized statement to "all interested parties" expressing their intent to abandon their title. The lot was twice put up for sale for delinquent taxes but was not sold.

The association sued owners personally for the accumulated assessment fees. In defense, the he owners asserted that all of these actions demonstrated that they have manifested their intent to abandon title, an intent which precluded summary judgment in this case.

Held: summary judgment affirmed.

After reviewing Pennsylvania case law on the doctrine of abandonment, the court concluded that the doctrine is limited to personal property and some interests in real property less are than complete fee title (e.g., an easement). The court stated, "[N]o authority exists in Pennsylvania that allows for the abandonment of real property when owned in fee simple with perfect title." Since the owners could not abandon their title, they remained liable for the association fees.

Comment: This is "hornbook law" learned early in Property class, but we rarely see a case holding so squarely. The case should be useful for the next round of casebook authors.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233.

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