PROPERTY TITLE IN A PAPER STREET

A paper street does not exist, but many can be found particularly on older subdivision plans. This could be a road or alley for which the developer set aside property that never was used for this purpose – it is an unopened street that shows up in recorded plans but, in reality, ends up being used as part of a yard or a wooded area next to your property. Since it does not appear in your deed, the question of actual ownership cannot be ignored because this affects what you can do with this property and who buy or sell it, for example.

The problem of the paper street is one that municipalities, townships, boroughs, and similar governmental bodies have come to recognize during the last 50 years or more, which is why paper streets tend to be found only in older subdivision plans. Most municipalities, for instance, have enacted ordinances regarding the creation of subdivisions that generally prevent the creation of paper streets, but this does not affect ones that already exist.

DRAFTING A SUBDIVISION AND “CREATING” PAPER STREETS

After you check the plan recorded for your subdivision at the Recorder of Deeds or similar county office, you can figure out if you live next to a street that is you never saw before. This was not the intent of the developer, who expected that the street or alley would be used. The paper street started out on paper but was supposed to become a real street. So, one might wonder what went wrong during this process.

The developers simply planned too much – the system of streets in the subdivision included more streets than were needed. You drive on some of the streets every day, and you watch weeds grow on others. The way that is developed usually involved the recording of the subdivision, in which the planned streets were dedicated to the municipality or borough, which would have to accept formally or informally the street as its own.

As set forth in Section 1961 of Title 36 in the Pennsylvania Statutes and enacted in 1889, municipalities and other governing bodies have 21 years to accept the land for the dedicated street after the plan has been recorded. See 36 P.S. §1961. When this is not formally accepted and is not used by the public for the 21-year period, which basically is a statute of limitations, then the local governing body is deemed to have abandoned the property, and a reversion occurs.

WHAT REVERSION OF OWNERSHIP MEANS HERE

One might expect that abandonment returns ownership to the original developer. However, the problem with this is that many developers did not remain in the community so, if they owned the reverted interest, they might not be around to be held accountable for the upkeep of the property that becomes a paper street. As spelled out in Rahn v. Hess, 378 Pa. 264, 269-270 (1954), the purchaser who acquires the property from the developer owns the reversionary interest unless the developer specifically retained that interest.

As a result, trees and other conditions on the paper street become the responsibility of the abutting property owners in the subdivision. With reversion occurring automatically, the abutting owners may not realize that they have this responsibility. In Pennsylvania, property owners whose lots abut a paper street generally own the street to its center line, even though there is no official record of this. Again, this is a principle confirmed in Rahn v. Hess, 378 Pa. 264, 270 (1954).

GOVERNMENTS: VACATE OR ABANDON AN UNWANTED PAPER STREET

Local governments can vacate paper streets before the 21-year period ends – they don’t have to accept the dedicated property and can make this official by adopting an ordinance, for example, in which the street is not accepted and any interest in the land is vacated. The only time that a municipality or borough can’t do this is when the paper street contains utility lines, for example, that it has to maintain and repair. On the other hand, the property owner cannot build a structure on the paper street that obstructs access to municipal water and sewer lines. Meanwhile, the abutting owners remain responsible for the property’s upkeep.

After abandonment, a municipality cannot decide to use the land without getting approval from the abutting owners. This is another indication of who really owns the property, but there still is nothing recorded, which limits possible uses by the actual owner.

PRIVATE EASEMENTS AND PROPERTY OWNERS IN A SUBDIVISION

Another limitation on the abutting owners is that all owners of lots within the subdivision have an easement that allows them to use the paper street as a right of way. Usually, this is of no consequence because the street never was laid out so there is no reason to use it when traveling by vehicle or foot through the subdivision. Additionally, as explained in Rahn v. Hess, 378 Pa. 264, 271 (1954), the Pennsylvania Supreme Court stated that this is a private contractual right that does not go away after a period of time.

Abutting owners who want complete ownership of their part of a paper street would have to get all other lot owners on the subdivision to sign waivers in which they give up their rights of way over the property. As explained in Estojak v. Mazsa, 522 Pa. 353 (1989), there are times that courts in Pennsylvania have recognized a doctrine similar to adverse possession has been recognized as a means of extinguishing easements when access to the right-of-way is blocked for 21 years, but attempts to get private agreements or to obtain court orders are time consuming and expensive. This has a role in title that an abutting owner may try to record, as we will discuss below.

BEGINNING THE PROCESS TO RECORD YOUR REVERSIONARY INTEREST

How would you take action to turn your reversionary interest into a recorded interest? Even if more than 21 years have passed since the original dedication was made, leaving the paper street abandoned by the local government, you would be wise to contact the local body in charge of zoning and related matters in order to find out if there will be any problems with moving toward having a deed drafted and recorded.

In these situations, there often is not much opposition, but you want to cooperate and attempt to gain cooperation in return. It could help to get an official declaration that the government has abandoned any interest in the property – this really isn’t required when the Statute of Limitations has expired and no interest involving utilities remains, though.

Then, you should approach all owners with property abutting the part of the street that you are claiming. Their consents are helpful, especially if the municipality is looking to have a petition to vacate presented, when necessary. At this point, you should be in position to move forward with the final steps.

Perhaps, the strongest factor motivating the owner of at least part of a paper street to obtain title that is recorded in the appropriate government office is to have the ability to do something with the property. While municipalities and townships that have abandoned these streets do not have a role in determining ownership rights in paper streets that they have abandoned, the owner may need a permit to improve or repair a driveway that extends onto what was a paper street. Having record title makes this easier to accomplish.

SECTION 1961 OF TITLE 36: THE STATUTE OF LIMITATIONS

It should be noted that an unopened street created before May 9, 1889 is not subject to 36 P.S. §1961 and would be handled differently than what is being discussed so we are looking at subdivisions laid out after that date. We are examining papers streets subject to §1961 since these are more commonly encountered and also make a somewhat complex issue somewhat more understandable. Under §1961, municipalities had to accept and open the dedicated street within 21 years of its creation as part of the recorded subdivision.

Once the governmental body acknowledges that sufficient time has passed for it to have abandoned any potential interest in the property, then an abutting owner can consider the remaining actions required for a deed to be recorded since ownership reverts to the abutting owners, generally to the center line of the street, under Pennsylvania law.

While title goes to the owner, there is no record of this, which is the purpose of the deed. You could ask the municipality to pass an ordinance officially abandoning the property, but this would not be the first choice – after all, doing this is bound to be noticed by other lot owners in the subdivision, making the easement issue more obvious. The preferable way does not extinguish the private easements but does not call undue attention to them, either.

ESTABLISHING THE CENTER LINE

The owners of the abutting properties can work out an agreement to handle the issue. The important step involves having the property surveyed according to the new property line, which can be at the center of the unopened street or a different line to which the parties consent. Zeglin v. Gahagen, 812 A.2d 558 (Pa. 2002), provides a good overview of the Doctrine of Consentable Lines, which can have some similarities to adverse possession although they are not identical.

GETTING A NEW SURVEY TO DRAFT A NEW DEED

The survey provides a legal description that is used in a new deed. Because the property add to the old deed actually is part of the original lot, the drafter of the new deed has the owner as the grantor and grantee, with the end result that the property of an abutting owner is combined into one parcel in a deed that then is recorded.

Due to the nature of this deed, you need to make sure that specific language is included. First, at the end of the legal description (also known as the recital), the deed would contain wording explaining how ownership reverted after 21 years based of 36 P.S. §1961 by operation of law and providing a corrected legal description of the property that uses the statute as the basis.

After the survey establishes the boundaries for your property that includes what was formerly the paper street, you would have a new deed that is drafted so that the title to all of the property owned by you can be recorded. This would give you formal title that would be found in a title search. The type of deed is important; with the other owners in the subdivision possessing a right of way over what has been a paper street, you only convey whatever interest you possess the land that you are conveying to yourself at this point. The entire interest in the property cannot be transferred due to the easements.

FINAL STEPS AND CONSIDERATIONS

Unless you have taken whatever action is necessary to extinguish the easements, this outcome is the best that you can obtain. You end up with the property interest that you purchased in the subdivision originally as well as the property interest that reverted to you when the governmental body abandoned the property comprising the paper street, generally after the 21-year Statute of Limitations expired after the subdivision developer dedicated this land to the governing body, such as a municipality or township, which did not use it for that purpose.