Renewing Respect for Record Notice: Cleaning Up the Pennsylvania Title Wash

To understand the title wash concept, one must first understand the underlying laws that brought it into existence. Accordingly, this Article will begin by providing a brief overview of Pennsylvania’s historical treatment of land for taxation purposes, as well as several important early 1800s state legislative acts, before discussing how these two subjects work together to “wash” a title. This discussion will also include the subsequent changes to the laws that effectively abrogated the title wash for more recent titles with less extensive chains of ownership. Next, this Article will examine the Pennsylvania and related federal courts’ treatment of the title wash and its underlying principles over the past 125 years. As will be shown, until the 2014 Herder Spring decision, for more than 100 years the courts largely had been trending away from title wash principles and moving towards a more modern property and real estate tax law perspective. Finally, a balanced solution to the problem will be proposed that advocates for a rule to allow title holders of previously severed and properly recorded subsurface mineral rights at least an opportunity to defend and retain their property rights in the face of a title wash claim. The proposed rule will begin with a rebuttable presumption in favor of the validity of the washed title containing both the surface and subsurface estates. This presumption then can be rebutted by affirmative evidence showing: (1) a separate assessment of the subsurface mineral estate, taxes paid on the subsurface mineral estate, or proof that the assessment used for the tax sale specified separate estates; or (2) a valid, properly recorded severance of the surface and subsurface estates prior to the date of the assessment utilized at the tax sale. This proposed rule would operate prospectively rather than retroactively. Thus, if adopted, it would apply only to pending and future title controversies, so as not to require re-litigation of previously settled title disputes