Can Abandonment of Property Be Analysed by Seperating the Elements of Intent to Abandon and Actual Abandonment ?
In Latrobe Speedway, 553 Pa. 583, 720 A.2d 127 (1998), the Pennsylvania Supreme Court announced the adoption of an analysis of abandonment:
Failure to use the property for a designated time provided under a discontinuance provision is evidence of the intention to abandon.
The burden of persuasion then rests with the party challenging the claim of abandonment.
If evidence of a contrary intent is introduced, the presumption is rebutted and the burden of persuasion shifts back to the party claiming abandonment.
What is critical is that the intention to abandon is only one element of the burden of proof on the party asserting abandonment.
The second element of the burden of proof is actual abandonment of the use for the prescribed period.
This is separate from the element of intent. Latrobe Speedway, 553 Pa. at 592, 720 A.2d at 132.