Arthur E. Selnick Associates, Inc. v. Howard County Maryland

HOTTEN, J. On July 17, 2008, appellant, Arthur E. Selnick Associates, Inc. (“Selnick”), filed a Complaint seeking declaratory, injunctive, and monetary relief against Howard County, Maryland in the Circuit Court for Howard County. After a lengthy procedural history, including removal to and remand from federal court and the joinder of numerous defendants, the circuit court ruled that the passage of time had converted a temporary easement into a perpetual easement pursuant to the thirty-year limit on possibilities of reverter under Md.Code (2010), § 6-101 of the Real Property Article (“R.P.”). 1 Additionally, the circuit court ruled that it would not consider parol evidence in its review of the temporary easement or an ⁶⁷⁵ agreement between Selniek and the State Highway Administration (“SHA”). Accordingly, the circuit court granted the defendants’ motions to dismiss and motions for summary judgment, holding that the temporary easement had not terminated and reverted to Selniek. Instead, the easement had become a permanent easement as of September 6, 2004, thirty years from the grant of the temporary easement.

The circuit court also held that Howard County had not constructively condemned the property over which the easement ran because the easement had not reverted to Selniek. Selniek timely appealed, presenting the following questions: 1. Did the Circuit Court err in ruling that Md. Real Prop.Code Ann. § 6-101 entitled, “Possibility of Reverter,” applied to convert the Temporary Easement into a Perpetual Easement? 2. Did the Circuit Court err in excluding consideration of parol evidence from the construction of the deed granting the Temporary Easement and Option Agreement between Selniek and the SHA? 3.

Did the Circuit Court err in determining that no unconstitutional taking of Selnick’s property occurred by the actions of Howard County? For the reasons that follow, we answer the first question in the affirmative and second and third questions in the negative. Thus, we reverse the judgment • of the circuit court and remand for an entry of a declaratory judgment that R.P. § 6-101 does not apply to easements. FACTUAL BACKGROUND As this case was decided on summary judgment, we discern the following based on the pleadings.

Kaiser Aetna developed the Route 100 Business Park (“Business Park”) in the early 1970s in Elkridge, Maryland. On November 12, 1972, Kaiser Aetna recorded a subdivision plat that laid out the design of the Business Park and included a note that stated: ⁶⁷⁶ The area bounded by (1), (4), (15), [and] (19) is a revertible easement and a temporary entrance only. The ultimate permanent entrance will be at another location to be designated by the State Highway Administration. After the permanent entrance is built[,] the easement for access through the temporary easement will terminate and be void.

On September 6, 1974, Kaiser Aetna deeded land for the planned roadways in the Business Park to Howard County in fee simple. Kaiser Aetna, however, only deeded a temporary easement to Howard County over the portion of land that was to become part of Amberton Drive and serve as an entrance to the Business Park. The entrance was to be built as part of Howard County’s Route 100 Road Extension Project. An exhibit to the deed contained a legal description of the land over which the temporary easement was to run, and the deed itself stated: In addition to the foregoing, [Kaiser Aetna] does hereby grant to [Howard County] a revertible easement for a public road for use as a temporary entrance only, in, over and through the following described parcel, it being understood and agreed that upon completion of all improvement, grading and paving by the State Highway Administration of a permanent entrance to said Route One Hundred Business Park at the location described in Exhibit I hereto, and the availability thereof for use by the owners, occupants and tenants of the Route One Hundred Business Park and their respective employees, customers and invitees, the said revertible easement hereby granted will automatically terminate and be and become null and void and all rights therein shall automatically then revert to [Kaiser Aetna], its successors and assigns: Temporary entranceway, 100 feet wide and approximately 453 feet long, leading from U.S. Route 1 to Amberton Drive, as shown on a Plat of Subdivision of Route One Hundred Business Park recorded among the Land Records of Howard County, Maryland on November 24,1972 in Plat Book 24, folio 14, and more particularly described in Exhibit J hereto. ⁶⁷⁷ On September 30, 1975, Kaiser Aetna entered into an Option Agreement with the SHA, whereby SHA: propose[d] to lay out, open, establish, construct, extend, widen, straighten, grade and improve as a part of the State Roads System of Maryland, a highway and/or bridge, together with the appurtenances thereto belonging, shown on the plans designated as Contract No. HO 362-3-771 for the improvement to Md. Rte. 100 in Howard County.

The agreement went on to state that: it is hereby understood and agreed that the [SHA] will do the following: Amberton Drive now being used by the [Business Park] as its main access street into U.S. Route 1 is a temporary facility and will be replaced at the time of the improvement to this project with a new constructed tie-in at Hunting Mills Drive projected to U.S. Route 1 at the expense of the [SHA] and will replace in kind. (A dual within a 100’ R/W). A plat recorded on December 7, 1983 in the Land Records for Howard County that includes the parcel now at issue includes the following language: * Note: In accordance with understanding set forth in a letter from Kaiser Aetna to Mr. D.H. Fisher, State Highway Administration, dated June 28, 1972[,] the area bounded by the points 1 to 7, to 23, to 19, to 1, is a revertible easement and a temporary entrance only. The ultimate permanent entrance will be at another location to be designated by the State Highway Administration.

After the permanent entrance is built the easement for access through the temporary entrance will terminate and be void. Howard County constructed a four lane road, known as Amberton Drive, with a median and traffic signal over the temporary easement, and the public has used the road to access the Business Park since the county completed construction. On December 28, 1983, Selnick purchased, in fee simple absolute, a lot in the Business Park. The purchase included the land comprising the temporary easement, and the deed ⁶⁷⁸ stated that the land was “[s]ubject to part of a Revertible Easement and a Temporary Entrance, as shown on [the] plat.” The plat reiterated the “Note” from the December 7, 1983 plat.

On or about November 14, 1989, based on prior conversations, the local right of way agent for SHA, William Ravenscroft, informed Selnick that SHA was in the process of securing the right of way for a new entrance road into the Business Park. Mr. Ravenscroft informed Selnick that a new entrance would be constructed when a ramp leading from eastbound Route 100 onto U.S. Route 1 northbound was completed. The new entrance would make the temporary easement unnecessary, and SHA would provide an aesthetically pleasing permanent barrier to close the road over the temporary easement. On November 27, 1989, based on the discussions, Selnick granted SHA an option to purchase a portion of its property in conjunction with “improvements to Maryland Route 100 from 1-95 to east of Maryland Route 713.” The Option Agreement was later replaced by an almost identical agreement dated June 12, 1990; sections M and Ml of both agreements stated: (M) It is hereby understood and agreed that [SHA] will do the following: (Ml) At the time Amberton Drive is closed SHA will provide a well defined break in the roadway to prevent all traffic from entry from the ramp.

The Route 100 Extension Project ended in 1998, but due to expenditure of funds, SHA did not construct a new entrance into the Business Park. SHA deferred construction “until traffic warrants closure/relocation of U.S. 1 Amberton Drive intersection.” Selnick was advised of the deferral. Since Selnick acquired its property in the Business Park in 1983, traffic over the temporary easement increased significantly. A 350 unit condominium and townhouse project used the temporary easement as the sole entrance and exit.

Selnick noticed the increased traffic across the temporary easement and claimed to have lost a valuable tenant in its building ⁶⁷⁹ as a result of a lack of parking. Selnick then inquired as to Howard County’s plans to construct a new entrance to the Business Park and close the road over the temporary easement. In January 2008, Howard County advised Selnick that it was going to fund the design, acquisition, and construction of a new entrance to the Business Park, which would create a second point of access, triggering the termination of the temporary easement. Howard County, however, advised Selnick that it planned to continue to maintain the road over the temporary easement.

In response, Selnick sought compensation from Howard County for condemning his property rights to the land covered by the temporary easement, which Howard County denied. Selnick filed a Complaint in the Circuit Court for Howard County, seeking a declaration that Howard County constructively condemned the temporary easement or, in the alternative, that Howard County was no longer entitled to the temporary easement. Howard County filed a motion to dismiss, arguing, inter alia, that Selnick had failed to join as necessary defendants other property owners in the Business Park because their right to use the temporary easement as means of access could be affected by the outcome of the case. The circuit court granted the motion with leave to amend the complaint.

In response to the circuit court’s ruling, Selnick filed an Amended Complaint, joining all ninety-one property owners who used Amberton Drive for access to their properties as necessary defendants. One such defendant was the United States Postal Service (“USPS”), who removed the case to the United States District Court for the District of Maryland. USPS then filed a motion to dismiss itself as a defendant under the doctrine of sovereign immunity, which was granted. The District Court then remanded the case to the circuit court because the basis of federal jurisdiction no longer existed, including in its remand an instruction that the case should not ⁶⁸⁰ be dismissed for a failure to join all parties, even though USPS was no longer a defendant.

With the case back in the circuit court, Selnick filed a Second Amended Complaint, which reiterated the allegations against Howard County and added counts against SHA for breach of contract and specific performance based on the 1990 Option Agreement. SHA filed a motion for summary judgment, and Howard County filed a motion to dismiss or for summary judgment, which several property owners incorporated in their respective motions to dismiss. Selnick filed a motion for partial summary judgment, in which it argued that Howard County had committed a de facto or constructive condemnation of the temporary easement when it planned to maintain the original access in addition to the planned second access to the Business Park. After considering all the pending motions and argument, the circuit court concluded that the easement still existed because the triggering event—the construction of a new access road to the Business Park by SHA—had not occurred.

The court also ruled that the passage of time had converted the temporary easement into a perpetual easement pursuant to the thirty-year limit on possibilities of reverter under R.P. § 6-101. The circuit court stated that it would not consider parol evidence to construe the grant of the temporary easement or the terms of the Option Agreement with SHA because the triggering events were clear and had not taken place. Finally, the court held that there was no taking and that there could be no claim for inverse condemnation because the reversionary interest had not yet reverted. STANDARD OF REVIEW Although the defendants filed both motions to dismiss and motions for summary judgment, the circuit court decided that the issues could be “resolved by way of a motion for summary judgment.” When the underlying facts are uncontested, as was the case here, the role of an appellate court is substantially similar whether reviewing the grant of summary ⁶⁸¹ judgment or the grant of a motion to dismiss.

See Napata v. Univ. of Md. Med. Sys. Corp., 417 Md. 724, 732 (2011). In both instances, the standard is whether the trial court was “legally correct.” Compare Eng’g Mgmt.

Servs. v. Md. State Highway Admin., 375 Md. 211, 229, 825 A.2d 966 (2003) (“The standard for appellate review of a summary judgment is whether it is ‘legally correct.’ ”) with Sprenger v. Pub. Serv. Comm’n, 400 Md. 1, 21 , 926 A.2d 238 (2007) (“When reviewing the grant of a motion to dismiss, an appellate court is concerned with determining whether the trial court was legally correct.”). DISCUSSION I. TEMPORARY EASEMENT A. Terms of the Grant First, we discern that the deed granting the easement was not ambiguous.

In Gunby v. Olde Severna Park Improvement Ass’n, 174 Md.App. 189, 238 , 921 A.2d 292 (2007) (citing Koch v. Strathmeyer, 357 Md. 193, 742 A.2d 946 (1999)), we emphasized: When interpreting a deed, courts often look to surrounding documentation to aid in understanding a grantor’s intent if a provision is ambiguous, even in cases of summary judgment. See Kobrine, L.L.C., et al. v. Metzger, 380 Md. 620 , 846 A.2d 403 (2004) (reviewing award of summary judgment and analyzing various plats, deeds and documents, both with indirect chain of title and similar deeds by original subdivision developer in order to determine intent of grantor, in case where lot owner and home owners association claimed that plat legend indicated lot had been retained for beneficial use of all homeowners); cf. Calomiris v. Woods, 353 Md. 425, 727 A.2d 358 (1999) (holding that lower court erred in awarding summary judgment based on extrinsic evidence to interpret release provision in mortgage contract where the provision was unambiguous). In Calomiris , the Court of Appeals, in reviewing an award of summary judgment, noted that an appellate court reviews de novo a trial court’s ⁶⁸² finding of ambiguity, but if it agrees with that finding [of ambiguity] it next “will apply a clearly erroneous standard to the trial court’s assessment of the construction of the contract in light of the parol evidence received.” Id. at 435 [ 727 A.2d 358 ]. Selnick argues that the lack of an end date conflicts with the characterization as “temporary,” and thus requires the admission of parol evidence to incorporate a “reasonable time” requirement in the deed.

Specifically, Selnick posits that without parol evidence, it is impossible to determine when or whether Howard County or SHA would ever construct a new permanent entrance to the Business Park. Selnick contends that if the circuit court’s decision was correct, it “would never have been able to show its entitlement to the return of its property and the Temporary Easement, and certainly not within the 30 year life span for Possibilities of Reverter” in R.P. § 6-101. Selnick contends that the circuit court erred because its construction of the 1974 deed is directly at odds with the description of the easement as “temporary.” Prehminarily, we note that the rules that govern contracts between individuals and private corporations also govern the construction of contracts between individuals and governmental entities. Anne Arundel Cnty. v. Crofton Corp., 286 Md. 666, 673 , 410 A.2d 228 (1980). “Under the objective law of contracts, a court, in construing an agreement, must first determine from the language of the agreement itself, what a reasonable person in the position of the parties would have meant at the time it was effectuated.” Id.

(citing Benson v. Bd. of Educ. of Montgomery Cnty., 280 Md. 338, 349 , 373 A.2d 926 (1977); Slice v. Carozza Properties, Inc., 215 Md. 357, 368 , 137 A.2d 687 (1958); McKeever v. Washington Heights Realty Corp., 183 Md. 216, 220 , 37 A.2d 305 (1944)). Language in a contract is ambiguous if it is susceptible to more than one meaning to a reasonably prudent person. Calomiris v. Woods, 353 Md. 425, 435 , 727 A.2d 358 (1999). “In interpreting a deed whose language is clear and unambiguous on its face, the plain meaning of the words used shall ⁶⁸³ govern without the assistance of extrinsic evidence.” Drolsum v. Horne, 114 Md.App. 704, 709 , 691 A.2d 742 (1997). The deed granted an easement to Howard County until such time as there was a new access road to the Business Park.

While the parties to the deed certainly could have included a duration limitation, they did not. R.P. § 4-105 states that “[ujnless a contrary intention appears by express terms or is necessarily implied, ... every grant or reservation of an easement passes or reserves an easement in perpetuity.” Here, the grant of the easement to Howard County was to become specifically “null and void” when a new entrance to the Business Park was constructed. Plainly, if this condition did not occur, the easement would continue. Selnick directs our attention to Anne Arundel County v. Crofton Corp., 286 Md. 666 , 410 A.2d 228 (1980).

In that case, the Court of Appeals addressed the duration of a contract between Anne Arundel County and a private land developer. Id. at 672-76 , 410 A.2d 228 . The contract did not expressly provide for a specific termination date. Id. at 673 , 410 A.2d 228 .

The court noted that the facilities that were the subject of the contract were to be transferred to the county within sixty-six months of the date of the contract. Id. at 673-74 , 410 A.2d 228 . The contract also referenced contractual payments ending when the transfer occurred, suggesting that the contract “was to terminate upon the transfer of the facilities, but not later than [sixty-six months from the date of the contract].” Id. at 674 , 410 A.2d 228 . Other contract provisions, however, indicated that it was to terminate within the time reasonably necessary to fully develop the entire tract.

Id. In light of the ambiguous termination date, the trial court looked to extrinsic evidence, which showed that the parties to the contract contemplated the agreement remaining in effect until the large property was fully developed. Id. Witnesses estimated that a realistic time estimate was fifteen to twenty years.

Id. at 674-75 , 410 A.2d 228 . There was also evidence that the parties continued to perform under the terms of the contract for almost three and a half years after sixty-six ⁶⁸⁴ months from the date of the contract. Id. at 675 , 410 A.2d 228 . The Court of Appeals held that the sum of the evidence was “more than sufficient to support the trial court’s finding that, at the time the ... [contract was made, the parties intended that it remain in effect for 20 years, a period of time reasonably necessary for full development of the 1,257 acres[,]” and “[t]hat finding was not clearly erroneous.” Id.

Selnick also relies on Kiley v. First National Bank, 102 Md.App. 317 , 649 A.2d 1145 (1994). There, bank customers alleged that the bank, which obtained the customers’ joint account as a result of its acquisition of all checking and savings accounts previously held by another bank, breached a contract by changing the terms of the customers’ account. Id. at 332-40 , 649 A.2d 1145 . We discerned that even if there was a contract between the acquired bank and its customers, the putative contract was silent as to its duration. “Depending upon the intention of the parties, a contract, silent as to duration, may contemplate perpetual performance, performance for a reasonable time, or performance until the parties decide otherwise.” Id. at 335 , 649 A.2d 1145 .

However, “unless expressly provided, promises are not interpreted to require perpetual performance.” Id. (citing Williston on Contracts, § 4:19, at 431 (4th ed.1990); Restatement (Second) Contracts, § 33, Comment d, at 94 (1981)). Instead, courts usually enforce “ ‘some period short of infinity1 ” when interpreting imprecise contracts. Id.

(quoting Williston, § 4:19, at 434). We stated that courts ordinarily interpret a contract with an imprecise temporal term to indicate that the parties intended for the performance to occur within a reasonable time or to last for a reasonable time. Id. Likewise, if the parties contemplated a continuing performance, but did not specify a time provision in the contract, the contract mandates performance for a reasonable time and is usually terminable by either party at any time.

Id. (citing Williston, § 4:19, at 442; Restatement (Second) Contracts, § 33). Applying these principles to the issues in Kiley , we discerned that the bank continued to comply with the previous bank’s terms for the customers’ account for over five years. ⁶⁸⁵ Id. at 336 , 649 A.2d 1145 . We deemed such compliance to be “sensible and fair[,]” when viewed as “what a reasonable person in the position of the parties would have thought [the putative contract] meant.” Id. at 335 , 649 A.2d 1145 (citation omitted).

Finally, Selnick points to Gregg Neck Yacht Club, Inc. v. County Commissioners of Kent County, 137 Md.App. 732, 759 , 769 A.2d 982 (2001), for the proposition that “[i]n construing the language of a deed, the basic principles of contract interpretation apply.” (Citations omitted). “ ‘These principles require consideration of the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution.’ ” Id. (quoting Chevy Chase Land Co. v. United States, 355 Md. 110, 123 , 733 A.2d 1055 (1999)) (other citations omitted). Extrinsic evidence may be admissible if the language of the grant is ambiguous, meaning that “ ‘if, when read by a reasonably prudent person, it is susceptible of more than one meaning.’ ” Id. at 760, 769 A.2d 982 (quoting Calomiris, 353 Md. at 436 , 727 A.2d 358 ). Selnick urges us to examine these cases and conclude that the 1974 deed, which conveyed “a revertible easement for a public road for use as a temporary easement only,” is ambiguous.

Selnick posits: One may read the 1974 Deed as intending to be temporary in nature in the sense of not being perpetual. Or, one may read it as being temporary in the sense of the ordinary dictionary use of the term.[ 2 ] And, one may read the term in conjunction with the facts and circumstances surrounding its use and decide that the term as used in the 1974 Deed was intended to mean that the easement would last as long as the construction project within which the new entrance road was intended in 1974 to be constructed. The only possible use of the word “temporary” that must be excluded is the one accepted by the trial court—namely, that “temporary” may mean permanent or indefinite. ⁶⁸⁶ “The determination of ambiguity is a question of law, subject to de novo review.” Gregg Neck Yacht Club, 137 Md.App. at 760 , 769 A.2d 982 (citing Auction & Estate Representatives, Inc. v. Ashton, 354 Md. 333, 341 , 731 A.2d 441 (1999)). When “ ‘interpreting a deed whose language is clear and unambiguous on its face, the plain meaning of the words used shall govern without the assistance of extrinsic evidence.’ ” Id. at 759, 769 A.2d 982 (quoting Drolsum v. Home, 114 Md.App. 704, 709 , 691 A.2d 742 (1997)).

In Shallow Run Limited Partnership v. SHA, 113 Md.App. 156, 167 , 686 A.2d 1113 (1996), we addressed a grant of an easement for a temporary road to landlocked parcels. The conveyance provided that the easement would “be extinguished at the end of two (2) years or at such time as physical and legal access becomes available through [a certain parcel] ... whichever shall occur last.” Id. at 167, 686 A.2d 1113 (emphasis added). We held that the grant was “not vague and uncertain.” Id. We noted that the precise location of the easement could vary, but that the parties “knew that to be the case” when they entered the agreement.

Id. Nevertheless, it was “certain” that the easement would exist at a to be determined location, and that the easement would last for two years or until another access became available, whichever occurred later. Id. at 167-68 , 686 A.2d 1113 . Though extrinsic evidence was not an issue in that case, our determination certainly leads to the conclusion that parol evidence would have been unnecessary and, thus, inadmissible.

Here, in the context of the deed, we discern that “temporary” was not ambiguous, as it meant that the easement would last until a new access road was built. We believe this definition is consistent with Selnick’s chosen “ordinary dictionary” definition of “temporary” as “lasting or meant to last only for a limited period of time.” As such, we agree with the circuit court that extrinsic, or parol, evidence was not needed to clarify any ambiguity, so admission would have been improper. ⁶⁸⁷ B. R.P. § 6-101 and Easements On September 6, 1974, Selnick’s predecessor in title, Kaiser Aetna, granted a “revertible easement” for a “temporary entranceway” to Howard County that “will automatically terminate and be and become null and void and all rights therein shall automatically then revert to [Kaiser Aetna], its successors and assigns” when SHA constructed another entrance to the Business Park. According to the circuit court, because the triggering event—SHA constructing a new entrance to the Business Park—did not occur within thirty years, the easement became a permanent easement as of September 6, 2004 under R.P. § 6-101 and its thirty-year limit on possibilities of reverter and rights of entry. Selnick, as the current owner of the servient estate to the temporary easement, contends that the conveyance created a temporary easement alone, with the fee simple estate remaining in the grantor.

As such, Selnick argues that the circuit court incorrectly applied R.P. § 6-101 to the easement. Howard County and other appellees counter that we should uphold the circuit court’s decision because Kaiser Aetna granted a revertible easement, which, like a possibility of reverter in a fee simple determinable interest, is subject to R.P. § 6-101 and its thirty-year limit on revertible interests in land. At the onset of our examination, it is worth noting that if R.P. § 6-101 applies to easements, the code section would also apply to the deed, even though not expressly referenced in the deed. See John Deere Constr. & Forestry Co. v. Reliable Tractor, Inc., 406 Md. 139, 146 , 957 A.2d 595 (2008) (“It is well-established in Maryland that ‘laws subsisting at the time of the making of a contract enter into and form a part thereof as if expressly referred to or incorporated in its terms[.]’ ”) (citations omitted).

We agree with Selnick that the grant of the easement at issue did not convey an estate in fee simple to Howard County, but rather granted an easement across the land owned by Kaiser Aetna in fee simple. Our analysis does not end there, however, because a Maryland court has not yet addressed whether R.P. § 6-101 applies to easements. ⁶⁸⁸ Selnick contends that the language of the statute, which expressly applies to possibilities of reverter and rights of entry, does not apply to easements, temporary or otherwise. Selnick points to the original version of the statute, which explicitly stated that it applied to restrictions on “a fee simple estate in land.” In other words, Selnick asserts that the circuit court erred as a matter of law by applying R.P. § 6-101 to a grant by Kaiser Aetna of an easement because R.P. § 6-101 applies to fee simple determinable estates and fee simple subject to condition subsequent estates. Here, the grantor retained a fee simple estate, subject to an easement, and later deeded the estate in fee simple to Selnick, subject to the easement.

Selnick also relies on several cases to support its position that the circuit court incorrectly applied the law to this situation. The cited cases define a possibility of reverter, and Selnick argues that for R.P. § 6-101 to apply, there must be a fee simple determinable estate. Finally, Selnick argues that the purpose of the statute was to limit the temporal longevity of a condition subsequent and to increase the alien-ability and marketability of land, similar to the purpose of the oft-dreaded rule against perpetuities. 3 Appellees counter that Selnick’s argument is a misinterpretation of the law that contradicts the thoughtful interpretations of other courts across the country and common sense in light of the public policy behind R.P. § 6-101. While Maryland courts have not had the opportunity to address whether possibilities of reverter and rights of entry apply to easements in addition to fee simple estates, other courts have concluded that they do.

In its brief, Appellee NVR, Inc. (“NVR”) directs our attention to Jon Bruce’s and James Ely’s Law of Easements and Licenses in Land, a treatise that Maryland ⁶⁸⁹ courts have recently cited with approval. See, e.g., Potomac Elec. Power Co. v. Classic Cmty. Corp., 382 Md. 581 , 590 n. 6, 856 A.2d 660 (2004) (quoting Bruce & Ely, The Law of Easements and Licenses in Land § 11:6 (“‘Upon revocation of a license, the licensee is not required to remove improvements made during the term of the license.’ ”)); see also Kobrine, L.L. C. v. Metzger, 380 Md. 620, 642 , 846 A.2d 403 (2004) (citing Bruce & Ely, The Law of Easements and Licenses in Land § 8:34).

In their treatise, Bruce and Ely explain that “[a] defeasible easement may be structured in such a way that the easement either (1) ends automatically upon the happening of the stated event, in which case it is a determinable easement, or (2) is subject to termination by an affirmative act of the servient estate owner whenever the specified event occurs, in which case it is an easement subject to a condition subsequent.” Bruce & Ely, The Law of Easements and Licenses in Land § 10:3 (footnotes omitted). A defeasible easement may potentially have perpetual duration if the stated event or condition subsequent does not occur. See id. NVR also relies on Diaz v. Home Federal Savings and Loan Association of Elgin, 337 Ill.App.3d 722 , 272 Ill.Dec. 199 , 786 N.E.2d 1033 (2002).

In that case, the Second District Appellate Court of Illinois interpreted a grant to a railroad company that stated: Provided however that if the said railroad shall not be constructed over and through said premises within two years or if the said Galena and Chicago Union Railroad Company or their assigns shall at any time hereafter cease permanently to use same railroad to be constructed and the same shall be abandoned or the route thereof changed so as to not be continued over said premises then and in that case the said land hereby granted shall revert to the said grantor his heirs or assigns. Id., 272 Ill.Dec. 199 , 786 N.E.2d at 1042 . That court discerned that the deed granted an easement, rather than an estate in fee simple, and that the terms of the deed expressly set forth when the easement would terminate—after two years if the ⁶⁹⁰ railroad was not built or, if constructed, at an undetermined time when the railroad company no longer used the land. Id., 272 Ill.Dec. 199 , 786 N.E.2d at 1042-43 .

The court recognized that “[wjhile possibilities of reverter often follow a fee interest ..., they may follow other interests as well.” Id., 272 Ill.Dec. 199 , 786 N.E.2d at 1042 (citations omitted). Furthermore, the court stated that “[ejasements may be held subject to future interests such as possibilities of reverter and rights of entry,” so creating an easement subject to a possibility of reverter or right of entry “runs afoul of no rule of law.” Id. (citing Abrams v. Royse, 211 Ill.App.3d 283 , 155 Ill.Dec. 718 , 569 N.E.2d 1329, 1331 (1991); City of Urbana v. Solo Cup Co., 66 Ill.App.3d 45 , 22 Ill.Dec. 786 , 383 N.E.2d 262, 263 (1978)). The circuit court found that the easement over Selnick’s estate was a determinable easement with a possibihty of reverter.

The possibüity of reverter would be triggered by SHA constructing a second access to the Business Park. According to Bruce and Ely, such determinable easements are “commonly used to provide temporary access to a dominant estate pending the completion of construction work on another access route.” Bruce & Ely, The Law of Easements and Licenses in Land, § 10:3 (citing Dotson v. Wolfe, 391 So.2d 757, 758-59 (Fla.Dist.Ct.App. 5th Dist.1980) (access easement to endure “for so long as other suitable way of egress and ingress is not available”)); accord Jackson County v. Hall, 558 S.W.2d 791, 792 (Mo.Ct.App.1977) (easement that “shall terminate if and when the two bridges located over the ... right-of-way ... are repaired, improved or replaced so as to accommodate wide and heavy loads”). Apparently, based on the authority cited by appellees, the circuit court was convinced to apply R.P. § 6-101 to the easement at issue in this case. We, however, are not so persuaded.

A comparison of R.P. § 6-101 to its predecessor, Md.Code (1957, 1968 RepLVol., 1969 Cum.Supp.) Article 21, § 143 (“ § 143”) is appropriate. As mentioned, R.P. § 6-101, entitled “Thirty-year limit on possibilities of reverter and rights of entry created on or after July 1,1969,” states: ⁶⁹¹ (b) Section effective on July 1, 1969.—This section is effective on July 1, 1969, with respect to (1) inter vivos instruments taking effect on or after that date, (2) wills of persons who die on or after that date, and (3) appointments by inter vivos instruments or wills made on or after that date under powers created before that date. (c) Possibility or condition not valid after specified time.—If the specified contingency of a special limitation creating a possibility of reverter or of a condition subsequent creating a right of entry for condition broken does not occur within 30 years of the effective date of the instrument creating the possibility or condition, the possibility or condition no longer is valid thereafter. § 143, entitled “Thirty-year limit on possibilities of reverter and rights of entry created on or after July 1, 1969,” stated: (a) A special limitation or a condition subsequent, which restricts a fee-simple estate in land, and the possibility of reverter or right of entry for condition broken thereby created, shall, if the specified contingency does not occur within thirty years after the possibility of reverter or right of entry was created, be extinguished and cease to be valid. Any estate of fee simple determinable or any fee-simple estate subject to a condition subsequent shall become a fee simple absolute if the specified contingency does not occur within thirty years from the effective date of the instrument creating the possibility of reverter or right of entry.

(b) Subsection (a) shall become effective on July 1, 1969, with respect to inter vivos instruments taking effect on or after that date, to the wills of persons who die on or after that date and to appointments made on or after that date, including appointments by inter vivos instruments or wills under powers created before such date. Selnick points out that § 143 states that it applies to “a fee simple estate in land,” and this language is not in R.P. § 6-101. After 1969, § 143 and related sections were recodified in Article 21, Title 6, which was “derived in its entirety from §§ 143-147 of former Article 21.” Md.Code (1974), Title 6 of ⁶⁹² the Real Property Article (comment to former Article 21, Title 6). Then, the General Assembly enacted Md.Code (1974), § 6-101 of the Real Property Article, which consisted of “new language derived from former Article 21, § 6-101 of the Code”