Kobrine, L.L.C. v. Metzger

EYLER, JAMES R., J. This case involves a dispute over title to and the use of a parcel of property (hereinafter referred to as the “parcel in question”) located on the Patuxent River in a subdivision known as' Harbor Light Beach (“HLB”). The parties are a homeowner’s association and owners or former owners of lots and other parcels of land located in the subdivision. The parcel in question had been used by the lot owners in HLB for recreational purposes. The circuit court held that the lot owners enjoyed an easement in the parcel in question and certain lot owners held title to the parcel in question.

We shall affirm the judgment of the circuit court with one exception; we shall vacate the order with respect to Dr. Arthur Kobrine, a non-party. Factual Background This litigation began in 1999 when several of the lot owners in HLB filed a complaint in the Circuit Court for Calvert County, seeking a declaratory judgment and other relief against Kobrine, L.L.C., one of the appellants herein, challenging the company’s asserted ownership of the parcel in question. The operative complaint is the second amended complaint filed on July 21, 2000. As of that time, the plaintiffs were Bruce R: Metzger, the owner of a lot in section 2 of HLB subdivision, and HLB Home Owners Association, Inc., appel-lees herein, and the defendants were Kobrine, L.L.C. and various individuals who owned lots and other parcels in HLB, some of whom had originally been named as plaintiffs, as well ²⁶⁷ as Joseph B. Waters, III, Richard C. Alexander, Janet Owens and Jennifer Owens as personal representatives of the estate of Dorothy Owens, who granted the parcel in question to Kobrine, L.L.C., and who are the remaining appellants.

The original property, developed as HLB, was owned by J. Earl and Ruth C. Brown at the time of its subdivision in 1956. At that time, the plats depicting section 1 and section 2 were recorded in the plat records of Calvert County. The parcel in question is depicted on the plat of section 2 and is described as “Area Reserved for the Use of Lot Owners.” After the plats were recorded, the Browns conveyed some of the lots to individuals who were predecessors in title to some of the defendants and, except for certain conveyances not here relevant, conveyed the rest of the HLB property to Beltway Industries, Inc. (Beltway). The conveyance to Beltway was by deed dated September 13, 1960, which was recorded in the land records of Calvert County.

In 1972, Beltway executed a Declaration of Covenants, Restrictions and Conditions (“the Declaration”), also recorded in the land records of Calvert County. Beltway conveyed some of the lots in the subdivision to individuals who are predecessors in title to some of the defendants and conveyed the remainder of the HLB property to Joseph B. Waters, III, Dorothy S. Owens, 1 and Richard C. Alexander (Waters et al.). The conveyance to Waters et al. was by deed dated June 30, 1976, which was recorded in the land records of Calvert County. Bruce Metzger acquired title to his lot from the prior lot owner, by deed dated April 24, 1998, which was recorded in the land records of Calvert County.

In 1991, Dr. Arthur Kobrine and his wife purchased a lot in section 2 of HLB, which was adjacent to the parcel in question. In 1999, Dr. Kobrine and his wife formed Kobrine, L.L.C. to acquire title to the parcel in question. Waters et al. ²⁶⁸ conveyed the parcel in question to Kobrine, L.L.C. by deed dated September 28, 1999, which was recorded in the land records of Calvert County. Appellees, in their second amended complaint, alleged that they and their predecessors in title openly used the parcel in question for recreational purposes for over 20 years.

Appel-lees sought a declaration that they and other lot owners in .HLB have an easement in the parcel in question for recreational purposes, based on the Declaration and the plat depicting section 2 of the HLB subdivision or, in the alternative, by prescription. Appellees also sought a declaration that Kob-rine, L.L.C. held title to the parcel in question in constructive trust for HLB lot owners and that Kobrine, L.L.C. be required to convey title to the lot owners. Finally, appellees asked that Kobrine, L.L.C. be enjoined from interfering with the lot owners’ use of the parcel in question. The case was tried on May 2, 2002, and the court issued a memorandum and order on September 6, 2002.

The court ordered that (1) lot owners in HLB have an easement in the parcel in question, (2) the easement is for access to the Patuxent River and for swimming, fishing, crabbing, sunbathing, launching of hand-carried boats, and picnicking, (3) appel-lees are authorized to remove the rip-rap placed on the property by Kobrine, L.L.C., and Dr. Arthur Kobrine, a principal in Kobrine, L.L.C., shall be responsible for the reasonable cost of removal, (4) the- sale of the parcel in question from Waters et al. to Kobrine, L.L.C. is null and void and, (5) appellees’ counsel shall submit a judgment transferring title to the parcel in question to the owners of the 56 lots who purchased their lots subsequent to the filing of the Declaration. The court entered such a judgment on September 9, 2002, and amended it on December 5, 2002. The judgment vested certain named individuals with undivided fee simple interests in the parcel in question, as shown on a schedule attached to the judgment. We shall discuss additional facts as we discuss the issues. ²⁶⁹ Appellants’ Contentions Appellants first contend that the court erred in holding that certain lot owners in HLB owned the parcel in question and in declaring Kobrine, L.L.C.’s purchase null and void.

In support of that contention, appellants argue that (1) appellees abandoned the claim to ownership prior to trial and were judicially estopped from claiming it at trial, (2) the Declaration does not, by its express terms, apply to the parcel in question, (3) the Declaration does not comply with the statutory requirements applicable to the transfer of real property, and (4) the provision in the Declaration relied on by the court is void because it violates the Rule Against Perpetuities. Second, appellants contend the court erred in concluding that the lot owners had an express easement in the parcel in question. In support of that contention, appellants argue that (1) the plat did not comply with the statutory requirements for conveying such an interest in real property, (2) the title experts testified that the plat did not provide lot owners with use rights, (3) the plat did not comply with the Statute of Frauds, and (4) the plat, Declaration, and deeds to lot owners did not create an express easement. Third, appellants contend that the court erred in finding an implied easement.

In support of that contention, appellants argue that (1) appellees were estopped because they claimed an express easement, (2) there was no evidence that the lot owners relied on the relevant documents, and (3) the court misconstrued the relevant case law and documents. Fourth, appellants contend that the court erred in permitting appellees to remove the rip-rap from the parcel in question because it was in violation of environmental laws. Finally, appellants contend the court erred in holding Dr. Kobrine personally responsible for payment of costs incurred in the removal of the rip-rap because he was not a party to the case. ²⁷⁰ Appealability The circuit court executed its memorandum and order on September 6, 2002, and judgment was entered on the docket on September 9, 2002. Appellants’ notice of appeal was filed on or about September 13.

The court executed an “amended judgment” on December 5, 2002, which was entered on the docket on December 10. Generally, only final judgments are appealable. Md. Code (2002 Repl.Vol.) Courts and Judicial Proceedings, § 12-301, (hereinafter “CJ § ”). In order to be final, a judgment must satisfy certain criteria, including the requirement that it must be intended by the court to be the unqualified final disposition of the matter.

Milburn v. Milburn, 142 Md.App. 518, 523 , 790 A.2d 744 (2002). A party seeking to appeal to this Court must file a notice of appeal within 30 days after the entry of judgment from which the appeal is taken. See Md. Rules 8-201, 8-202, 8-302; see also Jenkins v. Jenkins, 112 Md.App. 390, 399 , 685 A.2d 817 (1996). A judgment must be set forth on a separate document, Md. Rule 2-601, and the judgment is effective when the separate document is recorded by the clerk.

Byrum v. Homing, 360 Md. 23, 29 , 756 A.2d 560 (2000) . In the case before us, the September 6 order expressly envisioned a subsequent order to implement it. Facially, the September 6 order was not intended as an unqualified final disposition of the matter. The judgment became final on December 10, but the notice of appeal was filed before, not after, the final judgment.

When appropriate, an appeal can be taken pursuant to the collateral order doctrine. See Md. Rule 12-303. The doctrine applies when the order from which the appeal is taken conclusively determines the disputed question, resolves an important issue, is completely separate from the merits, and is effectively unreviewable on appeal. Baltimore Police Department v. Cherkes, 140 Md.App. 282, 298 , 780 A.2d 410 (2001).

Obviously, the September 6 order does not meet those requirements. ²⁷¹ Similarly, the September 6 order cannot be treated as an appealable judgment under the savings provisions in the rules, the most nearly applicable being Md. Rule 8-602(d). See Carr v. Lee, 135 Md.App. 213, 226, n. 4 , 762 A.2d 142 (2000). We conclude, however, that we are able to address the issues raised on the merits, as an interlocutory appeal permitted by statute. See CJ § 12-303(1) (order with regard to possession of property) and CJ § 12-303(3)(iv) (order with regard to conveyance of property and the payment of money).

Analysis The circuit court’s opinion Before examining appellants’ contentions, it is helpful to summarize the circuit court’s findings and conclusions. The circuit court found that the parcel in question is burdened by an express easement based on the following rationale. The parcel in question was described as a reserved area on the plat of section 2 of the subdivision. The deed dated September 13, 1960, from the Browns to Beltway referenced the plat and the parcel in question in its description of the property conveyed, as follows: “All of the roads, streets, drives, paths, shore and reserved areas as shown and designated on Plats of sections One (1) and Two (2) of Harbor Light Beach Subdivision recorded in Liber A.W.R. No. 1, folio 43, and Liber J.L.B. No 1, folio 7, Plat Books of Calvert County, Maryland, subject, however, to any rights of way of record and to right of way in common to lot owners in said subdivision over the nearest street and road to the public highway and to the waters of Mill Creek and the Patuxent River in said reserved areas as shown on the aforesaid plats.” (sometimes referred to as the “subject, to” language) The Declaration, executed in 1972, provided: “DEVELOPER, present owner of the remaining 56 lots of Harbor Light Beach, desires to set up a sound basis for maintenance of the roadways and reserved areas of Harbor Light Beach.

To this end, LOT OWNERS, their heirs and ²⁷² assigns of the said remaining 56 lots, will pay a l/56th share per lot of said maintenance cost until such time as all 56 remaining lots are sold, at which time the said LOT OWNERS, their heirs and assigns, will accept a 1/56 fee simple interest per lot in said roadways and reserved areas, thereby relieving DEVELOPER of all liabilities relative to said roadways and beach areas.” The deed dated June 30, 1976, from Beltway to Waters et al. conveyed the 44 lots then remaining in the subdivision plus the parcel in question. The deed referenced the plat and the parcel in question in its description of the property being conveyed. It contained the same “subject to” language as that contained in the deed from the Browns to Beltway. The deeds to Bruce Metzger and to Kobrine, L.L.C. both referenced the plat in their descriptions of the property conveyed.

The Metzger and Kobrine, L.L.C. deeds, while not including the specific “subject to” language cited above, explicitly state that the conveyances were “subject to all easements, covenants and restrictions of record” (Metzger Deed) and “subject to covenants and restrictions of record” (Kobrine L.L.C. Deed). The circuit court determined that the Browns and Beltway, as owners and developers, created an easement for HLB lot owners by language in deeds, by referencing the recorded plat, and by the Declaration. The court specifically referenced the “subject, to” language in the deed from the Browns to Beltway and the subsequent deed from Beltway to Waters et al, emphasizing the language “and to right of way in common to lot owners ... to the waters of ... Patuxent River in said reserved areas as shown on the aforesaid plats.” The court also pointed out that the parcel in question was delineated as “reserved” on the plat of section 2.

With respect to the Declaration, the court construed it as applicable to the parcel in question, based on its language, and supported by extrinsic evidence. Alternatively, an implied easement existed, according to the court, based on the fact that the deeds from the Browns to ²⁷³ Beltway, and Beltway to Waters et al. incorporated the section 2 plat and its language; that Beltway and Waters et al. repeatedly referenced the plat in their conveyances to lot purchasers; and the parcel in question was covered by the terms of the Declaration. The court’s finding of an implied easement was also supported by evidence that the marketing and sale of subdivision lots was based on representations that the parcel in question was for the use of lot owners, and lot owners historically used the parcel in question for recreational purposes. Additionally, the court found that an implied easement existed based on a uniform general plan of development.

Having determined that an easement existed for the benefit of lot owners, the court determined the nature and scope of the easement by looking to relevant circumstances to determine the intent of the original grantor and to determine reasonable use by lot owners. The use was defined as access to Patuxent River and beach-related activities. Finally, the court specifically enforced the provision in the Declaration relating to ownership of the parcel in question, declared null and void the conveyance to Kobrine, L.L.C., and transferred title to the owners of the 56 lots who purchased subsequent to the filing of the Declaration. Ownership Appellants contend that appellees were judicially estopped from pursuing a claim of ownership.

We disagree. As appellees correctly point out, judicial estoppel is only applicable in cases where the party has successfully pursued one theory, but then asserts a second, contrary theory, in another action. Gordon v. Posner, 142 Md.App. 399, 424 , 790 A.2d 675 (2002) (citing Mathews v. Underwood-Gary, 133 Md.App. 570, 579 , 758 A.2d 1019 (2000)). “Judicial estoppel, also knowm as the ‘doctrine against inconsistent positions,’ and ‘estoppel by admission,’ prevents ‘a party who successfully pursued a position in a prior legal proceeding from asserting a contrary position in a later proceeding.’ ” Gordon, 142 Md. ²⁷⁴ App. at 424, 790 A.2d 675 (citing Roane v. Washington County Hosp., 137 Md.App. 582, 592 , 769 A.2d 263 , cert. denied, 364 Md. 463 , 773 A.2d 514 (2001) (plaintiff sued in one county claiming she had necessary surgery and then sued in another county on a theory that the surgery was unnecessary)). In the case at bar, the appellees consistently argued that they had rights to the parcel in question, namely the right to use the property and the right to ownership of an equal share of the property.

Appellees included a claim of ownership in their second amended complaint. Specifically, the amended complaint asked the court to “declare that Kobrine, L.L.C. hold the title of the reserved area in trust for the lot owners and must convey the title to them at a l/56th fee interest per lot owned as tenants in common as directed by the Declaration of Covenants.” This request was renewed in appellees’ trial memorandum. Despite this language, appellants assert that any claim of ownership was waived by counsel for appellees at the hearing on the motion for summary judgement. Appellees cite several cases for the proposition that an attorney can bind his or her client by admissions made in open court.

See, e.g., Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 45 , 300 A.2d 367 (1973). While we agree in principle that an attorney can bind his or her client, we do not believe that proposition is dispositive in this case. Appellees’ counsel was clear that appellees were asking for rights to use the property, either via ownership vesting in each homeowner as tenants in common, or by imposing a constructive trust. At the hearing on the motion for summary judgement, appellees requested Kobrine, L.L.C. to “convey 55/56ths of it back to us, or whatever our proportionate share is, we would be glad to enforce it ourselves, police it, and make sure that it is used in compliance with the law.” Appellees wanted to share ownership of the property among all of the residents, including appellants.

This is exactly what the court stated in the introduction to its memorandum and order. The circuit court understood ²⁷⁵ that “[tjhis case involves a dispute concerning ownership of a parcel of land (hereinafter referred to as ‘the Property’). The Court must also determine if an easement encumbers the Property.” Thus, it is clear that the court addressed the question of ownership, which was not waived by the appellees because they maintained that they owned collectively 55/56ths of the property, divided equally among the members of the subdivision. As for the merits of the ownership issue, appellants assert that they own the parcel in question via the deed from Waters, et al. to Kobrine, L.L.C. Appellants, applying contract principles, claim that the Declaration is unambiguous and does not give any rights in the parcel in question to any of the other lot owners.

As an unambiguous contract, appellants state that the court could only look at the four corners of the document to determine the scope of its application. Because the preamble to the Declaration did not specifically mention the parcel in question, appellants assert that it does not apply to that property. The circuit court applied contract principles but determined that “the Declaration appeared ambiguous because the reserved area did not appear in the Preamble but was mentioned in the body of the Declaration under the ‘General’ covenants.” The circuit court treated the Declaration as a contract to convey the reserved areas. See Namleb Corp. v. Garrett, 149 Md.App. 163, 174 , 814 A.2d 585 (2002) (citing Colandrea v. Wilde Lake Community Ass’n, 361 Md. 371, 395-96 , 761 A.2d 899 (2000)) (“a restrictive covenant is contractual in nature, and a suit to enforce it is in the nature of specific performance”); accord Chesapeake Brewing Co. v. Goldberg, 107 Md. 485 , 69 A. 37 , (1908).

Having determined that the Declaration was ambiguous, the circuit court properly looked to extrinsic evidence to determine its meaning. See Coopersmith v. Isherwood, 219 Md. 455, 460 , 150 A.2d 243 (1959) (“The general principle in the construction or interpretation of contracts that the intention of the parties must be gathered from the contents, phraseology, ²⁷⁶ and words of the document itself,- unless there is some ambiguity in its language, is too elementary to need citation of authority. Only when the language or words, used in their ordinary sense, are vague, doubtful, or have two meanings may extrinsic evidence be used to determine the intention of the'parties.”); accord Calomiris v. Woods, 353 Md. 425, 435-37 , 727 A.2d 358 (1999); Canaras v. Lift Truck Services, Inc., 272 Md. 337, 350 , 322 A.2d 866 (1974); Little v. First Federated Life Ins. Co., 267 Md. 1, 5 , 296 A.2d 372 (1972); Admiral Builders Savings and Loan Asso. v. South River Landing, 66 Md.App. 124, 129-31 , 502 A.2d 1096 (1986). “This conclusion is reinforced, moreover, if we observe the rule that the intention of the parties must be garnered from the terms of the contract considered as a whole, and not from the clauses considered separately.” Hasten Constr.

Co. v. Rod Enterprises, Inc., 268 Md. 318, 329 , 301 A.2d 12 (1973) (citing Perper v.. Fayed, 247 Md. 639 , 234 A.2d 144 (1967); Wheaton Triangle Lanes v. Rinaldi, 236 Md. 525 , 204 A.2d 537 (1964); Sagner v. Glenangus Farms, 234 Md. 156 , 198 A.2d 277 (1964); Walton v. Washington County Hospital Association, 178 Md. 446 , 13 A.2d 627 (1940)). The circuit court observed that appellants’ position “seeks to construe the Preamble in isolation and fails to consider the Declaration as a whole entity.” The circuit court stated that appellants’ view conflicted with the aims of a general scheme for treatment of the reserved areas. The circuit court noted that the subdivision roadways were not included in the preamble either but that the plan to maintain the reserved areas and roadways would be vitiated if it did not apply to any roads.

Thus, the circuit court concluded that the Declaration, although ambiguous, could be understood if extrinsic evidence were used to determine its meaning: [The extrinsic evidence] which supports the Court’s determination that the Declaration includes the Property, is that the Developer, Beltway, who filed the Declaration in 1972, used the plat, showing the reserved area to Mr. Powell, who purchased a lot that year. This conduct by the Developer is consistent with the inference that Beltway intended to have ²⁷⁷ purchasers rely on the reserved area easement and that Beltway interpreted the Declaration as providing for the easement in the area reserved for lot owners. Whether a contract is ambiguous is a question of law, which we review de novo. See Calomiris v. Woods, 353 Md. at 434 , 727 A.2d 358 (citations omitted).

We concur with the circuit court’s conclusion that the Declaration is ambiguous. This conclusion is supported by the fact that the scheme for maintenance of the subdivision’s reserved areas is stated in the body of the document, but none of the reserved areas are listed in the preamble. See Calomiris, 353 Md. at 435-36 , 727 A.2d 358 (“a written contact is ambiguous if, when read by a reasonably prudent person, it is susceptible of more than one meaning”) (citations omitted). “Where the language is ambiguous, the court must then determine the intent and purpose of the parties at the time the contract was made, which is a question of fact.” Anne Arundel County v. Croflon Corp., 286 Md. 666, 673 , 410 A.2d 228 (1980) (citing H & R Block, Inc. v. Garland, 278 Md. 91, 98 , 359 A.2d 130 (1976); Canaras v. Lift Truck Services, Inc., 272 Md. 337, 352 , 322 A.2d 866 (1974); Dorsey v. Hammond, 1 H. & J. 191 , 201 (1801)). Like any other question of fact, our review on this point is under a clearly erroneous standard, insuring that there was sufficient evidence to support the conclusion drawn.

See, e.g., Colandrea, 361 Md. at 394 , 761 A.2d 899 . The extrinsic evidence was sufficient to support the circuit court’s conclusion that the parcel in question was subject to the restrictions contained in the Declaration. Having determined that the Declaration was ambiguous, and finding no error in the circuit court’s determination that the parcel in question was covered by the restrictions therein, we need only assess whether the remedy given was appropriate. We note that, in contract law, relief can be in the nature of monetary damages, injunctions, or specific performance.

Restatement (Second) of Contracts, § 345. Specific performance is an allowable remedy to enforce a covenant. ²⁷⁸ See, e.g., Colandrea, 361 Md. at 395-96 , 761 A.2d 899 (“Generally, covenants affecting property are, even when running with the land, nonetheless contractual in nature. A suit to enforce them is in the nature of specific performance.”); accord Nam-leb, 149 Md.App. at 174 , 814 A.2d 585 . We have long held that specific performance is granted at the discretion of the trial court.

Specific performance is not a matter of absolute right in the party but of sound discretion in the court. This discretion is not, however, arbitrary; and where the contract is, in its nature and circumstances, unobjectionable—or, as it is sometimes stated, fair, reasonable and certain in all its terms—it is as much a matter of course for a court of equity to decree specific performance of it as it is for a court of law to award damages for its breach. Glendale Corp. v. Crawford, 207 Md. 148, 154 , 114 A.2d 33 (1955); accord Steele v. Goettee, 313 Md. 11, 23 , 542 A.2d 847 (1988). To address fairness and reasonableness, we turn to the case of Glendale, 207 Md. at 151 , 114 A.2d 33 , in which the homeowners, the Crawfords, agreed to purchase property in a subdivision for the purpose of building their home.

Just before settlement, the Crawfords sought to rescind their promise to purchase the land because it was graded more steeply than they had first been led to believe and, as such, was unsuitable for their home. Id. The severity of the grading problems could be seen when the Crawfords’ lot was compared with the adjacent lot, which had been cut down to such a degree that the roof of the home built on that lot would be level with the Crawfords’ ground floor. Id. at 152 , 114 A.2d 33 .

Although the owners of the adjacent lot did their own grading of their land, their plans were submitted for approval to the subdivision developer, Glendale. Id. The approval procedures to be followed by Glendale were outlined in a recorded document imposing restrictive covenants. Id. at 153 , 114 A.2d 33 . ²⁷⁹ The circuit court concluded that no reasonable person would buy a lot if that lot would tower above an adjacent home.

Id. The Court of Appeals concurred, holding that specific performance to enforce the promise to purchase the lot was an undue hardship, considering the grading of the land. Id. at 159 , 114 A.2d 33 . Relying on the settled principle that the fairness of the deal is to be determined at the time of the making of the contract, the court concluded that specific performance would be unfair.

Id. at 154-55 , 114 A.2d 33 . This is because Glendale promised to approve grading schemes according to the guidelines set forth in the restrictive covenant, and it failed to adhere to its restrictions. Id. The Court based its decision on the following principle: [W]here statements of fact which are essentially connected with the subject of the transaction (and are not mere expressions of opinion, hope or expectation, or mere general commendations), “and especially where they are concerning matters which, from their nature or situation, may be assumed to be within the knowledge or under the power of the party making the representation, the party to whom it is made has a right to rely on them, he is justified in relying on them, and in the absence of any knowledge of his own, or of any facts which should arouse suspicion and cast doubt upon the truth of the statements, he is not bound to make inquiries and examination for himself.” Id. at 155-56 , 114 A.2d 33 (citation omitted).

In other words, the Crawfords had relied on the restrictive covenant and were entitled to do so. Id. The Crawfords expected the land to be kept in its natural state according to the approval procedures set forth in the restrictive covenant. Id.

Thus, it would be unfair to require the Crawfords to buy the property they had promised to purchase. Id. Similarly, in the case at bar, the developers promised in the Declaration to give the reserved areas to the lot owners once all of the lots were sold. In its memorandum and order, the circuit court recognized that “[t]he Declaration is captioned Covenants, Restrictions and Conditions, which ‘control lot owners acquiring title to ... lots subsequent to the record ²⁸⁰ ing of these covenants.’ ” The appellees in this case were entitled to rely upon that Declaration.

Like the covenant in Glendale Corp., the Declaration in the case sub judice should be given its full effect because it is “connected with the subject of the transaction” and “within the knowledge or under the power of the party making the representation.” Id. The developers promised to convey the property to the lot owners once all 56 lots were sold. This was within the control of the developers, as they held title to the reserved areas. The lot owners were entitled to rely upon the Declaration, which stated that the parcel in question would be theirs after all the lots were sold.

Thus, we hold that it was fair for the circuit court to use specific performance to remedy the breach of contract to convey the parcel in question to the lot owners. We also hold that specific performance is a reasonable remedy in this situation. In Glendale Corp., the hardship of specific performance was analyzed to determine if requiring the Crawfords to buy the land was reasonable. Id. at 158 , 114 A.2d 88 .

The Court stated that the developers were in the business of buying and selling land and could, even with the grading, resell the property. Id. The Crawfords, on the other hand, would be severely prejudiced if they had to buy the land according to their contract, and then spend the money to regrade it, or redesign their house because of the current grading. Id.

The Court of Appeals, in Glendale Corp., put it simply: “the property would be useless to the Crawfords.” Id. In the case before us, specific performance of the covenant to convey is reasonable because the subdivision was created and lots therein conveyed with the intention and expectation that the parcel in question would be owned as common property. It is reasonable for a community as a whole to own, use, and maintain common property. See Restatement (Third) of Property: Common Interest Communities § 6.6 cmt. a (2000).

Thus, it was reasonable for the circuit court to effectuate the intent of the Declaration by ordering specific performance. Finally, “[t]o be specifically enforced, a contract for the sale of real property must be definite and certain in its ²⁸¹ terms.” Excel Co. v. Freeman, 252 Md. 242, 247 , 250 A.2d 103 (1969) (citing Silverman v. Kogok, 239 Md. 71, 77 , 210 A.2d 375 (1965); Grooms v. Williams, 227 Md. 165, 170 , 175 A.2d 575 (1961); Globe Home Impvt. Co. v. Brothers, 204 Md. 73,