Kobrine, L.L.C. v. Metzger

WILNER, J. The issue before us is whether the Circuit Court for Calvert County erred in concluding that each of the 56 lot owners in the Harbor Light Beach (HLB) subdivision (1) owned, in common, a one-fifty-sixth undivided fee simple interest in a reserved lot in Section 2 of that subdivision that had been deeded to petitioner Kobrine, L.L.C., which we shall henceforth refer to as the KLLC lot, and (2) also had an express and an implied recreational use easement in that lot. 1 With one minor exception, the Court of Special Appeals affirmed the Circuit Court’s judgment. Kobrine, L.L.C. v. Metzger, 151 Md.App. 260 , 824 A.2d 1031 (2003). Because we disagree with most, though not all, of the lower court judgments, we shall vacate them and direct a remand for the entry of a more limited judgment. ⁶²³ BACKGROUND Although it started out differently, this case, as it ultimately was presented for decision, was a battle between two lot owners in Section Two of the HLB subdivision. Dr. and Ms. Kobrine own Lot 3 in Block E — a lot that directly borders the Patuxent River.

Bruce Metzger owns Lot 8 in Block A — a non-riparian lot that at one time had access via an interior road to the KLLC lot, which was immediately to the west of the Kobrine lot and also bordered the Patuxent River. Because, on the recorded plat of Section Two, the KLLC lot was marked “Area Reserved For the Use of Lot Owners,” some of the lot owners in the subdivision used that parcel not just for access to the river but also for picnics, parties, and other recreational uses. In 1999, the Kobrines, through a limited liability company they created, Kobrine L.L.C. (KLLC), purchased the abutting KLLC lot and precluded Metzger and other subdivision lot owners from continuing to use it.

Access to the river remained available through a nearby thirty-foot road. On behalf of himself and a homeowners association that he created, HLB Home Owners Association, Inc. (HOA), Metzger sued to have KLLC’s title declared invalid. HOA owns no property in the subdivision and has no contractual or other legally cognizable interest in any of the roads in the subdivision or in the KLLC lot. No other lot owner in the subdivision seeks to upset or impair KLLC’s title.

The land comprising the HLB subdivision was once owned by J. Earl Brown and his wife, Ruth. In 1955, the Browns recorded a plat entitled “ ‘Harbor Light Beach’ Subdivision Section No. 1,” a copy of which is attached to this Opinion as Appendix A. The plat laid out 22 residential lots, all but five of which bordered Mill Creek, a tributary of the Patuxent River. Abutting some of the lots on the south was a 30-foot road that turned north and ran to Mill Creek, thus providing access from the five non-riparian lots to the water. The Browns signed the plat, attesting that certain statutory requirements had been met.

The plat showed one unnumbered, ⁶²⁴ elongated parcel, shown as shaded on Appendix A, that divided Lots 8 and 9 and Lots 7 and 10 and led from the 30-foot road to Mill Creek, but the plat made no reference to any “reserved” lot. In 1958, the Browns recorded a second plat, entitled “ ‘Harbor Light Beach Subdivision’ Section Two,” a copy of which, with identifying legends added by us, is attached as Appendix B. That plat laid out 39 numbered residential lots and two unnumbered parcels. Three of the numbered lots and the two unnumbered parcels bordered the Patuxent River. The unnumbered lot shown on Appendix B as shaded is the KLLC lot.

That is the lot most relevant to this case. The other unnumbered lot is shown as hash marked. The plat showed four interior roads, one of which, Port Drive, led to the KLLC lot and thus, together with the other interior roads, provided access from the non-riparian lots to the river. This plat was not signed by the Browns — indeed, then-names did not appear on it at all — but, as noted, it contained a legend on the KLLC lot, “Area Reserved For The Use Of Lot Owners.” Neither the legend nor anything else on the plat indicated which lot owners were intended to be benefitted— only those owning lots in Section Two or those owning lots in Section One as well.

At various times prior to September, 1960, the Browns sold five lots from Section One (Lots 14,15,16,17, and 18) and one lot from Section Two (Block E, Lot 3). In September, 1960, or at some point thereafter, they conveyed all but one of the remaining numbered lots in Section One and all of the remaining lots in Section Two to Beltway Industries, Inc. 2 Included in the deed as well were (1) two described parcels, of 3.268 acres and 2.566 acres, respectively, that bordered but were not ⁶²⁵ part of the HLB subdivision, (2) the unnumbered parcel separating Lots 8 and 9 and 7 and 10 on the plat of Section One, which the deed referred to as a “Reserved Area on Plat of Section No. One,” and (3) the two unnumbered parcels in Section Two. The “reserved” parcel in Section Two — the KLLC lot — was not separately identified in the deed but was included within the conveyance of all “roads, streets, drives, paths, parks, shore and reserved areas as shown and designated” on the plats of Sections One and Two, “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 public highway and to the waters of Mill Creek and the Patuxent River in said reserved areas as shown on the aforesaid plats.” The deed thus appeared to convey 54 numbered lots, four identified parcels, and, along with the roads and paths, the KLLC lot in Section Two shown as reserved. In October, 1972, Beltway recorded a Declaration of Covenants, Restrictions and Conditions covering the 54 numbered lots and the two extraneous parcels that Beltway had acquired from the Browns but which were not part of the subdivision as shown on the two plats.

Beltway apparently lumped those two parcels with the 54 lots and referred to them as 56 lots, as though they were all part of the subdivision. The Declaration did not mention or include the lots previously sold by the Browns, the unidentified parcel shown on the plat of Section 1, or the two unnumbered parcels in Section Two. The Declaration stated that the covenants were designed to make Harbor Light Beach a desirable community and to assure that every effort would be made to protect the investment of each lot owner. The covenants were said to be supplemental “to the covenants, restrictions and conditions originally placed upon the subdivision known as Harbor Light Beach if any were, in fact, so recorded.” All references to “lot owner” were declared to mean “the purchaser, the party of the second part, his heirs or assigns.” Most of the covenants and restrictions contained in the Declaration concerned the use of the lots and what could be ⁶²⁶ built on them.

Several more general provisions are of particular relevance to this dispute. All right, title, and interest to the streets and drives laid out on the recorded plats were expressly reserved to Beltway, subject to the ability of the lot owners to use them to access the nearby public road. Those streets and drives were declared to be private roads, and each lot owner was required to pay an annual assessment to Beltway for road maintenance. Paragraph 5 of the General Provisions — the provision most applicable here — stated: “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 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 l/56th fee simple interest per lot in said roadways and reserved areas, thereby relieving DEVELOPER of all liabilities relative to said roadways and beach areas. Until such time, LOT OWNERS agree to pay to DEVELOPER, if and when billed, a sum of not more than $20.00 per lot, per year, for use in road and reserved area maintenance.” (Emphasis added). In ¶ 7 of the General Provisions, Beltway reserved to itself and its successors and assigns the right to enter any premises to abate the violation of a condition or the breach of a covenant, and, in ¶ 9, Beltway reserved the right to enjoin any breach or threatened breach. The final part of the Declaration provided: “After a majority of the lots in Section 1 and Blocks C, D, and E of Section 2 have been conveyed by DEVELOPER to LOT OWNERS, or at such other time as DEVELOPER, in its sole discretion may determine, DEVELOPER, or its agent, as agent for said LOT OWNERS, is authorized to cause a community protective corporation or association to ⁶²⁷ be organized for the purpose of assuring the perpetuation of Harbor Light Beach as a desirable community and the safeguarding the investment of all LOT OWNERS.

The management of said organization shall be governed by its members.” (Emphasis added). The Declaration continued that, upon the organization of such an association, all of the then lot owners agreed to become members, that one of the purposes of the association would be the promotion and enforcement of the covenants in the Declaration, and that, to that end, the lot owners, on behalf of the association, agreed to accept from the Developer an assignment of its rights, privileges, and responsibilities and “the enforcement of these Covenants, Restrictions and Conditions.” Nothing in the Declaration suggested that any individual lot owner could create such an association with independent authority to enforce any of the covenants or restrictions. Five months later, in March, 1973, Beltway recorded a Supplemental Declaration applicable to the unnumbered lot in Section One — the lot that separates Lots 8 and 9 and Lots 7 and 10. This Supplemental Declaration stated that if the Developer, in its sole discretion, chose to make access to Mill Creek available to any of Lots 7, 8, 9,10, or 11 of Section One by utilizing the unnumbered lot for that purpose, the access would not be open to public ingress and egress but would, instead, be limited to those of the five lots to which the Developer chose to make such access available. 3 In June, 1976, Beltway conveyed six of the numbered lots in Section One, all of the 38 previously unsold numbered lots in Section Two, the unnumbered lot in Section One that divided Lots 8 and 9 and Lots 7 and 10, the 2.566 acre parcel that bordered but was not part of the subdivision plats, and the two unnumbered parcels in Section Two to Joseph Waters, Doro ⁶²⁸ thy Owens, and Richard Alexander (the Waters group).

The fate of the remaining lots in Section One that had been deeded to Beltway but that were not covered by this conveyance is unclear. We shall assume that they had been previously sold by Beltway. Also included in the deed to the Waters group were all of the roads, streets, drives, paths, parks, and “shore and reserved areas as shown and designated on Plats of Section One (1) and Two (2) of Harbor Light Beach Subdivision .... ” The Waters group made a number of conveyances of importance here. In 1980, they conveyed to Mr. and Ms. Mychalus the six lots in Block C of Section Two plus a part of the unnumbered hash marked parcel that ran from lot 4 of Block C south to the river, thereby giving the Mychaluses direct access to the river.

The part of the unnumbered parcel conveyed to the Mychaluses lay just to the west of the reserved (KLLC) lot. In October, 1982, the Harbor Light Beach (Section One) Property Owners Association, Inc. was incorporated for the purpose of maintaining and repairing the roads in Section One of the HLB subdivision. The members were all of the lot owners in Section One. In January, 1983, the Waters group conveyed to that association the three roads in Section One.

It does not appear that any similar association was created for Section Two, and, at some point in 1984, the Waters group conveyed two of the roads in Section Two to the County Commissioners of Calvert County. One road was described as Port Drive, which ran from a State road to the northern edge of the KLLC lot; the other connected Port Drive to land lying to the east of the subdivision. In 1988, the Waters group sold to Gerald and Judith Tucker most of the rest of the unnumbered parcel in Section Two bordering the river that lay south of lot 4 of Block D and west of the portion sold to the Mychaluses. The conveyance left a 30-foot roadway separating the Mychalus and Tucker properties, thus providing access to the river, through the various internal roads, for all of the lots in Section Two.

In 1991, the Kobrines purchased lot 3 in Block E from existing owners. That lot bordered the reserved KLLC lot. In 1998, Metzger ⁶²⁹ purchased his lot from the existing owner. Both properties were described by reference to the recorded plat of Section Two, but neither deed said anything about the reserved KLLC lot.

Finally, for our purposes, in September, 1999, KLLC purchased the reserved lot from the Waters group. The deed to KLLC described the lot as “[a]ll that land which is shown and designated as ‘AREA RESERVED FOR THE USE OF LOT OWNERS’ on a plat entitled ‘Harbor Light Beach Subdivision, Section Two.’ ” The parties expressly acknowledged that the property was not being conveyed as a building lot, that no representation was made that the property could be used as such, that the grantee did not intend to erect a residential dwelling on it, and that the property was restricted from having any type of residential dwelling on it. The conveyance was in fee simple, “subject to covenants and restrictions of record,” and contained a special warranty that the grantors had not done anything to encumber the property conveyed. Within a month after KLLC purchased the lot, the Kob-rines, pursuant to a wetlands license obtained from the State Department of the Environment, installed a stone revetment along the shoreline to protect the KLLC lot from erosion.

That revetment made access to the water difficult. As relations between the neighbors began to sour, in part, according to the Kobrines, because of loud parties and picnics conducted on the KLLC lot by a few of the other lot owners, the Kobrines posted a no trespassing sign on the lot. In November, 1999, Metzger and the owners of six other lots filed suit in the Circuit Court for Calvert County against KLLC, seeking (1) a declaratory judgment that the deed to KLLC is void and that title to the KLLC lot is vested in the current owners of the 56 lots subject to the 1972 Declaration, and (2) an injunction to restrain the defendant from interfering with their use of the KLLC lot. Eventually, all of the plaintiff lot owners save Metzger dismissed their action.

In April, 2000, Metzger and two of the lot owners who had initially been co-plaintiffs incorporated an entity known as ⁶³⁰ HLB Home Owners Association, Inc. (HOA) for the purpose, among other things, of providing for the use, maintenance, and operation of the “Common Areas and Roads ... located in Harbor Light Beach Subdivision ... including any improvements ánd amenities located thereon.” The charter language thus seemed to extend HOA to the lot owners in both Section One and Section Two, notwithstanding that an association for Section One, to which the roads in that section had been conveyed, already existed. In July, 2000, Metzger and HOA filed a Second Amended Complaint against KLLC and the owners of the other lots in Section Two (including Metzger’s erstwhile co-plaintiffs) seeking a variety of alternative declaratory and injunctive relief. They sought a declaratory judgment that (1) “the Plaintiffs and other lot owners of Harbor Light Beach” have an easement in the KLLC lot for all lawful recreational purposes, KLLC holds title to the lot in constructive trust for such recreational use, and if the plaintiffs and other lot owners do not have an easement by virtue of the recorded plat, they have a recreational easement by prescription; and (2) HOA is the duly organized representative of Harbor Light Beach lot owners, KLLC holds title to the KLLC lot in trust for the lot owners and must convey title either to HOA or, in l/56th interests, to the 56 lot owners directly. After trial, the Circuit Court concluded that the owners of the 56 lots in Sections One and Two of the subdivision that were sold by the Browns to Beltway had a limited express and implied recreational easement in the KLLC lot and that they were also entitled to have title to that lot conveyed to them.

The express easement was based on the legend noted in the Section Two subdivision plat, the deed from the Browns to Beltway that referenced the plat and stated that the conveyance of reserved areas shown on the plat was subject to rights of way of record and to the right of way in common in the reserved areas, and the language in the 1972 Declaration. The order entered by the court declared that (1) “the lot owners of Harbor Light Beach have an easement in [the KLLC lot],” (2) the easement is for access to the river and ⁶³¹ enjoyment of the beach located on the lot, (3) “the Plaintiffs” — presumably meaning Metzger and HOA — were authorized and directed to remove the revetment from the property at the expense of Dr. Kobrine and KLLC, (3) the sale of the KLLC lot from the Waters group to KLLC was null and void, (4) plaintiffs’ counsel was to submit a judgment “transferring the [KLLC lot] to the owners of the 56 lots who purchased subsequent to the filing of the Declaration,” and (5) responsibility for maintenance of the lot was transferred immediately “to the lot owners.” Those conclusions were challenged, unsuccessfully, in the Court of Special Appeals. With respect to the validity of the deed to KLLC, the appellate court held that “[t]he developers promised to convey the property to the lot owners once all 56 lots were sold,” that “[t]he 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,” and 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.” Kobrine, L.L.C. v. Metzger, supra, 151 Md.App. at 280 , 824 A.2d at 1042 . In reaching that conclusion, the court held that the plaintiffs were not judicially estopped from seeking that relief, that the Declaration was not too vague or ambiguous to be enforced, and that “the agreement to convey in the Declaration” did not violate the Rule Against Perpetuit-ies.

The perpetuities argument was based on the assertion that there was no assurance that the sale of all 56 lots — the condition for the alleged agreement to convey the KLLC lot— would be accomplished within a life in being plus 21 years. The court rejected that argument on the ground that the developer did not intend for there to be such a hiatus and that “the developer’s intention would mandate not applying the rule.” Id. at 287 , 824 A.2d at 1046 . With respect to the easement, the appellate court concluded that it was unnecessary to consider whether an express easement had been created, as it agreed with the Circuit Court that an implied easement had been created by the general plan of development. In reaching that conclusion, the court ⁶³² relied principally upon this Court’s decisions in Steuart Transp.

Co. v. Ashe, 269 Md. 74 , 304 A.2d 788 (1973) and County Commissioners v. St. Charles, 366 Md. 426 , 784 A.2d 545 (2001). The only disagreement that the appellate court had with the trial court’s order was the requirement that Dr. Kobrine, who was not a party to the case, pay personally for removal of the revetment. We granted certiorari to review the two courts’ determination that the 56 lot owners in Sections One and Two of the subdivision had a right both to title of and a recreational use easement in the KLLC lot. . DISCUSSION Right to Conveyance of Title KLLC continues to mount a multi-faceted attack on the order declaring the deed to KLLC null and void and directing that title to the lot be conveyed either to HOA or to the owners of the 56 lots covered by the 1972 Declaration.

They raise the defense of judicial estoppel — that in the trial court, Metzger claimed that the Declaration constituted an actual conveyance of the KLLC lot to the other lot owners whereas on appeal he argued that it constituted merely a covenant to convey; they argue that, if treated as a covenant to convey, it violates the Rule Against Perpetuities; they contend that the Declaration does not even cover the KLLC lot; and they aver that, in any event, the provision relied upon does not constitute a covenant to convey. Their last point, which seems to have escaped the two lower courts entirely, is the telling one. The Court of Special Appeals construed ¶ 5 of the general provisions of the Declaration as a promise “to give the reserved areas to the lot owners once all of the lots were sold” — a promise “that the parcel in question would be theirs after all the lots were sold.” Kobrine, L.L.C. v. Metzger, supra, 151 Md.App. at 279-80 , 824 A.2d at 1042 . That is simply not the case.

We have quoted ¶ 5 of the general provisions in the 1972 Declaration. In order to create a sound basis for the maintenance of roadways and reserved areas, the Developer required ⁶³³ the 56 lot owners to pay, annually, a l/56th share of the maintenance costs “until such time as all 56 remaining lots are sold, at which time the said LOT OWNERS ... will accept a l/56th fee simple interest per lot in said roadways and reserved areas, thereby relieving DEVELOPER of all liabilities relative to said roadways and beach areas.” (Emphasis added). There is nothing in that provision that requires the developer to convey title to the roadways and reserved areas to the lot owners; it merely requires those owners to accept such a conveyance if one is tendered. That covenant to accept has significance in that, if the Developer chose to convey the roads and reserved areas, it would require the lot owners to bear the expense of maintaining them.

Apart from the very wording of the provision, which contains no covenant on the part of the Developer to do anything, the fact is that, without any protest from any of the lot owners in either Section One or Section Two, the Waters group, in at least two respects, acted in complete derogation of the existence of a covenant to convey. This is most clearly apparent from their deeding the roads in Section One to the homeowners association created in 1982 for the purpose of owning and maintaining them and by deeding the roads in Section Two to Calvert County, thereby making it quite impossible for the Waters group, or any subsequent developer, to convey those roads to the various lot owners individually. It is also implicit from how Beltway and the Waters group dealt with each of the unnumbered parcels in Section One and Section Two. In both the 1960 deed from the Browns to Beltway and the 1976 deed from Beltway to the Waters group, the unnumbered parcel lying between Lots 8 and 9 and Lots 7 and 10 in Section One was expressly referred to as a “Reserved Area.” If the lower courts’ analyses were correct, that parcel also would have been subject to ¶ 5.

Yet, in its Supplemental Declaration in 1973, Beltway expressly reserved the right to limit the use of that parcel to the owners of lots 7, 8, 9, 10, and 11, a clear indication that Beltway — the author of the 1972 Declaration — did not regard that “Reserved Area” as being ⁶³⁴ subject to ¶ 5. In 1980, the Waters group conveyed part of the unnumbered waterfront parcel in Section Two to the Mycha-luses, and in 1988, they conveyed another part of it to the Tuckers. Although that parcel had not been formally labeled a “reserved area,” that is clearly what it was. It was an unnumbered parcel shown on the plat of Section Two.

The combination of the conveyance of the roads, the Supplemental Declaration; the conveyance of most of the larger reserved parcel in Section Two to the Mychaluses and the Tuckers, and, finally, the conveyance of the KLLC lot to KLLC, all without any contemporaneous protest from any lot owner in either Section One or Section Two shows convincingly that no one regarded ¶ 5 as a covenant by the Developer, or any successor Developer, to convey any of those areas to the individual lot owners. It was, at best, an option that the Developer retained in the Declaration. The courts below erred in holding otherwise. In light of that conclusion, it is unnecessary for us to consider whether, if such a covenant existed, it would have violated the Rule Against Perpetuities. 4 Express or Implied Easement Although, for a variety of reasons, we seriously doubt whether HOA has any standing to assert any express or implied easement in the KLLC lot, we need not resolve that doubt, as it is clear that Metzger, as a lot-owner in Section Two, has sufficient standing in that regard. 5 ⁶³⁵ The Circuit Court found that the KLLC lot was burdened by an express recreational easement arising from (1) the legend on the plat of Section Two, (2) the fact that the deed from the Browns to Beltway made reference to that plat and conveyed the previously unsold property subject 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,” (3) the 1972 Declaration, and (4) the deed from Beltway to the Waters group, which also contained the “subject to” language found in the deed from the Browns to Beltway.

The court found as well an implied easement from the legend on the plat of Section Two, from the deeds to individual lot owners that referenced that plat, and from the manner in which the lots were marketed. In that last regard, evidence was presented that the plat of Section Two was used in marketing the lots in that section and prospective purchasers were able to access that lot. The Court of Special Appeals decided not to address the issue of an express easement but concluded that an implied easement was created, for the benefit of all 56 lot owners in Sections One and Two, “by the general-plan development.” Kobrine, L.L.C. v. Metzger, supra, 151 Md.App. at 288 , 824 A.2d at 1047 . We find no basis for any express easement.

We do believe, however, that there is a basis for a limited implied easement — limited to the benefit of the 39 numbered lots in Section Two and limited to the kind of recreational uses specified by the Circuit Court. An easement may be created by express grant, by reservation in a conveyance of land, or by implication. In Brehm v. Richards, 152 Md. 126, 132 , 136 A. 618, 620 (1927) ⁶³⁶ and Baltimore & H.R. Co. v. Algire, 63 Md. 319, 320 (1885), this Court held, or at least implied, that an easement by express grant or reservation may be created only “in the mode and manner prescribed by the recording statutes.” Although no words of inheritance are necessary, the instrument must contain “the names of the grantor and grantee, a description of the property sufficient to identify it with reasonable certainty, and the interest or estate intended to be granted.” Maryland Code, § 4-101 of the Real Property Article. In Dubrow-in v. Schremp, 248 Md. 166, 171 , 235 A.2d 722, 724-25 (1967), we limited that requirement to rights of way created by deed and held that a right of way, otherwise sufficiently described, could validly be created by a memorandum that complied with the Statute of Frauds, i.e., a writing signed by the party to be charged or that party’s authorized agent.

Easements by implication may be created in a variety of ways ... by prescription, the filing of plats, necessity, estoppel and implied grant or reservation. See Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630, 635 (1984). The ultimate source of any easement under the facts in this case, other, perhaps, than one by prescription, must be the legend, “Area Reserved For The Use Of Lot Owners,” shown on the unnumbered parcel that became the KLLC lot on the plat of Section Two. In terms of an express easement, by grant or reservation, the