Peters v. Emerald Hills Homeowners' Ass'n

KEHOE, J. As a general rule, a party seeking to establish an easement by express grant or reservation must do so by executing a deed that complies with Maryland’s recording statutes. Nearly fifty years ago, the Court of Appeals recognized an exception to this rule when it concluded that an express easement could be created by a memorandum that satisfied the Statute ³⁴⁰ of Frauds even if the writing was not a deed. Dubrowin v. Schremp, 248 Md. 166, 171 , 235 A.2d 722 (1967). More recently, the Court suggested that a plat could constitute such a memorandum, although the Court concluded that the plat in the case before it did not.

Kobrine v. Metzger, 380 Md. 620, 636-37 , 846 A.2d 403 (2004). This appeal calls us to revisit Dubrowin and Kobrine in order to decide whether a subdivision plat established an express easement to the benefit of an adjoining property. William E. Peters and Victoria A. Peters appeal from a judgment of the Circuit Court for Harford County entering a declaratory decree in favor of the Emerald Hills Homeowners’ Association, Inc. At issue is whether a lot owned by the Peterses is benefitted by an access easement over land owned by the Association. The circuit court concluded that there was neither an express nor an implied easement and granted summary judgment in favor of the Association.

Mr. and Mrs. Peters present a number of issues but the dispositive inquiry boils down to whether an express easement over the parcel in question was established during the subdivision process for what is now the Emerald Hills subdivision. Because we conclude that the answer to this question is “yes,” we will reverse the circuit court’s judgment and remand this case for further proceedings. Background Victor Posner is said to have remarked that “I buy by the mile and sell by the inch.” 1 The “buy by the mile” part of our story occurred in 1969, when a corporation controlled by Posner acquired a 64-acre parcel located near Bel Air, Maryland from William and Margaret Sheppard. This property was adjacent to “Greenridge,” a residential subdivision developed by Posner.

In the deed of conveyance, the Sheppards retained title to a parcel of a little less than an acre. (The ³⁴¹ parties refer to this property as “Parcel 765,” and we will do the same.) Parcel 765 does not front on a public road, so the Sheppards also reserved a non-exclusive right-of-way over a 50’ wide strip (the “Right-of-Way Parcel”) running along a portion of the southerly 2 boundary of Parcel 765. The Right-of-Way Parcel provides access to Southview Road, a public street in the Greenridge subdivision. Parcel 765 is now improved by a residence but when the structure was built is unclear from the record.

The “sell by the inch” process began in 2000, when Posner obtained approval from Harford County to develop what is now called “Emerald Hills,” a residential community adjacent to the Greenridge development. 3 Posner developed Emerald Hills in five phases and, for each phase, he recorded a subdivision plat in the land records. The County approvals for Emerald Hills called for the construction of “Streamview Court,” a 50’ wide public street, partially aligned with South-view Road, the existing street in the adjacent Greenridge subdivision. Separating the two public roads, but included within the Emerald Hills subdivision, is the Right-of-Way Parcel. Streamview Court ends in a cul-de-sac so its terminus does not line up precisely with the rectilinear Right-of-Way Parcel or the equally rectilinear Parcel 765.

However, the cul-de-sac shares points of intersection with each parcel. The parties refer to the interstitial area between the two parcels and the cul-de-sac as the “Triangular Parcel.” It is approximately 800 square feet in area. Parcel 765, the Right-of-Way Parcel and the Triangular Parcel are depicted on one of the five Emerald Hills subdivision plats (the “Plat”). Part of the Plat is reproduced below ³⁴² (the image has been cropped to display the relevant portion and is not to scale): 4 [[Image here]] On the Plat: (1) The Triangular Parcel is marked with slashes, “/ / / /.” A note on the Plat states that these slash marks “denote[] ingress & egress easement for access to Parcel 765.” (2) The Right-of-Way Parcel is marked with reversed slashes, “* * * A note on the Plat states that the reversed slash marks “denote[] existing ingress and egress easement for Parcel 765 as per [the Sheppard Deed].” (3) Both the Right-of-Way Parcel and the Triangular Parcel are shaded in a grey tone. 5 A note on the Plat indicates that this shading “denotes pedestrian and emergency vehicle right-of-way & drainage and utility easement.” (4) The Right-of-Way Parcel, the Triangular Parcel, together with two other parcels not completely depicted on ³⁴³ the excerpt reproduced above, are designated as “Passive Open Space” areas.

(5) Posner signed the Plat as owner. (Posner’s signature is not included in the portion of the Plat reproduced above). The Plat was recorded in the land records in 2000. In 2001, Posner, individually, and on behalf of Posner, LLC, executed and recorded a Cross Easement Agreement.

This agreement recited that Posner was the owner and developer of the Emerald Hills Subdivision and that Posner, LLC was the owner and developer of the Greenridge Subdivision. The purpose and effect of the relevant portions of the Cross Easement Agreement was to grant to the owners of the lots in each subdivision reciprocal, but nonexclusive, rights of access and use to the recreational areas and passive open space areas designated on the Plat as well as the plats for other phases of the Greenridge and Emerald Hills subdivisions. Posner passed away in 2002. In 2006, after a mesne transfer that does not concern us, title to the passive open spaces (including the Triangular Parcel and the Right-of-Way Parcel) in the Emerald Hills Subdivision was conveyed to the Association.

The deed did not contain a metes and bounds or other description of the property conveyed; instead, the deed referred to the Plat and the other Emerald Hills subdivision plats. 6 In 2009, Mr. and Mrs. Peters purchased Parcel 765 from Mr. Sheppard. In 2011, the Peterses applied for an access permit from the County to permit them to construct a driveway on the Triangular Parcel that would allow them to connect to Streamview Court. The County approved the application, and the Peterses commenced construction. The Association filed suit.

Along with prayers for injunctive relief and monetary damages, the Association sought a ³⁴⁴ declaratory judgment that the Triangular Parcel was not subject to an easement for the benefit of Parcel 765. Mr. and Mrs. Peters filed an answer and a motion to dismiss or, in the alternative, for summary judgment. The Association subsequently filed a cross-motion for summary judgment as to its claim for a declaratory judgment. The trial court granted the Association’s motion for summary judgment.

In reaching its decision, the trial court focused on the legal effect of the Plat and the Cross Easement Agreement. As for the Plat, the trial court determined that: A literal interpretation of [the Plat] would seem to indicate that [the Peterses] were entitled by [the Plat] to have the right to use the easement to get on and off of their property. However, the trial court decided that despite the Plat, the Cross Easement Agreement had extinguished any easement attached to Parcel 765. It stated: Even if it is assumed that [the Plat] was intended to give [the owners of Parcel 765] a right to use the [Triangular Parcel] for ingress and egress, this court believes that the actual execution and recording of the [Cross Easement Agreement] [ 7 ] had the effect of extinguishing this right.

The trial court entered a declaratory judgment to that effect. This appeal followed. 8 Analysis Whether a trial judge properly granted a motion for summary judgment is a question of law subject to de novo review. Worsham v. Ehrlich, 181 Md.App. 711, 723 , 957 A.2d 161 (2008). A grant of summary judgment is appropriate when ³⁴⁵ “there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Id.

In construing the Plat, the Cross Easement Agreement, and the other pertinent documents in this case, our role is to “ascertain and give effect to the intention” of the parties. Miller v. Kirkpatrick, 377 Md. 335, 351 , 833 A.2d 536 (2003). In our view, the circuit court was correct in concluding that the Plat was intended to establish an easement to benefit Parcel 765. Whether the Plat accomplished its intended result is a different, and more difficult, question.

As we will explain, we conclude that the Plat was legally sufficient to establish the easement. Neither the Cross Easement Agreement nor any of the other documents cited by the parties changes this result. I. An Express Easement “An easement may be created by express grant, by reservation in a conveyance of land, or by implication.” USA Cartage v. Baer, 429 Md. 199, 208 , 55 A.3d 510 (2012). At both the circuit court and appellate levels, the parties present contentions as to both easements by express grant and easements by implication, specifically, an implied easement established by the recordation of a plat.

Our focus is on easements by express grant. As a general rule, express easements “may be created only ‘in the mode and manner prescribed by the recording statutes.’ ” Kobrine v. Metzger, 380 Md. 620, 636 , 846 A.2d 403 (2004) (quoting Brehm v. Richards, 152 Md. 126, 132 , 136 A. 618 (1927)). 9 There is no deed granting an easement to the ³⁴⁶ Peterses or their predecessors-in-title. This is not necessarily the end of the analysis because, as the Kobrine Court noted, the Court has recognized an exception to the rule enunciated in Brehm and other cases: In Dubrowin v. Schremp, 248 Md. 166, 171 [ 235 A.2d 722 ] (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,[ 10 ] i.e., a writing signed by the party to be charged or that party’s authorized agent. 380 Md. at 636 , 846 A.2d 403 . In Kobrine , the Court examined whether the plat in question met these requirements.

Id. at 636 , 846 A.2d 403 . The Court concluded that the plat did not for several reasons: (1) the plat lacked the name and the signature of the grantor; (2) the plat did not specify which lot owners were intended to benefit from the alleged easement; and (3) the plat did not specify for what purpose the easement was intended to be used. Id. at 636-37 , 846 A.2d 403 . Returning to the case before us, the Plat does not suffer from any of these defects.

First, both the servient estate (the Triangular Parcel) and the dominant estate (Parcel 765) are identified. Second, the nature of the interest that Posner intended to grant is clear because the Plat explicitly states that the Triangular Parcel is subject to an “ingress and egress easement for access to Parcel 765.” Finally, Posner signed ³⁴⁷ the Plat, thus satisfying RP § 5-103. The Court’s reasoning in Kobrine suggests that the Plat establishes an express easement. The Association presents several arguments as to why we should not adopt the conclusion set out in the previous paragraph.

First, it asserts that the facts of Dubrowin v. Schremp, 248 Md. 166 , 235 A.2d 722 (1967), are factually distinguishable. In Dubrowin , an exchange of correspondence between neighboring landowners confirmed an oral understanding between them that Schremp would grant a right-of-way over a portion of his property to the Dubrowins. 248 Md. at 168-69 , 235 A.2d 722 . The issue in the case was whether the letters were sufficient to establish the easement. Id. at 171 , 235 A.2d 722 .

Relying on Brehm, 152 Md. at 132 , 136 A. 618 , the trial court concluded that there was no easement because the letters did not satisfy the requirements of Maryland’s recording statute. Id. The Court of Appeals stated: With this conclusion we do not agree. The holding in Brehm must be confined in its applicability to the facts of that case, or cases like it.

In Brehm , which involved the use by Richards of a bridge constructed by Brehm on his own land, the record showed that there was no communication between Brehm and Richards at the time Richards ... commenced to use the bridge.... Since there had been no agreement between Brehm and Richards, Richards acquired no title in consequence of the fact that Brehm acquiesced in the use of the bridge by Richards for some eight years. In the instant case, it is entirely possible that the Dubrowins may have acquired an easement over the land of the Schremps if the letter written by Schremp on January 29, 195Ip can be regarded as sufficient to take the case out of the Statute of Frauds and if the extent of the encroachment at the time of the writing of the letter can be proved by competent testimony. 248 Md. at 171 , 235 A.2d 722 (emphasis added; citation omitted). ³⁴⁸ The Association’s observation that Dubrowin did not involve a plat is entirely correct but what is important for our purposes is that the Court of Appeals itself applied the Dubroivin analysis in Kobrine , a case that is factually similar in some aspects to the one before us. Posner’s intentions as to the Triangular Parcel were unmistakably expressed on the Plat itself and he signed the Plat.

In our view, the Court’s analysis in Dubrowin is consistent with a conclusion that the Plat established an express easement for the benefit of Parcel 765. 11 Second, the Association points to Md.Code Courts and Judicial Proceedings Article (“CJP”) § 5-901 (1973, 2013 Repl. Vol.) 12 and our decision in MEMC Electronic Materials v. BP Solar; 196 Md.App. 318, 340 , 9 A.3d 508 (2010), to support its contention that: [MJore than a writing is required by the Maryland Statute of Frauds in order for it to be applicable. There must be evidence of a contract or agreement, whether oral or otherwise, between the parties. There was and is no evidence of any such agreement, contract, letter, or promise between Appellants and Appellee regarding the disputed Triangular Area before this action that would support an application of the Statute of Frauds. ³⁴⁹ This argument is not persuasive.

CJP § 5-901, by its plain terms, sets out the circumstances in which contracts must be in writing to be enforceable. The issue before us is not whether the Association is contractually obligated to convey an easement over the Triangular Parcel to the Peterses, or, for that matter, whether Posner was under such an obligation to the Sheppards when he signed the Plat. The relevant question is whether the Plat had the legal effect of subjecting the Triangular Parcel to an easement for the benefit of Parcel 765. To answer that question, we look to RP § 5-103, which we have set out in note 10.

And, as we have explained, Kobrine instructs that a plat that satisfies the requirements of the statute creates an express easement. The Association’s final argument is that the Plat did not establish an easement for the benefit of Parcel 765 because the Plat “is devoid of expressions such as ‘grant,’ ‘convey’ ‘assign,’ or ‘transfer,’ relating to the disputed Triangular Area. There is no language showing a present conveyance or transfer of any interest in realty to Appellants or their predecessors in title.” In support of this contention, the Association cites Bruce v. Dyer, 309 Md. 421 , 524 A.2d 777 (1987). We do not believe that Bruce supports the Association’s