Sunday, February 22, 2015

Easments created by record plat.

Messy and poorly documented land transactions will land you in court. In the February 2, 2015 Peters v. Emerald Hills case, the Maryland Court of Special Appeals prefaced its analysis by observing '[w]e are not holding up what occurred in this case as a model for real estate conveyancing."

Music to a real estate litigation attorney's ears!

In this case, the homeowner's association sought to prevent access by a homeowner over a triangular lot owned by the association. The lot owners argued that their rights to get in and out of their lot came from an easement created in a plat created by the developer.

A plat is not a deed.  It is a drawing filed with the County, and it shows how a development will be laid out. The drawing can show roads, set-backs, wells, woods, driveways, sidewalks and roadways. But a drawing of a driveway does not mean there is a right to maintain that driveway unless there exists an easement.

In this case, the appellate court confirmed that an express access easement can be created on a plat so that it will bind all future owners of the land over which the easement is created.  And in this case, that included the land owned by the homeowner's association. The homeowner's association was thus not permitted to bar the lot owner's access over homeowner association's land.

The basic analysis is simple-- the creation of the easement on the plat must satisfy the Maryland Statute of Frauds, and it must satisfy certain technical requirements of Maryland's recording statutes.  If the plat meets these various criteria, it does not matter that that the easement is not recorded in the land records.


What a mess, indeed.  Easements are created normally through express statements in deeds, and in recorded documents with the word "easement" in the title. You and your transaction attorney must now carefully study the record plats to discern what may, or may not, constitute additional easements that will bind you or your neighbors.  Figure this out before paying good money for land and getting a future lawsuit as a bonus prize!