Wednesday, February 10, 2016

Easements by plat in Maryland, a real thing if you look hard enough.

On January 27, 2016 the Maryland Court of Appeals further clarified our law of easements. In particular, when an easement is deemed to be expressly stated in a record plat, and whether the lower appellate court correctly decided the issue. A short discussion of the lower appellate court decision, with a link to the earlier decision can be found here.

The case involved an homeowner's association seeking to deny access to a homeowner's lot for lack of a recorded easement. The homeowner sought access as it was drawn in a plat, which is not recorded like a deed in the same indices examined during traditional title searching.

Emerald Hills v. Peters allowed the highest Maryland court to examine the statute of frauds, and declare that a record plat sufficient in detail to satisfy the statute of frauds may describe express easements. A simple statement of law, but not one that will limit the amount of future litigation over this very issue.

After acknowledging that the preferred manner of creating express easements is through a deed or other instrument recorded in the land records, the court turned to the record plat at issue in the case.The plat did not contain traditional words used to create or pass interests in land, such as
  • grant
  • convey
  • transfer
  • assign
But the court confirmed that a record plat that otherwise complies with the Statute of Frauds will be enough to create an easement.

I'll leave it for another day to describe the Statute of Frauds, but know that this case expands your risk, as a purchaser of real estate.  Your investigation into whether easements burden your property must now extend beyond what is recorded in the land records, but to record plats that may be filed with County government, but which are not otherwise to be found in the land records.

It also multiplies your risk of litigation as each element of the Statute of Frauds is subject to bona fide dispute-- smart lawyers often differ over whether the elements are satisfied by a particular document. The debate now extends to whether the language of a plat satisfies the Statute, and then to what extent your property is burdened.

Of course, if you buy property in Baltimore City you will already be searching outside the land records to determine proposed condemnation zones- they aren't easements, but they will certainly impact your ownership of the property.

And so, this recent ruling merely confirms that your investigation into a piece of real property must extend well beyond the land records. If it doesn't, you risk buying something with encumbrances that can severely restrict your use and enjoyment of the property.

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