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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Don't settle for less, you may already have a deal.

Here's your riddle of the day: When is an unsigned settlement agreement really a final settlement agreement?

Answer:  When a judge is persuaded that all the material terms of the deal are written down.

A November 1, 2013 decision of the Maryland Court of Special Appeals affirmed a longstanding belief in the legal community that the absence of a final document is not fatal to a deal.

Post by Young & Valkenet.

This case caught my attention because is had elements that are common to our real estate litigation practice- two adjoining land owners disagreed over ownership of several dozen parking spaces used by their tenants. One sued the other, and the parties began to negotiate a settlement while the court case was squeezing through the circuit court.  As is common in these cases, the court deadlines were pushed back, by agreement, to accommodate the continuing settlement negotiations.

The two sides exchanged written documents, starting with a "letter of intent" that outlined the key terms of the deal, with the promise that both sides would sign a "final document" containing all terms. But as is also common, one side backed out of negotiations.

The reasonable folks pressed to conclude the deal, and were forced to sue in the circuit court to enforce what was perceived to be a settlement of the original dispute.

What a mess!

The circuit court ruled in favor of the agreement, and the appellate court affirmed that decision.  The parties had a final deal, even though all the details had not been fully discussed, and even though a final document was not executed.

Can you be forced into a settlement? Not really.  What you should take from this decision is that an agreement exists when all the MATERIAL terms are established. Think of a sale of a box (full of desirable goodies and widgets).  If you and the seller agree on the contents of the box, the price of the box, and the date of sale, then you likely have a deal.  Later disagreement on the color of the box, whether it arrives by wagon, truck or boat, are not necessarily material to the deal and will not bar enforcement by one side or the other.

Think you have a deal? Tell us all about it.