Relating to Real Estate

In Emerald Hills Homeowners’ Association, Inc. v. Peters, No. 32, Sept. Term, 2015 (Md.Ct.App. Jan. 27, 2016) the Court of Appeals held that an easement may be created by a plat even without compliance with the requirements of the Maryland recording statute. Also, the Court held that because the beneficiaries of the easement were not parties to a subsequently recorded document, that document could not have had the effect of terminating the easement.

In reaching this result, the Court of Appeals affirmed the decision of the Court of Special Appeals in Peters v. Emerald Hills Homeowners’ Association, Inc. v. Peters, 221 Md. App. 338 (2015), which reversed the decision of the Circuit Court for Harford County. The circuit court had found that an easement in favor of the Peters lot did not exist. SeeRelating to Real Estate, May, 2015.

Mr. and Mrs. William Peters purchased a lot near Bel Air and wanted to build a house on it. The lot had been reserved by the Peters’ seller in an earlier conveyance when he sold a 64-acre tract to Victor Posner. The lot did not have direct access to a public street, but it was shown on a recorded plat, and notations on the plat gave the lot a non-exclusive easement over two small parcels that led to a public road.

In Kobrine v. Metzer, 380 Md. 620, 636 (2004), the Court of Appeals set forth the “general rule” that express easements “may be created only ‘in the mode and manner presented by the recording statutory.’” But the Kobrine Court went on to state that an easement could also be validly created by a memorandum that complies with the Statute of Frauds (§5-103 of the Real Property Article of the Maryland Code). The Court of Appeals also cited Dubrowin v. Schremp, 248 Md. 166 (1967), which held that only deeds are required to be created in the manner set forth in the recording statute, and that easements may be otherwise created so long as they comply with the Statute of Frauds. Because the Court of Appeals found that the plat complied with the Statute of Frauds and that the easement area was sufficiently described on the plat, the plat created an express easement. Note that this enables an express easement to be created without a word such as “grant,” “convey,” “assign,” or “transfer.”

The homeowners’ association claimed that if an easement were created, it was terminated when Victor Posner and Posner, LLC executed and recorded a cross easement agreement. However, the Court of Appeals noted that the owner of a servient tenement may not unilaterally change an easement. Because Mr. and Mrs. Peters, the owners of the dominant estate, were not parties to the cross easement agreement, the cross easement agreement could not terminate the easement.

For questions, please contact Ed Levin (410) 576-1900.