Assume the owner of Parcel A grants a 25-foot wide easement to the owner of Parcel B, an adjacent parcel, so that the Parcel B owner can use Parcel A to gain access to Parcel B from an existing entrance on Parcel A abutting a public road.
Assume further that:
* the deed containing the easement lacks a description of the easement area,
* the owners of Parcels A and B are unable to agree on the precise location, and
* the Parcel B owner has never used the easement.
Based on these assumptions, where exactly should the 25-foot wide easement be located? At the location specified by the Parcel A owner? Or at the location desired by the Parcel B owner? Or at a location determined by a court?
In a reported decision, the Maryland Court of Special Appeals held that where the parties cannot agree on the location of an unlocated express easement, an equity court has the power to determine the location by balancing the equities of the parties. USA Cartage Leasing, LLC v. Baer, No. 1797 (Sept. Term, 2009, decided Nov. 30, 2011).
The Cartage opinion is an excellent primer on the current state of easement law in Maryland, and sheds light on the meaning of a Maryland statute that requires that a deed contain a description of the property sufficient to identify it with “reasonable certainty.”
Although the court’s decision also addressed defenses of abandonment, estoppel, and adverse possession, the discussion below will focus on the issues of whether the easement lacked a sufficient description or lacked an agreement as to its location, and the balancing analysis developed by courts in analyzing implied easements by necessity cases to locate the express easement on the ground.
A landowner subdivided a lot into two parcels and conveyed one of them to a third party. The deed of conveyance granted the dominant estate owner (Baer) a 25-foot wide non-exclusive easement over the lands of the servient estate owner. The deed did not describe the precise location of the easement but simply referenced the starting point of the easement, which was an existing entrance from a specified public road as shown on a recorded plat.
The dominant estate parcel was subsequently conveyed to others, and some, but not all, of the deeds of conveyance referenced the 25-foot wide easement. The servient estate parcel was subsequently conveyed just once, and the deed did not mention the easement.
Baer never used the easement and, in fact, was unaware of its existence for years. In 2008, Baer filed a declaratory judgment action in the Circuit Court for Washington County against the servient parcel owner (Cartage) asking, among other things, that the court declare the easement valid. The trial court granted Baer’s motion for summary judgment.
With respect to the location of the easement, the trial court rejected Cartage’s proposed location, which was entirely within the shoulder of the abutting public road. Instead, the trial court approved the location of the easement on a plat prepared for Baer, which easement the trial court found was the least burdensome to Cartage yet at the same time provided Baer with reasonable access to his parcel. Cartage then filed an appeal with Maryland’s intermediate appellate court.
Was the description sufficient?
Among the issues raised by Cartage on appeal was whether the easement was legally enforceable. Relying on Section 4-101(a)(1) of the Real Property Article of the Annotated Code of Maryland, Cartage argued that the easement was invalid as a matter of law because the description was insufficient to identify it on the ground with reasonable certainty.
Section 4-101 provides, in pertinent part, that every deed must contain “a description of the property sufficient to identify it with reasonable certainty.” Based on this statute, Cartage contended that a general easement that does not describe the property sufficient to identify it with reasonable certainty runs afoul of Section 4-101.
The Cartage court disagreed, both as a matter of statutory interpretation and an analysis of Maryland decisional law.
The intermediate appellate court observed that Cartage’s reading of the statute would effectively prohibit general easements because they do not describe the easements so as to locate them with “reasonable certainty.”
Cartage’s view of Section 4-101 would also be inconsistent with Maryland case law to the effect that “a general easement can be located through evidence of acts or agreements of the parties occurring after the grant of the easement.” Logically, if an easement can be located after the date of the deed by means of the acts or agreements of the parties, such an easement is not void in the first instance simply because it is described in general terms.
In addition to its statutory construction and case law analysis, the Cartage court drew support for its reading of Section 4-101 from the often-criticized RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES (2000) (“Third Restatement”). The Third Restatement provides that recordation statutes merely require the specific location of the burdened property, not the easement’s specific location.
In holding that the 25-foot wide easement did not violate Section 4-101, the Cartage court relied upon a 1926 Maryland Court of Appeals decision where the grant of an easement was “strikingly similar to the one” in Cartage. Kelly v. Nagle, 150 Md. 125 (1926) (easement’s location was specific as to the point of origin). By contrast, the Cartage court distinguished a 1961 case involving a reservation from a grant for a graveyard and access thereto. McDonough v. Roland Park Co., 189 Md. 659 (1948).
In McDonough, the Court of Appeals held the reservation invalid because, among other things, the reservation gave no indication of where, in the larger estate, the land for the graveyard was situated. The Cartage court ruled that the deed satisfied the description requirements of Section 4-101 because of three attributes: (a) the deed clearly identified the servient estate, (b) the deed provided a fixed starting point for the easement, and (c) the deed specified the width of the easement.
The balancing act
Having determined that the express easement satisfied the requirements of Section 4-101, the Cartage court turned its attention to determining the propriety of applying an equitable analysis used in implied easement by necessity cases to locate the express easement in this case.
Under these cases, “the way of necessity should be located so as to be the least onerous to the owner of the servient estate while, at the same time, being of reasonable convenience to the owner of the dominant estate.” Cartage, at p. 38 (quoting Stair v. Miller, 52 Md. App. 108, 111 (1982)).
Baer, the dominant estate owner, urged the appellate court to employ the “balancing analysis” or the “least onerous/reasonably convenient” standard even though no Maryland appellate court had ever definitively ruled on the issue.
Relying on dicta in Maryland cases, out-of-state case law, the Third Restatement and authoritative real estate treatises, the Cartage court sided with Baer, holding that where the parties are unable to agree on the location of a previously unlocated express easement, “an equity court is empowered to determine the location by balancing the equities of the parties.” Cartage, at p. 46. More specifically, the court held that where:
an express easement has been established without fixing its location, and the location of the easement cannot be established either (a) by reference to a road or way in existence at the time of the deed; (b) by a subsequent unopposed long-term use by the dominant tenant; or (c) by a subsequent agreement of the parties, the court may establish the easement’s location so as to ‘be the least onerous to the owner of the servient estate while, at the same time, being of reasonable convenience to the owner of the dominant estate’ in light of the purposes of the easement.
Cartage, at pp.48-49, citation omitted.
The decision in Cartage is important for several reasons. It represents the first Maryland appellate court to embrace the balancing analysis in locating express easements hinted at in previous appellate decisions. The decision provides helpful guidance in locating previously unlocated express easements, which seems to be a more sensible result than the alternative of rejecting the easement. The balancing analysis is a reasonable means by which to respect and protect the interests of both the dominant and servient estate owners.
Cartage sheds interpretative light on Section 4-101 of the Real Property Article, a statute relied on by transactional lawyers. Practitioners now have useful guidance in determining what constitutes a sufficient description for purposes of that statute. This opinion’s guidance on unlocated express easements may serve to minimize the adverse impact these easements may have on title underwriting for mortgage loans.
The Cartage decision underscores the importance of defining, at the time of drafting the deed or reservation and where possible, the location of an access easement across the servient estate owner’s parcel. Relying on a court to define the contours and location of an express easement will be an expensive and time-consuming process.
Kevin L. Shepherd co-chairs the Real Estate Practice Group of Venable LLP and chairs the firm’s Finance Committee. He is a past chair of the ABA Section of Real Property, Trust and Estate Law, past president of the American College of Real Estate Lawyers, a Fellow of the American College of Mortgage Attorneys and the American Bar Foundation, and a governor of the Anglo-American Real Property Institute. Mr. Shepherd serves as a delegate to the ABA House of Delegates. All rights reserved.©