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Opinions – 12/24/14: Maryland Court of Special Appeals


Parol evidence 

BOTTOM LINE: In a case involving a dispute over a landlord’s contractual right to terminate a long-term commercial lease and to require the tenants to renegotiate the terms, the circuit court correctly found that a lease termination provision was unambiguous, and the court thus properly declined to consider the tenants’ extrinsic evidence of the parties’ alleged intentions.

CASE: Huggins v. Huggins & Harrison, Inc., No. 1702, Sept. Term, 2013 (filed Dec. 2, 2014) (Judges Kehoe, ARTHUR & Leahy). RecordFax No. 14-1202-00, 21 pages.

FACTS: Thomas Huggins and his company, TAH, Inc., ran a gasoline and service station and a U-Haul franchise at the property located at 10619 Connecticut Avenue, in Kensington, Maryland. H&H, a Maryland corporation, was the owner and landlord of the property. Before his death in 1993, Thomas Huggins’s father, Francis Huggins, owned all of the shares in H&H.

Upon Francis’s death, his shares went to his wife, Helen Huggins, who became H&H’s president. Mrs. Huggins transferred some of her shares to her children during her lifetime, but remained the majority shareholder until her death on November 13, 2009. Upon Mrs. Huggins’s death, the remaining shares of H&H went to each of her children, including Thomas, in equal percentages. Hence, Thomas was a shareholder of H&H, as were the other Huggins siblings: William Huggins, Harold Huggins, Marion Coleman, Elizabeth Ann Pender, Patricia Mudgett, and Linda Huggins (via an irrevocable trust).

Since 1986, Thomas had operated the gasoline and service station at the property. At first, he operated the station pursuant to a verbal agreement between himself and his late father. In 1993, a few months before Thomas’s father died, he allegedly signed no fewer than three different leases for the property, none of which was fully completed and executed. AT that time, none of the Huggins siblings other than Thomas and Linda knew of any of the 1993 leases.

The other siblings first learned of a 1993 lease some years later, when Thomas told his sister Patricia Mudgett about a potential sublease for the property. In 2002, Patricia and her younger brother William questioned the validity of the 1993 lease. On May 9, 2002, Mrs. Huggins, as president of H&H, signed a formal lease for the property. The lease provided for an initial term of six years, to be followed by six successive terms of six years each (for a total of 42 years).

When Thomas’s siblings learned of the lease, they discussed its implications with their elderly mother. Mrs. Huggins signed an affidavit stating that she had not understood the terms of the lease, and she demanded that Thomas terminate the lease, which he did on June 15, 2002. William then presented Thomas with another lease, which Thomas refused to sign. Thus, there was, at that time, no valid lease for the property.

In the early 2000s, William learned that Montgomery County was undertaking a zoning study of Kensington’s master plan, and he began exploring possibilities for the property. On October 16, 2002, Thomas and H&H (through his mother, Mrs. Huggins) executed temporary lease documents that would apply until the parties could reach a final determination about the property. The parties signed the documents in anticipation of a trip to Europe that Mrs. Huggins planned to take in late 2002. After Thomas’s mother returned from her trip, the parties signed an extension of the October 2002 lease, effective May 31, 2003, so that negotiations could continue.

On August 27, 2003, Thomas (individually and as president of TAH) and Helen Huggins (as president of H&H) signed an addendum, which extended all terms of the October 2002 lease, subject to several new conditions. Specifically, according to sections 2(a)-(d) of the addendum, the lease would terminate upon the first of a number of described events, including the event that that the “appropriate Government officials allow or require a zoning change for the Premises, or a building permit is issued for the development of the Premises, at which time the parties will renegotiate this Lease.” Thus, in sum, the lease documents consisted of the lease of October 16, 2002, the extension of May 31, 2003, and the addendum of August 27, 2003.

Helen Huggins died in November 2009, and her son William succeeded her as H&H’s president in January 2010. In July 2011, the Huggins siblings decided that the property would be advertised for sale or lease. All of the siblings voted in favor of trying to sell or lease the property.

On February 14, 2012, William sent a letter on behalf of H&H to Thomas, citing a right to renegotiate the lease under section 2(a) of the addendum, which, by its terms, was triggered when the “appropriate Government officials allow or require a zoning change for the Premises.” William sent the letter in anticipation of a zoning change for the town of Kensington. When Thomas did not respond, William sent another letter requesting renegotiation.

On March 20, 2012, the County Council for Montgomery County approved a draft of the Kensington Sector Plan which, among other things, would allow for a zoning change for the property. On March 28, 2012, William sent yet another letter to Thomas, in which he again requested renegotiation and stated that the Council had taken a formal vote pertaining to this Kensington Sector Plan. Thomas refused to renegotiate the lease and further indicated that he wanted to pay the same rent that he had been paying since about 1993.

On April 10, 2012, counsel for H&H sent a letter to Thomas, asserting that Thomas had violated the lease by his failure to respond to prior requests for lease renegotiation pursuant to section 2(a) of the addendum and his failure to keep the leased premises in a clean, orderly, and sanitary condition, and notifying Thomas of H&H’s desire to repossess the property. In response, Thomas and TAH filed a lawsuit in the circuit court, seeking declaratory judgment and injunctive relief. While the case was pending, in October 2012, Montgomery County officially rezoned the property, as William Huggins had anticipated.

After denying H&H’s motion for summary judgment, the circuit court found that the pertinent lease provision was unambiguous and, accordingly, declined to consider Thomas’s and TAH’s extrinsic evidence of the parties’ alleged intentions at the time when they drafted the lease. The court declared that, under the language of the pertinent provision, H&H did not have the right to terminate the lease at the time when Thomas and TAH first filed this suit, but that the right to terminate had arisen during the pendency of the suit.

Thomas and TAH appealed to the Court of Special Appeals, which affirmed.

LAW: Under the objective view of contracts, a written contract is ambiguous if, when read by a reasonably prudent person, it is susceptible of more than one meaning. Calomiris v. Woods, 353 Md. 425, 436 (1999). The determination of whether language is susceptible of more than one meaning includes a consideration of the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution. Id. at 436. An ambiguity does not exist simply because a strained or conjectural construction can be given to a word. Dumbarton Improvement Ass’n v. Druid Ridge Cemetery Co., 434 Md. 37, 53 (2013).

Under section 2(a) of the addendum, signed by all parties in August 2003, the lease would terminate upon the first of four described events, one of which was that that the “appropriate Government officials allow or require a zoning change for the Premises, or a building permit is issued for the development of the Premises, at which time the parties will renegotiate this Lease.” The plain language of section 2(a) said nothing to limit its scope only to zoning changes allowed or required in response to a request by H&H. The circuit court examined this section and ruled that a reasonable person at the time of formation would have thought that section 2(a) would apply whenever a zoning change for the Premises was allowed or required or a building permit was issued for the development of the Premises, not just for a particular project, such as the project that H&H briefly explored from around 2003 through 2005.

Under this interpretation, the court further ruled that the zoning change that occurred in October 2012 was a “sufficient basis” for H&H to terminate the lease and to require Thomas and TAH to engage in renegotiations for a new lease agreement. The circuit court correctly concluded that section 2(a) meant only that the lease would terminate, and that H&H could require Thomas and TAH to renegotiate a new lease, when the “appropriate Government officials” either “allow or require” a “zoning change” or issue a building permit. As such, the circuit court correctly concluded that the agreement was unambiguous and correctly declined to use prior or contemporaneous agreements or negotiations to vary or contradict” the written contractual terms. Calomiris, 353 Md. at 432.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Even though Thomas and TAH commenced this lawsuit by requesting a declaratory judgment, they argued that the circuit court exceeded its proper role and authority by declaring the parties’ rights and obligations, because, they claimed, no justiciable controversy was before the court. In view of H&H’s assertions that Thomas and TAH had breached the lease and were obligated to renegotiate the lease, as well as H&H’s contemporaneous threats to repossess the property, there was no serious dispute that antagonistic claims were present and that a declaratory judgment would terminate the controversy. See Md. Code (1974, 2013 Repl. Vol.), §3-409(a)(2) of the Courts and Judicial Proceedings Article. The declaratory judgment did terminate the controversy about whether Thomas and TAH had breached the lease by failing to keep the property in a “clean, orderly, and sanitary condition” and whether Thomas and TAH were obligated to renegotiate the lease in response to the demands that H&H made in early 2012.

The event at issue (the Kensington zoning change) had not yet occurred when H&H first demanded that Thomas and TAH renegotiate, and the zoning change was still in development when Thomas and TAH filed this suit. The parties, however, stipulated that the change had occurred by the time that the circuit court issued its ruling, and it was all but inevitable that further litigation would ensue over whether that provision permitted H&H, in the future, to require renegotiation of the lease. In light of the certain continuation of the dispute, and the transformation of the zoning change from a mere contingency to an undeniable reality, it would have been irresponsible for the court not to exercise its authority to declare H&H’s future right to require renegotiation of the lease under section 2(a) of the addendum.

Because H&H’s rights were based on a state of facts that had already accrued and was neither future, contingent, nor uncertain, the circuit court did not err in issuing a declaration on that subject. Boyds Civic Ass’n v. Montgomery Cnty. Council, 309 Md. 683, 690 (1987).

PRACTICE TIPS: Maryland law generally requires giving legal effect to the clear terms of a contract and bars the admission of prior or contemporaneous agreements or negotiations to vary or contradict a written contractual term. Under the parol evidence rule, a written agreement discharges prior agreements,’ thereby rendering legally inoperative communications and negotiations leading up to the written contract. Parol evidence becomes admissible only when the written words are sufficiently ambiguous.

Real Property


BOTTOM LINE: “Owner’s dedication” in a plat of the county land records, which provided that the plat was covenanted to be and remain a permanent green space buffer into perpetuity, constituted an easement, and the dedication therefore survived all past and future tax sales, remained binding on the assignee and his heirs, successors and assignees, and required the parcel to be maintained as a permanent green space.

CASE: Flores v. Maryland-National Capital Park and Planning Commission, No. 01239, Sept. Term, 2013 (filed Dec. 2, 2014) (Judges Krauser, Wright & RAKER (Retired, Specially Assigned)). RecordFax No. 14-1202-03, 17 pages.

FACTS: Bernando Rene Flores, a resident of Prince George’s County, was the record owner of property consisting of 4.9991 acres, known as Parcel A, and located at 6400 Fallard Drive, Upper Marlboro, Maryland. It was recorded by deed in Libor 6566, folio 658 among the land records of Prince George’s County, Tax Identification No. 15-176149-3. Flores purchased the property from Vijay Tonse in October 2010 for $80,000.

In March 1981, Rodney Faller, the original owner of Parcel A, conveyed the property to Maryland-National Capital Park and Planning Commission (“M-NCPPC”). In June 1981, M-NCPPC conveyed the parcel to the Melwood Citizens Association of Prince George’s County in exchange for $10.00. The Association recorded the plat on July 8, 1982. The plat contained language stating in part that “Melwood Citizens Association of Prince George’s County, Inc. by Gregory A. Hoge, President and Robert R. St. Pierre, Secretary owner of the land shown hereon and described in the Surveyor’s Certificate, hereby adopts this plat of subdivision, establishes the minimum building restriction lines and hereby establishes Parcel ‘A,’ shown hereon, hereby covenanted by Melwood Citizens Association of Prince George’s County, Inc., our heirs, successors and assigns to be and remain a permanent green space buffer into perpetuity, subject, however, only to the establishment on, over, across and through said area of sanitary sewer, storm drain, utility, slope, temporary construction and other easements and/or rights-of-way and further subject to the installation of park or recreational facilities and amenities.”

Shortly after the property was conveyed to Melwood, M-NCPPC approved Preliminary Plan No. 4-80223, which governed the sub-division of the neighborhood, including Parcel A and the surrounding land, imposing conditions upon the plan approval. One condition required approximately 5 acres of land to provide a buffer space between the industrially zoned land and single family residential homes in the sub-division. Melwood filed an open space plat, thereby creating Parcel A.

Melwood did not pay the real estate tax on Parcel A and in February, 1987, Jonathan Wilson purchased Parcel A at a tax sale in Prince George’s County. Wilson’s deed stated that Parcel A was sold “free and clear of all alienations and descents of said property…as well as encumbrances thereon, except easements to which said property is subject and of which said Party of the Second Part has actual or constructive notice.” Wilson failed to pay his taxes, and in 2001 the property was sold at a tax sale, this time to Akila Nayak.

In early 2005, Nayak sold Parcel A to Vijay Tonse. Tonse’s deed, like Nayak’s, and in fact every deed since 1987, specifically referenced plat 114-32. In October 2010, Tonse sold the property to Flores. Flores’s deed, like those of his predecessors, specifically referenced plat 114-32 in its description of the property. Flores tried to develop the property but he needed first to obtain certain permits for development. The Department of Public Works and Transportation declined to issue a Rough Grading & Tree Clearing Permit because of the restrictive language in the Owner’s Dedication.

Flores filed a Declaratory Judgment action in the circuit court against the County and M-NCPPC seeking a declaration that the Dedication was not binding upon him. The parties filed cross motions for summary judgment, and the court entered judgment in favor of the County and M-NCPPC. Flores appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Flores argued that the circuit court erred in finding that the “Owner’s Dedication” in plat NLP 114-32 of the land records of Prince George’s County constituted an easement. Flores’s argument was predicated upon the notion that the restrictive language in the Dedication was a covenant that did not survive the tax sale.

In making this argument, Flores’s first asserted that as a covenant and one to run with the land and binding subsequent owners of the land, there must be vertical privity between the covenentor and the current owner. Specifically, Flores maintained that the covenentor and the current owner must be successors in interest to each other. Here, because Flores bought the land from the County, there was no privity with the former owner who burdened the land. Flores concluded that, given that he acquired the title from a former tax sale purchaser (in whose shoes Flores stood), he had a new and complete title from the sovereign, Prince George’s County.

The second basis for Flores’s position was that the restrictive language was a covenant, not an easement. Flores acknowledged that §14-844(b) of the Tax-Property Article of the Annotated Code of Maryland creates an exception that allows easements of record to survive tax sales. He argued, however, §14-844 did not apply because, as a covenant and not an easement, the Dedication would be extinguished when the property was purchased at the first tax sale. Thus, Flores contended, the restrictive language in the Owner’s Dedication did not survive the tax sale.

Section §14-844(b) states that if the court finds for the plaintiff, the judgment vests in the plaintiff an absolute and indefeasible title in fee simple in the property, free and clear of all alienations and descents of the property occurring before the date of the judgment and encumbrances on the property, except taxes that accrue after the date of sale and easements of record and any other easement that may be observed by an inspection of the property to which the property is subject. §14-844(b). M-NCPPC is a bi-county agency that administers parks and planning in Montgomery and Prince George’s Counties. M-NCPPC works in tandem with the counties to regulate subdivision planning.

Under §23-104 of the Land Use Article of the Maryland Code, M-NCPPC or the governing body of the County may adopt subdivision regulations. These regulations may provide for “the harmonious development of the regional district” and “adequate open spaces for transportation, recreation, light, and air. Id. For individual subdivision plans, the Prince George’s County Planning Board of the M-NCPPC has the power to review and approve subdivision plats, including the ability to modify, approve with conditions or disapprove plats. Subdivision Regulations of Prince George’s County, Maryland, §24-105. M-NCPPC and the County use Dedications to execute their missions. The Maryland Code makes specific references to dedications as a method of subdivision planning.

The dedication sub judice, in this context, has a well-defined technical meaning. A “dedication” is defined as “the donation of land or creation of an easement for public use.” Black’s Law Dictionary 500 (10th Ed. 2014). Under Maryland law, when a parcel of land is dedicated as a street or for other public use, the owner of the land retains his fee simple interest, subject to an easement for the public. Md.-Nat’l Parks & Planning Comm’n v. McCaw, 246 Md. 662, 675 (1967). Both in general legal parlance and under Maryland case law, a dedication creates an easement.

The Owner’s Dedication in this case was an easement for the public. The Dedication was labeled as such and protected an interest associated classically with dedications. See §23-104 of the Land Use Article of the Maryland Code. It contained explicit language binding “heirs, successors and assigns.” Significantly, the MNCPPC created the Dedication as a condition of approval for the surrounding subdivision.

Both the language of the Dedication and the context of its creation suggest that the parties intended to create a permanent easement. Under the clear language of the statute, the judgment vests in the plaintiff an absolute and indefeasible title in fee simple in the property, free and clear of all alienations and descents of the property occurring before the date of the judgment and encumbrances on the property, except taxes that accrue after the date of sale and easements of record. §14-844. A statutory interpretation permitting Flores to defeat the Dedication simply because one of his predecessors happened to purchase the property at a tax sale would undermine the M-NCPPC’s ability to provide for the health, safety and welfare of Maryland’s communities.

Flores’s covenant argument was also without merit. The Dedication stated that the land was covenanted by Melwood Citizens Association of Prince George’s County, Inc. to be and remain a permanent green space buffer into perpetuity. In context, however, “covenanted” was used as a verb. As a verb, “to covenant” means “to promise or undertake in a covenant; to agree formally.” Black’s Law Dictionary 445 (10th Ed. 2014). In this case, the Melwood Citizens Association agreed formally to the Dedication. The use of “covenant” as a verb was appropriate in this context and had no bearing on whether the interest created was a covenant.

Thus, the Dedication in Plat 114-32 created an easement, not a covenant. Privity is not required for an easement to be valid. USA Cartage Leasing, L.L.C. v. Baer, 429 Md. 199, 209 (2012). Therefore, Flores’s argument that no covenant could be binding on him because he was not in vertical privity with Melwood Citizens Association was without merit, as this argument was predicated on his classification of the Dedication as a covenant. There was no allegation that the plat in question, if it categorized as an easement, would not meet the requirements to be and remain valid.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Section 14-844(b) protects “easements of record and any other easement that may be observed by an inspection of the property to which the property is subject” from extinction by tax sales. As discussed, the Dedication contained in Plat 114-32 created an easement. Furthermore, when a deed references a plat, the plat is incorporated as part of that deed. Boucher v. Boyer, 301 Md. 679, 689 (1984). Since Plat 114-32 was mentioned in every deed in Flores’s chain of title, every deed, including Flores’s deed, contained the easement. It was therefore an easement of record. As such, it fell properly within the scope of §14-844.

PRACTICE TIPS: Adverse possession of land in respect to ownership or rights in the land is a concept of title. In other words, if one adversely possesses land for the requisite time, the character of the land is not changed. Rather, what the adverse user achieves is title to the land-ownership.

Real Property


BOTTOM LINE: County planning board did not err by finding that a forest conservation easement encumbered a land lot and that the lot owner had actual and constructive notice of that easement, because the contract of sale of the lot contained clear references to the easement.

CASE: McClure v. Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission, No. 1031, Sept. Term, 2013 (filed Dec. 2, 2014) (Judges Eyler, D., REED & Sonner (Retired, Specially Assigned)). RecordFax No. 14-1202-04, 23 pages.

FACTS: In March 2000, Marquis McClure entered into a contract of sale for a vacant recorded lot in the Fairhill subdivision development in Laytonsville, Maryland. The Fairhill Partners Limited Partnership, a venture arm of the Bozzuto Group, was the developer of the Fairhill subdivision and was selling the lots. Fairhill Partners and McClure contracted for the purchase of Lot 7, a 5.21-acre parcel of land within the subdivision.

Fairhill’s intersection with Montgomery County’s forest conservation laws dated back to 1992. The Fairhill subdivision was originally approved by the Planning Board in 1980 and Preliminary Plan 1-74019R was recorded at Plat 13190 in the land records of Montgomery County. This plan created 19 outlots and 27 lots, which included Lot 7. The Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (“MNCPPC”) approved Preliminary Plan 1-90057 in 1990, which would have converted four of the subdivision’s outlots to lots. That plan expired, however, because the lots were not recorded.

In 1995, Bozzuto approached MNCPPC regarding the development of the 27 extant lots and the potential conversion of up to 5 outlots. In the intervening years between the approval of Preliminary Plan 1-90057 and Bozzuto’s initial discussions with MNCPPC regarding its potential development of Fairhill, the Montgomery County Forest Conservation Law (“MCFCL”), Montgomery Cnty., Md., Code §§22A-1 et seq. (2004), was enacted. In its inquiry to MNCPPC, Bozzuto particularly wished to know whether Fairhill was subject to the forest conservation requirements of the MCFCL. MNCPPC officials explained that the 27 lots would be subject to the new conservation requirements if a new subdivision plan was approved.

Bozzuto, via its Fairhill Partners venture, submitted and received approval of Preliminary Plan 1-96071 from the Planning Board. Approval of the preliminary plan was contingent on the recordation of a final record plat that delineated a forest conservation easement on the lots. A final plat was never completed and recorded, however, nor was the forest conservation easement (“FCE”) specifically marked on the plats for the 27 lots, including Lot 7.

In lieu of recording an updated plat to reflect the FCE, Fairhill Partners executed a Conservation Easement Agreement. The Agreement was recorded in the County’s land records on March 13, 1998. Pursuant to its terms, Fairhill Partners was required to refer specifically to the FCE in any instrument that would convey an interest in property.

McClure and Fairhill Partners settled on Lot 7 in May 2000. The deed that McClure received itself contained no specific reference to the FCE, only a generic clause stating the deed was subject to easements of record. The contract of sale, however, contained clear references to the FCE. By his signature, McClure acknowledged the existence of the FCE. The contract also included a map demonstrating the FCE’s location on the lot.

After closing on his property in 2000, McClure constructed a house. Seeking to fully embrace an agrarian lifestyle, in May 2005, he sought to build a barn and a fence and received permits to that effect. During this period of construction, he learned of the specific boundaries of the FCE. It was also during this period that MNCPPC received a complaint regarding unauthorized clearing and grading activity in the FCE.

McClure and MNCPPC officials held several meetings over the course of the next year regarding the activities on his property and the FCE. In January 2009, the MNCPPC responded to a complaint regarding vehicles and trailers parked in the FCE boundaries. A notice of violation was issued by MNCPPC on January 2009. McClure was issued a civil citation in February 2009. He did not pay the citation, nor did he take remedial action.

The Planning Board proceeded with its administrative enforcement of the FCE and issued a Notice of Hearing alleging that McClure violated the FCE by: 1) cutting grass; 2) installing asphalt and stone; 3) storing and parking trailers; 4) grazing horses; and 5) installing a fence without prior approval. The Planning Board subsequently issued an opinion and order in which it found McClure responsible for four of the five asserted violations of the FCE. It imposed a $102,379 civil penalty and mandated that McClure take certain corrective actions.

McClure sought judicial review of the Planning Board’s decision from the circuit court. The circuit court determined that the FCE was effective and encumbered his property. McClure appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: On appeal, McClure attacked the validity of the FCE, arguing that there was a lack of substantial evidence in the record to demonstrate that the Agreement was properly indexed and, therefore, that he had no actual or constructive notice of the easement. McClure sought to invalidate the Planning Board’s remedial actions by arguing the FCE was not binding upon him because it was not properly indexed in the Montgomery County Land Records as required by the Real Property Article of the Maryland Code, §3-501. In fact, however, there was substantial evidence in the record that McCure received both actual and constructive notice of the easement.

The clerk of the circuit court certified that the Agreement was recorded on March 13, 1998, at 11:52 a.m. in Liber 15627, Folio 293–330. Schedule A to the Agreement set forth with great specificity the boundaries of the FCE. Part 3 of the FCE stated that this part of the easement encumbered a section of McClure’s lot, Lot 7. Part 5 of the FCE similarly encumbered part of Lot 7. Part 6 of the FCE was described as including a section of Lot 7.

A graphical representation of Lot 7 was reproduced and showed the placement of the FCE on McClure’s property. Part 5 of the FCE covered a small, southwesterly segment of Lot 7, and Part 6 similarly covered a small segment in the northwest area of the property. Part 3 of the FCE, however, covered the largest area of Lot 7, a sweeping segment that included the center and northeasterly corner of the lot. Thus, there were very specific descriptions of the FCE on Lot 7 recorded in the County’s land records. These detailed descriptions in the recorded Agreement amounted to substantial evidence of the existence of an FCE on Lot 7.

The general rules for recordation across the entire state are set forth in RP §3-101. See, e.g., Washington Mut. Bank v. Homan, 186 Md. App. 372, 392 (2009). Section 3-101 sets forth the recording requirements across the State for the effectiveness for, among other things, an easement. Unlike §3-101, which is devoted to requirements for the effectiveness or transfer of interests in property, RP §3-501 is narrowly focused on the indexing of instruments in Montgomery County. Critically, the statute explains in no uncertain terms that the validity of an instrument is not affected by non-compliance with the requirements of the section.

In view of the two separate purposes of §§3-101 and 3-501, McClure could not claim that the failure to record the FCE on the specific parcel identifier for Lot 7 rendered the easement invalid, for an instrument is not rendered invalid where an easement is not recorded according to the requirements of §3-501. And, as discussed, the FCE was certainly recorded in the County’s land records. Given this fact of recordation, it was clear that McClure received both actual and constructive notice of the FCE.

The Planning Board possessed the statutory authority to impose an administrative civil penalty on McClure for his violations of the FCE and to issue a corrective order for compliance therewith. The Planning Board’s decision to hold McClure liable for his violations of the FCE was not arbitrary and capricious and was supported by substantial evidence. Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: McClure additionally challenged the Planning Board’s jurisdiction and authority to enforce the FCE. However, the language of the MCFCL’s forest conservation plans requirements demonstrates that deed restrictions, such as an FCE by deed, is one of several methods by which a forest conservation plan may be advanced. Moreover, because the MCFCL lists several other methods for showing the existence of an easement, McClure was incorrect in asserting that replatting of a subdivision was required to denote an FCE.

Furthermore, the legislative intent of the Montgomery County Council was apparent from its 2013 amendment of the MCFCL. See Chesek v. Jones, 406 Md. 446, 462 (2008). The Montgomery County Council’s amendment to §22A-16 clarified the Council’s intent behind the enforcement authority of the Planning Board. To that end, the Council added the phrase “including any easement” after “any associated agreement or restriction” in the prior version of §22A-16(d)(1). This amendment clearly confirmed the Planning Board’s existing authority to impose penalties for violations of the FCE.

Similarly, §22A-17 clearly imbues the Planning Board with the authority to issue an administrative order for violations of the MCFCL. The statute quite directly states that at any time, including during an enforcement action, the Planning Director may issue an administrative order requiring the violator to take one or more described actions within a certain time period specified by the Planning Director, and then goes on to list several remedial actions such as stopping the violation and restoring or reforesting unlawfully cleared areas. See Montgomery Cnty. Code §22A-17(a)(1).

This language was quite clear, and the 2013 amendment went a step further and clarified the Planning Board’s existing enforcement powers. In light of this clear statement of legislative intent, McClure’s argument that the Planning Board lacked the authority to order certain remedial actions was unpersuasive.

PRACTICE TIPS: Unlike actual notice of an easement, where a property owner is directly aware of an encumbrance of his property, constructive notice exists where the owner would be bound by every express encumbrance on his property which he could have found in the records, even if it were not in the direct chain of title.