Peters v. Emerald Hills Homeowners' Ass'n

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 01364

September Term, 2013

WILLIAM E. PETERS, ET UX.,

v.

EMERALD HILLS HOMEOWNERS’
ASSOCIATION, INC.

Graeff,
Kehoe,
Friedman, JJ.

JJ.

Opinion by Kehoe, J.

Filed: February 2, 2015
 As a general rule, a party seeking to establish an easement by express grant or

reservation must do so by executing a deed that complies with Maryland’s recording

statutes. Nearly fifty years ago, the Court of Appeals recognized an exception to this rule

when it concluded that an express easement could be created by a memorandum that

satisfied the Statute of Frauds even if the writing was not a deed. Dubrowin v. Schremp,

248 Md. 166, 171 (1967). More recently, the Court suggested that a plat could constitute

such a memorandum, although the Court concluded that the plat in the case before it did

not. Kobrine v. Metzger, 380 Md. 620, 636–37 (2004). This appeal calls us to revisit

Dubrowin and Kobrine in order to decide whether a subdivision plat established an

express easement to the benefit of an adjoining property.

William E. Peters and Victoria A. Peters appeal from a judgment of the Circuit

Court for Harford County entering a declaratory decree in favor of the Emerald Hills

Homeowners’ Association, Inc. At issue is whether a lot owned by the Peterses is

benefitted by an access easement over land owned by the Association. The circuit court

concluded that there was neither an express nor an implied easement and granted

summary judgment in favor of the Association.

Mr. and Mrs. Peters present a number of issues but the dispositive inquiry boils

down to whether an express easement over the parcel in question was established during

the subdivision process for what is now the Emerald Hills subdivision. Because we

conclude that the answer to this question is “yes,” we will reverse the circuit court’s

judgment and remand this case for further proceedings.
 Background

Victor Posner is said to have remarked that “I buy by the mile and sell by the

inch.”1 The “buy by the mile” part of our story occurred in 1969, when a corporation

controlled by Posner acquired a 64-acre parcel located near Bel Air, Maryland from

William and Margaret Sheppard. This property was adjacent to “Greenridge,” a

residential subdivision developed by Posner. In the deed of conveyance, the Sheppards

retained title to a parcel of a little less than an acre. (The parties refer to this property as

“Parcel 765,” and we will do the same.) Parcel 765 does not front on a public road, so the

Sheppards also reserved a non-exclusive right-of-way over a 50' wide strip (the “Right-

of-Way Parcel”) running along a portion of the southerly2 boundary of Parcel 765. The

Right-of-Way Parcel provides access to Southview Road, a public street in the

Greenridge subdivision. Parcel 765 is now improved by a residence but when the

structure was built is unclear from the record.

The “sell by the inch” process began in 2000, when Posner obtained approval

from Harford County to develop what is now called “Emerald Hills,” a residential

1
As related in his obituary in the New York Times.
http://www.nytimes.com/2002/02/13/business/victor-posner-83-master-of-hostile-takeov
er.html (last visited September 24, 2014).
2
The right of way is actually oriented on a southwesterly/northeasterly axis but we
will refer only to the cardinal points of the compass for simplicity’s sake.
2
community adjacent to the Greenridge development.3 Posner developed Emerald Hills in

five phases and, for each phase, he recorded a subdivision plat in the land records. The

County approvals for Emerald Hills called for the construction of “Streamview Court,” a

50' wide public street, partially aligned with Southview Road, the existing street in the

adjacent Greenridge subdivision. Separating the two public roads, but included within

the Emerald Hills subdivision, is the Right-of-Way Parcel. Streamview Court ends in a

cul-de-sac so its terminus does not line up precisely with the rectilinear Right-of-Way

Parcel or the equally rectilinear Parcel 765. However, the cul-de-sac shares points of

intersection with each parcel. The parties refer to the intersticial area between the two

parcels and the cul-de-sac as the “Triangular Parcel.” It is approximately 800 square feet

in area.

Parcel 765, the Right-of-Way Parcel and the Triangular Parcel are depicted on one

of the five Emerald Hills subdivision plats (the “Plat”). Part of the Plat is reproduced

below (the image has been cropped to display the relevant portion and is not to scale):4

3
This subdivision was developed in phases. Earlier phases were known as
“Greenbriar Hills.” At some point, the name of the development was changed to Emerald
Hills.
4
We have added identifiers for Parcel 765, the Triangular Parcel, Streamview
Court, and the Right-of-Way Parcel, as well as enhanced the borders around the Right-
of-Way Parcel.
3
On the Plat:

(1) The Triangular Parcel is marked with slashes, “/ / / /.” A note on the Plat states
that these slash marks “denote[] ingress & egress easement for access to Parcel
765.”

(2) The Right-of-Way Parcel is marked with reversed slashes, “\ \ \ \.” A note on
the Plat states that the reversed slash marks “denote[] existing ingress and egress
easement for Parcel 765 as per [the Sheppard Deed].”

(3) Both the Right-of-Way Parcel and the Triangular Parcel are shaded in a grey
tone.5 A note on the Plat indicates that this shading “denotes pedestrian and
emergency vehicle right-of-way & drainage and utility easement.”

(4) The Right-of-Way Parcel, the Triangular Parcel, together with two other parcels
not completely depicted on the excerpt reproduced above, are designated as
“Passive Open Space” areas.

5
The grey shading and the slash marks are quite distinct on the copy of the Plat
included in the record. They are is much less so on the digitally scanned image
reproduced in this opinion.
4
 (5) Posner signed the Plat as owner. (Posner’s signature is not included in the
portion of the Plat reproduced above).

The Plat was recorded in the land records in 2000. In 2001, Posner, individually,

and on behalf of Posner, LLC, executed and recorded a Cross Easement Agreement. This

agreement recited that Posner was the owner and developer of the Emerald Hills

Subdivision and that Posner, LLC was the owner and developer of the Greenridge

Subdivision. The purpose and effect of the relevant portions of the Cross Easement

Agreement was to grant to the owners of the lots in each subdivision reciprocal, but non-

exclusive, rights of access and use to the recreational areas and passive open space areas

designated on the Plat as well as the plats for other phases of the Greenridge and Emerald

Hills subdivisions.

Posner passed away in 2002. In 2006, after a mesne transfer that does not concern

us, title to the passive open spaces (including the Triangular Parcel and the Right-of-Way

Parcel) in the Emerald Hills Subdivision was conveyed to the Association. The deed did

not contain a metes and bounds or other description of the property conveyed; instead, the

deed referred to the Plat and the other Emerald Hills subdivision plats.6

In 2009, Mr. and Mrs. Peters purchased Parcel 765 from Mr. Sheppard. In 2011,

the Peterses applied for an access permit from the County to permit them to construct a

6
Specifically, the deed stated that it passed title to “All that property referred to as
‘Passive Open Space’ . . . as shown on [the various Emerald Hills subdivision plats] and
recorded in the Land Records of Harford County.”

5
driveway on the Triangular Parcel that would allow them to connect to Streamview Court.

The County approved the application, and the Peterses commenced construction.

The Association filed suit. Along with prayers for injunctive relief and monetary

damages, the Association sought a declaratory judgment that the Triangular Parcel was

not subject to an easement for the benefit of Parcel 765.

Mr. and Mrs. Peters filed an answer and a motion to dismiss or, in the alternative,

for summary judgment. The Association subsequently filed a cross-motion for summary

judgment as to its claim for a declaratory judgment. The trial court granted the

Association’s motion for summary judgment. In reaching its decision, the trial court

focused on the legal effect of the Plat and the Cross Easement Agreement. As for the Plat,

the trial court determined that:

A literal interpretation of [the Plat] would seem to indicate that [the
Peterses] were entitled by [the Plat] to have the right to use the easement to
get on and off of their property.

However, the trial court decided that despite the Plat, the Cross Easement

Agreement had extinguished any easement attached to Parcel 765. It stated:

Even if it is assumed that [the Plat] was intended to give [the owners of
Parcel 765] a right to use the [Triangular Parcel] for ingress and egress, this
court believes that the actual execution and recording of the [Cross
Easement Agreement][7] had the effect of extinguishing this right.

7
The circuit court’s written opinion refers to “the specific easement in 2007.” So
far as we can determine from the record, there was no easement executed in 2007.
Language in the declaratory judgment itself makes it clear that the circuit court was
referring to the Cross Easement Agreement.
6
 The trial court entered a declaratory judgment to that effect. This appeal followed.8

Analysis

Whether a trial judge properly granted a motion for summary judgment is a

question of law subject to de novo review. Worsham v. Ehrlich, 181 Md. App. 711, 723

(2008). A grant of summary judgment is appropriate when “there is no genuine dispute as

to any material fact and the party in whose favor judgment is entered is entitled to

judgment as a matter of law.” Id. In construing the Plat, the Cross Easement Agreement,

and the other pertinent documents in this case, our role is to “ascertain and give effect to

the intention” of the parties. Miller v. Kirkpartick, 377 Md. 335, 351 (2003).

In our view, the circuit court was correct in concluding that the Plat was intended to

establish an easement to benefit Parcel 765. Whether the Plat accomplished its intended

result is a different, and more difficult, question. As we will explain, we conclude that the

Plat was legally sufficient to establish the easement. Neither the Cross Easement

Agreement nor any of the other documents cited by the parties changes this result.

I. An Express Easement

“An easement may be created by express grant, by reservation in a conveyance of

land, or by implication.” USA Cartage v. Baer, 429 Md. 199, 208 (2012). At both the

circuit court and appellate levels, the parties present contentions as to both easements by

express grant and easements by implication, specifically, an implied easement established

8
The Association dismissed its trespass claim before the Peterses filed their notice
of appeal.
7
by the recordation of a plat. Our focus is on easements by express grant.

As a general rule, express easements “may be created only ‘in the mode and manner

prescribed by the recording statutes.’” Kobrine v. Metzger, 380 Md. 620, 636 (2004)

(quoting Brehm v. Richards, 152 Md. 126, 132 (1927)).9 There is no deed granting an

easement to the Peterses or their predecessors-in-title. This is not necessarily the end of the

analysis because, as the Kobrine Court noted, the Court has recognized an exception to the

rule enunciated in Brehm and other cases:

In Dubrowin v. Schremp, 248 Md. 166, 171 (1967), we limited that
requirement to rights of way created by deed and held that a right of way,
otherwise sufficiently described, could validly be created by a memorandum

9
There are two relevant recording statutes:

Md. Code Real Property Article (“RP”) § 3-101(a) (1974, 2010 Repl. Vol.)
provides in pertinent part:

(a) Except as otherwise provided in this section, no estate of
inheritance or freehold, declaration or limitation of use, estate above seven
years, or deed may pass or take effect unless the deed granting it is
executed and recorded.

(b) Subsection (a) of this section does not limit any other method of
transferring or creating an estate, declaration, or limitation which is
permitted by the law of the State except to the extent required by law.

RP § 4-101(a)(1) provides:

Any deed containing the names of the grantor and grantee, a description of
the property sufficient to identify it with reasonable certainty, and the
interest or estate intended to be granted, is sufficient, if executed,
acknowledged, and, where required, recorded.
8
 that complied with the Statute of Frauds,[10] i.e., a writing signed by the party
to be charged or that party's authorized agent.

380 Md. at 636.

In Kobrine, the Court examined whether the plat in question met these

requirements. Id. at 636. The Court concluded that the plat did not for several reasons: (1)

the plat lacked the name and the signature of the grantor; (2) the plat did not specify

which lot owners were intended to benefit from the alleged easement; and (3) the plat did

not specify for what purpose the easement was intended to be used. Id. at 636–37.

Returning to the case before us, the Plat does not suffer from any of these defects.

First, both the servient estate (the Triangular Parcel) and the dominant estate (Parcel 765)

are identified. Second, the nature of the interest that Posner intended to grant is clear

because the Plat explicitly states that the Triangular Parcel is subject to an “ingress and

egress easement for access to Parcel 765.” Finally, Posner signed the Plat, thus satisfying

RP § 5-103. The Court’s reasoning in Kobrine suggests that the Plat establishes an

express easement.

The Association presents several arguments as to why we should not adopt the

conclusion set out in the previous paragraph. First, it asserts that the facts of Dubrowin v.

10
RP § 5-103 provides in relevant part:

No corporeal estate, leasehold or freehold, or incorporeal interest in land
may be assigned, granted, or surrendered, unless it is in writing signed by
the party assigning, granting, or surrendering it, or his agent lawfully
authorized by writing, or by act and operation of law.
9
Schremp, 248 Md. 166 (1967), are factually distinguishable.

In Dubrowin, an exchange of correspondence between neighboring landowners

confirmed an oral understanding between them that Schremp would grant a right-of-way

over a portion of his property to the Dubrowins. 248 Md. at 168–69. The issue in the case

was whether the letters were sufficient to establish the easement. Id. at 171. Relying on

Brehm, 152 Md. at 132, the trial court concluded that there was no easement because the

letters did not satisfy the requirements of Maryland’s recording statute. Id. The Court of

Appeals stated:

With this conclusion we do not agree. The holding in Brehm must be
confined in its applicability to the facts of that case, or cases like it. In
Brehm, which involved the use by Richards of a bridge constructed by
Brehm on his own land, the record showed that there was no
communication between Brehm and Richards at the time Richards . . .
commenced to use the bridge . . . . Since there had been no agreement
between Brehm and Richards, Richards acquired no title in consequence of
the fact that Brehm acquiesced in the use of the bridge by Richards for some
eight years.

In the instant case, it is entirely possible that the Dubrowins may
have acquired an easement over the land of the Schremps if the letter written
by Schremp on January 29, 1954 can be regarded as sufficient to take the
case out of the Statute of Frauds and if the extent of the encroachment at the
time of the writing of the letter can be proved by competent testimony.

248 Md. at 171 (emphasis added; citation omitted).

The Association’s observation that Dubrowin did not involve a plat is entirely

correct but what is important for our purposes is that the Court of Appeals itself applied

the Dubrowin analysis in Kobrine, a case that is factually similar in some aspects to the

10
one before us. Posner’s intentions as to the Triangular Parcel were unmistakably

expressed on the Plat itself and he signed the Plat. In our view, the Court’s analysis in

Dubrowin is consistent with a conclusion that the Plat established an express easement for

the benefit of Parcel 765.11

Second, the Association points to Md. Code Courts and Judicial Proceedings

Article (“CJP”) § 5-901 (1973, 2013 Repl. Vol.)12 and our decision in MEMC Electronic

Materials v. BP Solar, 196 Md. App. 318, 340 (2010), to support its contention that:

[M]ore than a writing is required by the Maryland Statute of Frauds in order
for it to be applicable. There must be evidence of a contract or agreement,
whether oral or otherwise, between the parties. There was and is no
evidence of any such agreement, contract, letter, or promise between
Appellants and Appellee regarding the disputed Triangular Area before this
action that would support an application of the Statute of Frauds.

11
The Dubrowin Court noted that its holding did not extend to cases “involv[ing]
the rights of third parties who had no actual notice of the easement.” We note that the
Association did not dispute that it had notice; additionally the Plat was recorded, thus
providing third parties with notice.
12
CJP § 5-901 provides:

Unless a contract or agreement upon which an action is brought, or some
memorandum or note of it, is in writing and signed by the party to be
charged or another person lawfully authorized by that party, an action may
not be brought:
(1) To charge a defendant on any special promise to answer for the debt,
default, or miscarriage of another person;
(2) To charge any person on any agreement made on consideration of
marriage; or
(3) On any agreement that is not to be performed within 1 year from the
making of the agreement.

11
 This argument is not persuasive. CJP § 5-901, by its plain terms, sets out the

circumstances in which contracts must be in writing to be enforceable. The issue before us

is not whether the Association is contractually obligated to convey an easement over the

Triangular Parcel to the Peterses, or, for that matter, whether Posner was under such an

obligation to the Sheppards when he signed the Plat. The relevant question is whether the

Plat had the legal effect of subjecting the Triangular Parcel to an easement for the benefit

of Parcel 765. To answer that question, we look to RP § 5-103, which we have set out in

note 10. And, as we have explained, Kobrine instructs that a plat that satisfies the

requirements of the statute creates an express easement.

The Association’s final argument is that the Plat did not establish an easement for

the benefit of Parcel 765 because the Plat “is devoid of expressions such as ‘grant,’

‘convey,’ ‘assign,’ or ‘transfer,’ relating to the disputed Triangular Area. There is no

language showing a present conveyance or transfer of any interest in realty to Appellants

or their predecessors in title.” In support of this contention, the Association cites Bruce v.

Dyer, 309 Md. 421 (1987). We do not believe that Bruce supports the Association’s

position.

At issue in Bruce was whether the parties’ tenancy by the entireties was severed by

the terms of their marital separation agreement, which called for the parties to list the

marital residence for sale and to divide any proceeds. Id. at 424–25. The Court of Appeals

concluded that the separation agreement did not sever the estate. Id. at 438. The Court

12
explained that, at common law, spouses who desired to sever a tenancy by the entireties

could do so only through a straw deed and that the General Assembly had changed the

common law rule by enacting what is now codified as RP § 4-108(b).13 The Court stated

that, although the statute had eliminated the necessity for a straw conveyance, the statute

had not changed the requirement that, short of death or an absolute divorce, a tenancy by

the entirety could be severed only by deed. The Court concluded that the separation

agreement was not the effective equivalent of a deed because it lacked terms, such as

“grant,” “convey,” or “assign” expressing an intent to convey a present interest in the

property. Id. at 432.

The result in Bruce turned, in very large part, on the Court’s interpretation of RP §

4-108(b) as requiring a deed to sever a tenancy by the entireties.14 In contrast, Kobrine

makes it clear that, under certain circumstances, a deed is not required to create an

easement. Rather, an easement can be established by a plat if the plat is signed by the

13
RP § 4-108(b) provides in pertinent part:

Any interest in property held by a husband and wife in tenancy by the
entirety may be granted, . . . (2) by both acting jointly, to either husband or
wife and any other person in joint tenancy or tenancy in common; and (3)
by either acting individually to the other in tenancy in severalty, without the
use of a straw man as an intermediate grantee-grantor.
14
The Bruce Court’s ultimate conclusion was based on additional factors that are
not relevant to the issue before us, including the Court’s construction of other terms of
the separation agreement. See 309 Md. at 433–34 (“[T]o read the contract as providing
for an immediate termination of the entireties estate would amount to supplying a term
completely absent from the existing written language.”).
13
owner, specifically identifies the servient and dominant estates, and is clear as to the rights

to be enjoyed by the dominant estate. The Plat meets all of these requirements and

accordingly satisfies the Statute of Frauds.

For these reasons, we hold that the Plat established an access easement over the

Triangular Parcel for the benefit of Parcel 765.15 16 We will now address the parties’

contentions as to the 2001 Cross Easement Agreement.

II. The Cross Easement Agreement

The trial court reasoned that even if the Plat had created an easement benefitting

Parcel 765, the Cross Easement Agreement extinguished any such easement. It concluded

that, because Posner was responsible for recording both the Plat and the Cross Easement

Agreement, he would have specifically referenced the easement over the Triangular

Parcel if he had intended to reserve the easement.

15
The Association also asserts that, at the time the Plat was recorded, “Harford
County, Maryland [did] not deem the plat as a conveying instrument . . . . Appellants
have failed to identify any Maryland appellate case that holds to the contrary.” This
argument places the shoe on the wrong foot. What is necessary to pass title to interests in
real property is a matter of state law, specifically, the provisions of the Real Property
Article that we have previously discussed, as well as the opinions of the Court of
Appeals and this Court interpreting them. The proposition that Harford County can vary
state law in this respect is without foundation. See McClure v. Montgomery Count
Planning Board, ___ Md. App. ___, No. 1031, September Term, 2013, slip op. at 11
(filed December 2, 2014) (“The general rules for recordation across the entire state . . .
are set forth in RP § 3-101.” (citing Washington Mut. Bank v. Homan, 186 Md. App.
372, 392 (2009)).
16
Because we have concluded that the Plat established an express easement, it is
not necessary to address the parties’ implied easement contentions.
14
 Mr. and Mrs. Peters contend that this conclusion of the trial court was error, and

that the Cross Easement Agreement in fact created an express easement over the

Triangular Parcel. The contention stems from the portion of the Cross Easement

Agreement entitled “nature of the rights granted,” wherein the Cross Easement Agreement

states that:

The easements, restrictions, benefits and obligations set forth in [the Cross
Easement Agreement] shall create mutual and reciprocal easements,
restrictions, benefits and servitudes upon the land identified as Open Space
on the plats enumerated in Schedule A and B, running with the land, which
all be perpetual.

The Peterses assert that, because the Plat is one of the plats listed in Schedule B of

the Cross Easement Agreement, the ingress and egress easement language contained in

the legend of the Plat was affirmed by the Cross Easement Agreement.

The Association counters that the Cross Easement Agreement could not, and did

not, affirm any easement contained in the Plat. It argues that the fact that the Cross

Easement Agreement was by and between Posner and Posner’s LLC, and only contains a

right of easement for the lot owners of the Greenridge and Emerald Hills subdivisions,

means that the Peterses have no right to an easement under the Cross Easement

Agreement.

We agree with neither the trial court nor the parties. We will begin with the

Peterses’ contentions. The Cross Easement Agreement is, in effect, a deed and Maryland

courts construe deeds by using the rules of interpretation of contracts. See, e.g., John B.

15
Parsons Home v. John B. Parsons Foundation, 217 Md. App. 39, 54 (2014) (“‘In

construing the language of a deed, the basic principles of contract interpretation apply.’”

(quoting Olde Severna Park Improvement Ass’n v. Barry, 188 Md.App. 582, 611 (2009)).

One of these principles is that we search for the parties’ intent by considering the

instrument as a whole. John B. Parsons, 217 Md. App. at 54; Gunby v. Olde Severna

Park Improvement Ass’n, 174 Md.App. 189, 242 (2007).17 The purpose of this exercise is

to discern “what a reasonable person in the position of the parties would have meant at the

time it was effectuated[.]” White v. Pines Community Improvement Ass’n, 403 Md. 13, 32

(2008) (interior citation and quotation marks omitted).

The Cross Easement Agreement evidences an intent by Posner and Posner, LLC

“to create reciprocal easements to permit lot owners of the property shown on the said

enumerated plats to enjoy a common right to use and enjoy the open space areas,

including ‘Passive Open Space’ areas depicted on said plats[.]” (Emphasis added.) The

Cross Easement Agreement does not explicitly define the term “lot” but we have no

difficulty in concluding that Parcel 765 is not a “lot”—in the sense used in the Cross

Easement Agreement—of either the Emerald Hills or the Greenridge subdivisions.

This conclusion is based on the fact that the recitals in the Cross Easement

Agreement state that Posner and Posner, LLC were the owners of property—“portion[s]

17
Another principle of construction is that “‘[w]e construe a deed without resort to
extrinsic evidence, if the deed is not ambiguous.’” John B. Parsons, 217 Md. App. at 54-
55 (quoting Goss v. C.A.N. Wildlife Trust, 157 Md. App. 447, 459 (2004). Neither party
suggests that the Cross Easement Agreement is ambiguous.
16
of which have been subdivided to create certain residential lots and open space as . . .

more fully set on [the] [p]lats” referenced in an exhibit. Moreover, the Cross Easement

Agreement recited that:

As a condition of preliminary plat approval for the said . . . plats, the
Department of Planning and Zoning did require [Posner and Posner, LLC]
to create reciprocal easements to permit lot owners of the property shown on
said . . . plats to enjoy a common right to use and access the open space
areas . . . depicted on said . . . plats . . . .

To be sure, Lot 765 is depicted on the Plat but that is because it is an abutting

parcel, not because it was established through the subdivision processes that resulted in

the Greenridge and Emerald Hills subdivisions. It would have been illogical for Posner

and his limited liability company alter ego to grant to the owner of an adjacent property

rights to use all of the two subdivisions’ recreational areas on an equal footing with the

owners of lots within the subdivisions. Thus, we conclude that the owners of Parcel 765

were not intended to be beneficiaries of the easements created by the Cross Easement

Agreement.18

On the other hand, we do not believe that the Cross Easement Agreement

extinguished the easement benefitting Parcel 765. As discussed, supra, the Cross

Easement Agreement was for the express and exclusive purpose of granting reciprocal

18
In 2001, Brenda Nestor, Posner’s personal representative, executed a declaration
of covenants for the Emerald Hills subdivision. Mr. and Mrs. Peters argue that the terms
of the Emerald Hills declaration of covenants establish an easement for their benefit over
the Triangular Parcel. The contention fails for the same reason that their Cross Easement
Agreement argument is unpersuasive—there is simply no indication in the declaration
that the Ms. Nestor intended the covenants to benefit the owner of Parcel 765.
17
rights of access over the passive open spaces to the owners of the lots established by the

various subdivision plats. Paragraph 2 of the Cross Easement Agreement explicitly states

that the easements established by it are “non-exclusive.” We see no conflict between the

access easement and the Association’s members’ non-exclusive rights to use and enjoy the

passive open space areas in the subdivision.

We are not holding up what occurred in this case as a model for real estate

conveyancing. It would have been preferable for Posner to have executed a deed to the

Sheppards when he recorded the Plat in 2000. However, judicial interpretation of

instruments affecting title to real estate is usually a search for intent. In this case, the

relevant intent was that of Victor Posner and, as we have explained, his intentions were

explicit. The Plat very clearly identifies the dominant and subordinate estates as well as

the nature of the easement and was signed by Posner. In other words, the Plat satisfies the

criteria set out by the Court of Appeals in Kobrine v. Metzger.

We do not believe that our conclusion works any particular hardship on the

Association. The granting clause of the 2006 deed conveying the open space parcels to

the Association did not contain any description of the property conveyed but instead

expressly referred to the Emerald Hills subdivision plats, including the Plat. Moreover,

the Association took title to the property with constructive knowledge of the easement.

See, e.g., Lindsay v. Annapolis Roads Prop. Owners Ass’n, 431 Md. 274, 291 (2013)

(“Under the common law, a reference to a plat in a deed incorporates generally that plat as

18
part of the deed.”).

III. Proceedings On Remand

In conclusion, we hold that (1) the Subdivision Plat established an express access

easement over the Triangular Parcel for the benefit of Parcel 765; and (2) the Cross

Easement Agreement had no effect on the access easement. Therefore, the circuit court

erred in granting the Association’s motion for summary judgment and in denying the

summary judgment motion of Mr. and Mrs. Peters. We reverse the court’s judgment and

remand this case to the court so that it can enter a declaratory judgment consistent with

this opinion.

THE JUDGMENT OF THE CIRCUIT COURT FOR
HARFORD COUNTY IS REVERSED AND THIS CASE IS
REMANDED TO IT FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION.

APPELLEE TO PAY COSTS.

19