• Covenant that Property Serve as a Perpetual Buffer Zone Survived Tax Sales
  • April 15, 2015 | Author: Travis W. Dalton
  • Law Firm: Gordon Feinblatt LLC - Baltimore Office
  • In Bernando Rene Flores v. Maryland-National Capital Park and Planning Commission et al., No. 01239, Sept. Term 2013 (Md. Ct. Spec. App. December 2, 2014), the Court of Special Appeals affirmed the Circuit Court for Prince George’s County’s decision that an “Owner’s Dedication” constituted an easement and, therefore, survived tax sales of the subject property under § 14-844(b) of the Tax-Property Article of the Maryland Code (“T-P”).

    In 1981, the Maryland-National Capital Park and Planning Commission (the “M-NCPPC”) acquired title to approximately five acres of unimproved property in Upper Marlboro, and shortly thereafter it conveyed the property to the Melwood Citizens Association (the “Association”). M-NCPPC then approved a preliminary plan governing the subdivision of the neighborhood on the condition that approximately five acres be provided for a buffer space between industrial zoned land and single family residential homes in the subdivision. The Association recorded a plat (the “Plat”) on July 8, 1982, with an Owner’s Dedication that established Parcel A as a green space buffer in perpetuity.

    The Association did not pay the real estate taxes on Parcel A, which was sold at tax sale in February 1987. At that sale, Jonathan Wilson purchased Parcel A free of all encumbrances “except easements to which [Parcel A was subject]” and of which he had actual or constructive notice. Wilson did not pay the taxes on the property, and, in 2001, the property was sold at a tax sale to Akila Nayak. In 2005, Nayak sold the property to Vijay Tonse, and, in 2010, Tonse sold the property to the appellant, Flores. All of the deeds since 1987 specifically referenced the Plat.

    Flores attempted to develop Parcel A but was denied a rough grading and tree clearing permit because of the restrictive language in the Owner’s Dedication. The M-NCPPC explained that, until the lands abutting Parcel A are no longer used for residential purposes, the use of Parcel A is limited to a permanent green space buffer as established by the Prince George’s County Planning Board of the M-NCPPC in the approval of the preliminary plan of subdivision for the property.

    Flores sought a declaration in the Circuit Court for Prince George’s County that the Owner’s Dedication was not binding upon him. He argued that the Owner’s Dedication was extinguished when the property was sold at a tax sale to one of his predecessors in title. The Circuit Court, however, agreed with Prince George’s County and the M-NCPPC, finding that the Owner’s Dedication created an easement for public use and stated that “the tax sale [did] not extinguish the easement created by the [D]edication. The intent of the statute [T-P § 14-844(b)] was the elimination of private encumbrances, such as mortgages, not public encumbrances of record, such as recorded green space buffers, as they are not affected by tax sales.”

    Flores appealed to the Court of Special Appeals arguing that the restrictive language in the Owner’s Dedication did not survive the tax sale because the restrictive language created a covenant that would be extinguished if vertical privity did not exist between the current owner and the creator of the covenant. He contended that because Prince George's County was an interim seller of the property (twice), vertical privity did not exist. Flores also argued that T-P § 14-844(b) was not applicable because the restrictive language was a covenant. Flores relied on the fact that the Owner’s Dedication specifically stated that the land is “covenanted by Melwood Citizens Association of Prince George’s County, Inc., . . . to be and remain a permanent green space buffer in perpetuity . . . .”

    To address Flores’s arguments, the Court of Special Appeals initially noted the language of T-P § 14-844(b), which provides:

    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.

    (Emphasis added.) The Court of Special Appeals also noted that the word “dedication” (e.g., the Owner’s Dedication) had a well-defined technical meaning, i.e., “the donation of land or creation of an easement for public use.” Under Maryland case law, “[w]hen 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.” (Citing Windsor Resort Inc. v. Mayor and City Council of Ocean City, 71 Md. App. 476, 483, 526 A.2d 102, 105 (1987)).

    The Court of Special Appeals determined that the Owner’s Dedication created an easement for public use because the language and the context of its creation suggested that the parties intended to create a permanent easement. The Owner’s Dedication was labeled as such and contained the explicit binding language “heirs, successors and assigns.”

    The Court of Special Appeals dismissed Flores’s argument that the language created a covenant by noting that the term “covenanted” in the Owner’s Dedication was used as a verb meaning “to promise” and, thus, had no bearing on whether an interest in land was created.

    The Court of Special Appeals also rejected Flores’s argument that vertical privity was required for the validity of easements. The Court of Special Appeals applied T-P § 14-844(b) to hold that the property remained subject to the Owner’s Dedication after the tax sales because the language creating the green space buffer established an easement of record. Moreover, the Court pointed out that the easement had been mentioned in every deed in Flores’s chain of title, thus making the easement an easement of record. [EDITOR’S NOTE: In McClure v. Maryland-National Capital Park and Planning Commission (discussed in this issue of Relating to Real Estate) the Court of Special Appeals held that it was not important that a forest conservation easement was not specifically mentioned in subsequent deeds that conveyed title to the subject property, even though the forest conversation easement agreement itself contained a provision requiring that it be specifically referenced in all deeds regarding the property.]

    The Court of Special Appeals concluded that Flores’s predicament of owning property from which he could receive no benefit was one of his own doing that resulted from his failing to engage in basic due diligence, and he could not receive any relief from the courts on account of it.