Relating to Real Estate

Background hero atmospheric image for Recorded Document → Constructive Notice → No “Innocence” → No Comparative Hardship

Recorded Document → Constructive Notice → No “Innocence” → No Comparative Hardship

In Wolcott v. DeMoss, No. 1386, Sept. Term, 2015, 2017 WL 1435980 (Md. Ct. Spec. App. April 24, 2017), the Court of Special Appeals affirmed the validity of an easement that passed through a residential lot in Eldersburg and encumbered improved portions of the property, notwithstanding the homeowners’ claims of comparative hardship, equitable estoppel, and abandonment.

Mark and Wendelyn Wolcott owned a lot (Lot 6) in a residential development which was developed by Westminster Nurseries.  The recorded subdivision plat created a 40 foot easement for ingress, egress, regress, drainage, and utilities, 30 feet of which is on Lot 6 and 10 feet of which is on adjacent property owned by Westminster Nurseries.  An amendment to a declaration that was recorded before the Wolcotts purchased Lot 6 expanded the width of the easement on Lot 6 to 60 feet.

The Wolcotts bought the property in 1993.  They knew about the easement as shown on the plat, but they did not know that it had been widened to 60 feet.  Unbeknownst to the Wolcotts, the expanded easement placed the well, steps, and a portion of the house on Lot 6 within the easement area. The Wolcotts brought suit in the Circuit Court for Carroll County after Lee and Lori DeMoss, the owners of the adjoining property, took down two trees that the Wolcotts had planted in the easement area.

The Wolcotts claimed they were entitled to the doctrine of comparative hardship, but the circuit court held that this doctrine is only available to defendants who are sued for encroaching.  Further, the circuit court here found that the encroachment was not a result of an innocent mistake.  Because the enlargement of the easement was recorded, the Wolcotts had constructive notice, and constructive notice is inconsistent with innocence.

The circuit court found that the Wolcotts had adversely possessed the man-made improvements on the easement area on Lot 6.  Their use was actual, open, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted for more than 20 years.  Additionally, the court found that any permissive use by a predecessor of the DeMosses did not defeat the adverse possession.  However, the court stated that there was no adverse possession with respect to the trees and other natural obstacles planted by the Wolcotts within the easement area.  (The issue of adverse possession was not appealed to nor addressed by the Court of Special Appeals.)

On appeal, the Court of Special Appeals stated that it found no Maryland cases in which an encroaching party requested an injunction to preserve an encroachment based on the doctrine of comparative hardship.  But the court found that the Wolcotts did not have the equities to get the benefit of this doctrine if it existed.  The doctrine requires an innocent mistake, or if there was notice, a good faith effort to avoid any encroachment.  The Wolcotts could not be said to have made an innocent mistake because a document subjecting land to restrictions that is recorded puts people on constructive notice.

The Wolcotts also argued that they should have the benefit of equitable estoppel.  This concept is similar to abandonment.  For abandonment, there must be non-use of a right, but that is not sufficient.  There must be intent to abandon, and that is difficult to establish.  For rights under the doctrine of abandonment to be established, the servient owner must have a reasonable belief that the dominant owner intends not to use the easement, the servient owner must act in reliance on that belief, and the continuance of the use of the easement thereafter would be seriously harmful to the servient owner.  The circuit court did not believe that the action of the dominant owner (at the time) constituted a clear intention to abandon the rights to the easement (defeating the Wolcotts’ abandonment argument) or that the dominant owner would not make a future use of the easement (defeating the Wolcotts’ estoppel argument).

Therefore, the Court of Special Appeals affirmed the decision of the circuit court.

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


November 08, 2017




Levin, Edward J.


Real Estate