Thank you, XXXXX XXXXX have told me what I had needed to know.Do i have any rights as an easement since the encroachment is de minimus?
Not based on the fact that it is "de minimus." However, you may have an argument on other grounds.
An easement can be on the following grounds:
expressed - given by consent
implied - implied by consent
necessity - no other way for ingress/egress
prescription - by prolonged use without permission
Here, you may have an argument by IMPLIED EASEMENT. "An implied easement is based on the presumed intention of the parties at the time of the grant or reservation as disclosed from the surrounding circumstances rather than on the language of the deed," and that, "as a result, courts often refer to extraneous factors to ascertain the intention of the parties." Kobrine v. Metzger, 846 A. 2d 403 - Md: Court of Appeals 2004
quoting Koch v. Strathmeyer, 357 Md. 193, 198, 742 A.2d 946, 948 (1999); Calvert Joint v. Snider, 373 Md. 18, 39, 816 A.2d 854, 866 (2003).
You may also possibly have an argument via ESTOPPEL. "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part acquires some corresponding right, either of property, of contract, or of remedy." 3 J. Pomeroy, Equity Jurisprudence, § 804 (5th ed. 1941), quoted in Leonard v. Sav-A-Stop Services, 289 Md. 204, 211, 424 A.2d 336, 339 (1981).
Estoppel is the legal version of "it is only fair" in other words.
The issue here is that while you may have an argument, it does not mean that the HOA will automatically agree with you. If the HOA rejects your argument (and it may), you may have no choice but to go to Court to force the issue under Quiet Title
action, which may be time-consuming. You may wish to send a letter via an attorney, demanding a release or else you will file suit. Hopefully, they will acquiesce, fearing expensive and drawn-out litigation. While the letter can be sent yourself, an attorney's letter carries more 'gravitas.' May I recommend the Maryland Bar referral program - here
. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.
Best of luck.
Gentle Reminder: Please use the REPLY
button to keep chatting, or RATE
my answer when we are finished. Kindly rate my answer as one of the top three faces
and then submit
, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct.
I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating