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Roger, Lawyer
Category: Real Estate Law
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I purchased a commercial property about 2yrs ago and the property

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I purchased a commercial property about 2yrs ago and the property is granted a deed of easement for a parking lot. That parking lot is next to my property and accessible via an alley. There are two residential properties that are "subject to" the easement within their deeds. Since I bought my property, both of the owners of the residential properties have consistently argued that they have sole control of the parking lot and have, generally, been a pain in the butt. They post "no parking" signs on the property, store untagged vehicles, and interfere with my ability to use the parking lot. By way of background, neither of these homeowners are long time residents but each have owned their houses a bit longer than I've owned the commercial property. However, the easement pre-dates their ownership by a good decade.

Within the last month, one of the homeowners took it upon herself to literally remove the parking lot by hiring a company to come in and dig it up. She struck an agreement with the other homeowner to leave a portion of the existing macadam parking lot so that a driveway would be created providing access to the rear of his property. Mind you, access is not needed or mandatory because he has non-vehicular access to the rear of his property. And, there is ample on-street parking. He just doesn't want to park his car on the street.

Upon the above action, I wrote and mailed certified letters to each party informing them that my property was "granted" and easement that is recorded in the land records of the county and that easement pre-dates their ownership of the homes. And, I pointed out that each of their respective properties are "subject to" the easement. In the case of the lady who took it upon herself to dig up the parking lot, her deed does not reflect the easement even though the deed clearly exists in the chain of title. So, when she bought the property, the settlement attorney neglected to include the easement and that contributed to her belief that she has no obligations regarding the easement. I pointed this out to her in my letter and suggested that she contact her settlement attorney to confirm the existence of the easement.

In talking to the other neighbor, I learned that he had several arguments with the prior owner of my property (the Seller) and that he had even hired an attorney to send them a letter advising them that he claimed ownership regardless of the easement. His attorney allegedly wrote the Seller a letter demanding rent for each parking space on the existing macadam parking lot. His attorney told him that the entity that owned my property long ago was a corporation and that it granted an easement to itself prior to selling the two houses which are now occupied by the aforementioned neighbors. And, according to this attorney, a corporation cannot grant an easement to itself in the state of Maryland. Upon conducting research, I cannot find anything that would suggest that a corporation or the owner of property is restricted from creating an easement upon selling a property.

When this neighbor told me about the on-going feud that he had with the Seller, it prompted me to go back and review my closing documents. I had already studied the chain of title for each property and felt confident about the existence and validity of the easement. But, I recalled the emphasis put on the easement prior to my purchasing the property. The Seller, their realtor, and the settlement attorney had all gone to a great deal of effort to convince me that the easement was nothing to worry about. In fact, in retrospect, I recall that the realtor and Seller convinced me to use a settlement attorney of their choosing because "he had knowledge of the easement and could explain it better." At the time, I interpreted their actions and helpful and subsequently agreed to use the settlement attorney they recommended.

During the weeks pre-dating my acquisition of the property, the Seller and their realtor never mentioned anything negative about the easement. They never mentioned the on-going battles with the neighbors, they never informed me that the neighbor had burst into their business and threatened customers about having cars towed, and they never told me that they towed several of the neighbors cars off of the parking lot. The only thing they said (collectively) was that their was a large parking lot that went with the property and it was a "deeded easement". They always stressed "deeded easement" as if to imply that it was good as gold.

So, I started reading the settlement papers and ran across a Seller's Affidavit that was presented to me at closing. It was used as a tool to encourage me to buy Owner's Title Insurance and to remove any hesitations I had that might have arisen from the easement. In it the Seller stated that there were never any problems or claims against the easement.

Do I have a claim for Fraudulent Concealment or other damages?
Hi - my name is XXXXX XXXXX I'm a Real Estate litigation attorney. Thanks for your question.

If you have a written easement on your deed, then you have the right to rely on that warranty provided in the deed, and if it turns out that the seller didn't actually own a valid easement, then you could sue the seller for breach of the warranty of the easement.

Also, if the seller knew that there were issues with the easement and intentionally failed to disclose the information OR intentionally misled you, then you would have a right to sue for negligent/fraudulent/intentional misrepresentation. You could seek damages for the misrepresentation, including damages for loss of use of the easement and parking lot.

Even if your easement is valid, but you have to sue the neighbors to validate your easement, you could still have a claim against the seller for your expenses in getting the easement confirmed by a court because he/she failed to disclose the issues/trouble to you prior to purchase.

You should definitely consult an attorney in your area to address this matter with the neighbors and seller. It may be that you can resolve this short of going to court, but if you can't that's probably what it will take to resolve your easement and to recover from the seller for the misrepresentation.
Customer: replied 4 years ago.

tried to send copy of affidavit but site won't let me! I have a couple of follow ups on my original question and would like them answered before I give you your deserved high rating. Please advise on how to get the copy of the affidavit to you. I want to know if it is as damaging to the seller as I think it is?

Hi - I'll be glad to answer any follow-ups you have. Just post them below and I'll respond.

As for the affidavit, I'm not really sure how I could review a copy as we're only allowed to communicate through this site - no outside emails, faxes, etc. However, you can tell me way it says here and I'll be glad to respond.
Customer: replied 4 years ago.

Okay. I guess my first concern with the affidavit is that it could be argued that it was created solely for the consideration of the Title Insurance Company so that they would agree to sell me an "Owner's Title Policy". To me, a sworn written statement is a sworn written statement and the answers given should be subject to scrutiny if they contradict reality. So, question #1 is whether or not the sworn statements of Seller can in any way be ignored just because they were used to limit the exposure of the title insurance company?


#2 is my understanding of the terms "subject to" and "granted an" accurate when it comes to the easement? I believe that since I own the property that is granted the easement, it trumps the other properties with regard to using the parking lot. The language in the easement is a bit vague because it relied more on the engineers drawing that was attached to the recorded easement and set forth the lines of the "macadam parking lot". In looking at the drawing, there is no doubt what was intended by the easement.


#3 There are some specific statements on the sworn affidavit that are completely false. They are:


a) our enjoyment thereof has been peaceable and undisturbed and the title to said property has never been disputed or questioned to our knowledge, nor do we know of any facts by which title might be questioned and/or disputed or by reason of which any claims to any of the said property might be asserted adversely. My take: their enjoyment was anything but peaceable and undisturbed and there were multiple disputes and questions regarding the title. Not only that, but the Seller received threats from the neighbors and letters from lawyers claiming sole ownership.


b) no party other than the affiants is in possession of all or any portion of the above described under any unrecorded leases, tenancy at will or otherwise. My take: Both neighbors were in possession of a portion as tenants at will.


c) the Sellers have conveyed no portion of the property or done any act or allowed any act to be done which has changed or could change the boundaries of the property. My take: The Sellers never challenged the claims of the neighbors nor did they disclose those claims to me. Therefore, they fueled the fire by which the neighbors felt empowered to take a more aggressive stance.


d) the Sellers have allowed no encroachments on the property above described by any adjoining landowners nor have the undersigned encroached upon the property of adjoining landowners. My Take: The Sellers knew of encroachments and hid them from me and those encroachments were by none other than the adjoining landowners.


e) the Sellers have allowed no easements, rights of way, continuous driveway usage, drain, sewer, water, gas or oil pipeline, or other rights of passage to others over the property above described and has/have no knowledge of such adverse rights. My Take: The Sellers not only allowed rights of way and driveway usage but took steps to hide that fact from me. So, they had first-hand knowledge of adverse rights.


f) the land has actual pedestrian and vehicular access to and from a public street. My Take: This clause within the document proves that it is addressing the area of the easement because my building takes up 100% of the property all the way to the property line in every direction. Therefore, there is no vehicular access except to the easement since you can't drive a vehicle into my building (it's a dinner theater, not a warehouse with bay doors).



The property description on the affidavit is "104 S. Mechanic Street" and the easement is a portion of the two neighboring properties at 106 and 108 S. Mechanic. But, the reference to parking and to easements (in my mind) makes it clear that the affidavit is intended to address concerns specific to the parking lot and the neighbors.


The title of the document is "Owner's/Seller's Affidavit" and it is notarized and signed by the Sellers on the date of settlement. On that day, this document was reviewed with me prior to signatures and used a tool to ease my mind with regard to the easement and parking lot. A copy was provided to me together with the other closing papers.


Please address each of my points with the correct legal perspective. For instance, a non-lawyer might think that quiet enjoyment means the neighbors can't blast their music really loud. But, in reality, it doesn't have much to do with the neighbors music. If I have a flaw in my thinking with regard to the terms used in the affidavit, please explain the correct way of viewing the language in question.


And, back to the concern . . . is the affidavit as damaging to the Seller as I think it is?


Once you give me insight on these questions, we'll wrap this up. Thanks for your help.



1. An affidavit is an affidavit, and the content of the document is sworn by the affiant to be true and accurate to the best of his/her knowledge. Thus, I don't think someone can get around a sworn affidavit by claiming that it was only meant to be used as a basis to grant title insurance. That's a long shot claim, at best.


2. A property being "subject to" an easement means that the landowner has to tolerate the easement owner's use of the easement area. Conversely, a property owner being "granted an" easement would mean that the person has a right to use the easement area.


3(a). It sounds to me like this statement is in regard to the actual property you bought - - and not about the easement - - the sellers are apparently saying that they're not aware that there's an issue with the property's title. This could be true as the fighting has been over the easement rights - - not the title to the property upon which the easement exists. However, I'm assuming this affidavit is in regard to the easement area for the purposes of my responses.


3(b). The neighbors were apparently in possession of some interest or claimed right to use the easement area. I don't know if they would be classified as "tenants", but they were likely claimants to some form of possession.


3(c). The neighbors' claims could certainly change the title/ownership/easement rights, so this statement is questionable.


3(d). Agreed.


3(e). Agreed.


3(f). Agreed.


Even if your deed doesn't specifically address an easement, you can claim an easement by prescription, which is an easement born by use over a certain period of time - which is 20 years in Maryland (Md. Ann. Code [Cts. & Jud. Proc.] § 5-103). However, you can rely on the use by previous owners to make up the 20 years.


BUT, if your deed doesn't specifically designate an easement, you've got a tougher situation because you have no warranty of an easement, and therefore you will likely have to sue to claim a prescriptive easement based on use of your predecessors in title. Also, the 3(d), (e) and (f) of the affidavit seem to imply that there's an easement - - which should give you standing to go after the seller as well.


Thus, I do think that the affidavit is good ammunition against the seller IF they claim no easement exists after representing to you that it actually did.

The best thing you can do is have an attorney review the titles of each property, discearn whether or not there's a written/recorded easement for your property and then proceed against the seller and neighbors as need be to get this resolved.


You do have legal options, but which way to go will depend on the status of your easement.

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