Ignorance Is Not Bliss When It Comes To Easements

by:    Peter J. Gallagher

If I ever told my wife that I couldn’t mow the lawn because the town might fine us $1,000 if I did, I am fairly certain she would tell me to spend less time in the sun because it was obviously frying my brain.  However, some homeowners in Maryland were recently threatened with just such a fine because a portion of their backyard was subject to a conservation easement that required that it be allowed to grow as an undisturbed forest, forever.  A recent article in the Washington Post ("Montgomery Homeowner Learns Yard Is A No-Mow Zone"), which was also discussed at the Land Use Prof Blog ("Landowners Ignorant About Encumbrances On Their Land"), highlighted their predicament as an example of the problems that can arise when homeowners are not fully aware of the impact conservation easements can have on their property.

     The article describes an easement that was created by the prior owner of a large lot, who obtained approval to subdivide the lot into five smaller lots and included an express easement allowing an area running along the back of all of the new lots to grow undisturbed.  The new lots were sold and developed by a builder.  The homeowners claim the builders never told them about the easement.  The builders claim that the homeowners were fully aware of the easement.  Regardless, five years after moving into the property, the families were notified that they could face fines of $1,000 or more for mowing the protected area and other infractions.  One family was also ordered to remove anything they had built or placed on the easement, including a raised garden bed, a portable basketball hoop, a canoe, and about 100 square feet of asphalt driveway.

    The Washington Post is critical of real estate agents for not ensuring that buyers are aware of the easements on their property.  However, it also highlights the importance of retaining competent counsel to review the history of the property and ensure that buyers are well informed when entering into the purchase.  Anyone who has ever purchased a home knows that the amount of paperwork that must be signed at the closing is daunting, but as this story makes clear, reading and understanding each of these documents, or having counsel to ensure that you at least read and understand all of the important parts, is crucial to protect your rights and interest.      

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