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Thomas Randolph Schovee, et al. v. Eric J. Mikolasko, et al. No. 4, Sept. Term, 1999 Implied negative reciprocal easement -- when developer establishes restrictions through recorded instrument that specifies the lots subject to those restrictions, the restrictions ordinarily will not be imposed by implication on land not included under the instrument.

Circuit Court for Howard County Case No. 13-C-95-29734
IN THE COURT OF APPEALS OF MARYLAND

No. 4 September Term, 1999 ______________________________________

THOMAS RANDOLPH SCHOVEE, et al.

v.

ERIC J. MIKOLASKO, et al.

______________________________________ Bell, C.J. Eldridge Rodowsky Raker Wilner Cathell Karwacki, Robert L. (retired, specially assigned), JJ. ______________________________________ Opinion by Wilner, J. Cathell, J. dissents ______________________________________ Filed: September 21, 1999

The basic issue before us is whether the Circuit Court for Howard County erred in its application of the doctrine of implied negative reciprocal easement. The court subjected a 50-acre lot that was included in the subdivision plat of a 25-lot development community to restrictive covenants contained in a separately recorded Declaration of Covenants, Easements, Conditions and Restrictions, notwithstanding that the lot was not included in that Declaration, upon a finding from other evidence that the lot was intended by the developer to be part of the community. The Court of Special Appeals held that the circuit court erred in that regard, Mikolasko v. Schovee, 124 Md. App. 66, 720 A.2d 1214 (1998), and we shall affirm that holding.

BACKGROUND We are concerned here with a 168-acre development in Howard County known as Chapel Woods II, developed by J.J.M. Partnership (JJMP). The original subdivision plat for the development was recorded in November, 1989; it was amended, in a non-substantive way, by a Revision Plat recorded in April, 1990. The plat showed a development of 25 lots, to be served principally by Chapel Estates Drive, a road that would enter the development from the west and run easterly to a cul-de-sac at Lots 6 and 7. In conformance with thenexisting zoning requirements, each of the lots comprised at least three acres. Lots 1 through 5 and 8 through 25 were generally between three and four acres, although two of them -- Lots 17 and 25 -- contained over six acres. Lot 6 comprised nearly 20 acres and Lot 7 -- the one at issue here -- contained about 50 acres.

All of the property in the subdivision, with the exception of Lots 6 and 8, was owned by JJMP. Lot 6 was owned and occupied by a stranger to the developer; Lot 8 was owned individually by Eric Mikolasko, the vice-president of J.J.M., Inc., which, in turn, was the general partner of JJMP. Eric Mikolasko and his father, John, who served as president of JJMP, were apparently the driving force behind the development. According to Eric Mikolasko, the county required that Lot 6 be included in the plat and that the road be extended to it because it would otherwise be landlocked. He said that he had initially considered subdividing Lot 7 before recording the plat but, in anticipation of more favorable cluster zoning, chose not to do so. Contemporaneously with the recording of the initial subdivision plat, JJMP recorded the Declaration. In a preamble to the Declaration, JJMP stated that it was the owner of a parcel of land known as Chapel Woods II, "(hereinafter referred to as `the Community'), which is more particularly described in Exhibit A attached hereto and hereby made a part hereof." The declarant stated further its intent to create "on such real property" a residential community of single family homes for the benefit of the owners of such homes, and, to that end, declared that the land described in Exhibit A would be sold and conveyed subject to the easements, restrictions, covenants, and conditions thereafter set forth in the Declaration. Exhibit A described the property subject to the Declaration as "Lot Nos. 1 through 5 (inclusive) and 8 through 25 (inclusive) as shown on [the recorded plat]."1 In so defining the

1

As the Court of Special Appeals noted, although

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Maryland Law