Setbacks, buffers and variances are some of the more confusing concepts in real estate law.  Both setbacks and buffers establish a distance from something (like a boundary line or a stream) and both setbacks and buffers limit development in the area.  In Maryland, setbacks and buffers are generally established by County or City ordinance.

In this simple diagram, the property owner cannot build next to the side lot lines because of setback restrictions, and cannot build near the water due to the required buffer zone.  The developable area, therefore, is that part of the lot that can be used without violating a setback or a buffer.

These restrictions would be fairly straightforward, except that a property owner can apply for a variance from the restrictions, which would allow him or her to build into the buffers and setbacks.  The word “variance” in this context basically means “waiver” – the property owner asks that zoning board waive the setback or buffer restrictions.

Under the Anne Arundel County Code, principal structures (houses) in residential areas must meet setbacks of 5 feet from the front lot line, 10 feet from the rear lot line and 7 feet from the side lot lines.  A setback can be granted under the following provision:

Anne Arundel County Code (2005) art.18 sec.16-305

Variances.

  (a)     Requirements for zoning variances. The Administrative Hearing Officer may vary or modify the provisions of this article when it is alleged that practical difficulties or unnecessary hardships prevent conformance with the strict letter of this article, provided the spirit of law is observed, public safety secured, and substantial justice done. A variance may be granted only if the Administrative Hearing Officer makes the following affirmative findings:

         (1)     Because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape or exceptional topographical conditions peculiar to and inherent in the particular lot, there is no reasonable possibility of developing the lot in strict conformance with this article; or

         (2)     Because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship and to enable the applicant to develop the lot.

Assuming that there is something unusual about the lot dimensions or topography that makes development difficult, a variance is likely to be granted.  There are a second set of factors that the hearing officer will consider in determining the appropriate scope of the variance – the hearing officer must decide that (1) the variance is the minimum variance necessary to afford relief; (2) the granting of the variance will not: (i) alter the essential character of the neighborhood or district in which the lot is located; (ii) substantially impair the appropriate use or development of adjacent property; (iii) reduce forest cover in the limited development and resource conservation areas of the critical area; (iv) be contrary to acceptable clearing and replanting practices required for development in the critical area or a bog protection area; nor (v) be detrimental to the public welfare.

It is much more difficult to avoid, by variance, the impact of the critical areas buffer.  Critical area protections are established by state law, but its specifics are enacted by each locality in their zoning laws.  In Anne Arundel County, the basic buffers are established in 18-13-304 of the zoning code.

18-13-104.  Buffers, expanded buffers, and buffer modification areas.

  (a)   Buffer. There shall be a minimum 100-foot buffer landward from the mean high-water line of tidal waters, tributary streams, and tidal wetlands. Specific development criteria apply as set forth in Article 17 of this Code and COMAR.

  (b)   Expanded buffer. Except as provided in subsection (c), the 100-foot buffer shall be expanded beyond 100 feet to include contiguous sensitive areas, such as slopes of 15% or greater and hydric soils or highly erodible soils.

For waterfront lots, a 100 foot buffer can significantly diminish the buildable lot area, and the buffer can be expanded significantly if there are steep slopes, erodible soils or streams and wetlands.  At times, this can leave a lot with no area that can be developed without a variance.  A landowner can seek relief by obtaining a variance from the critical areas laws — variances can be granted if the following terms are met.

  (b)   Requirements for critical or bog protection area variances. For a property located in the critical area or a bog protection area, a variance to the requirements of the County’s critical area program or the bog protection program may be granted if the Administrative Hearing Officer makes the following affirmative findings:

     (1)   Because of certain unique physical conditions, such as exceptional topographical conditions peculiar to and inherent in the particular lot or irregularity, narrowness, or shallowness of lot size and shape, strict implementation of the County’s critical area program or bog protection program would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, § 8-1808, of the State Code, to the applicant;

     (2)   (i)   A literal interpretation of COMAR, Title 27, Criteria for Local Critical Area Program Development or the County’s critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas as permitted in accordance with the provisions of the critical area program within the critical area of the County; or

        (ii)   The County’s bog protection program will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the bog protection area of the County;

     (3)   The granting of a variance will not confer on an applicant any special privilege that would be denied by COMAR, Title 27, the County’s critical area program to other lands or structures within the County critical area, or the County’s bog protection program to other lands or structures within a bog protection area;

     (4)   The variance request is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development before an application for a variance was filed, and does not arise from any condition relating to land or building use on any neighboring property;

     (5)   The granting of a variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s critical area or a bog protection area and will be in harmony with the general spirit and intent of the County’s critical area program or bog protection program;

     (6)   The applicant for a variance to allow development in the 100-foot upland buffer has maximized the distance between the bog and each structure, taking into account natural features and the replacement of utilities, and has met the requirements of § 17-9-208 of this Code;

     (7)   The applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, § 8-1808, of the State Code; and

     (8)   The applicant has evaluated and implemented site planning alternatives in accordance with § 18-16-201(c).

The critical area variance provisions require the developer to affirmatively show that there can be no reasonable building without a variance.  It also requires the developer to do sufficient planning and engineering to prove that the development will be no worse for development that fully forested buffer lands.  For better or worse, the real world effect of these provisions is that variances are only available to highly sophisticated and deep-pocketed applicants.  For those that are opposed to a development within the buffer, there are significant avenues that can be pursued — but in many cases effective opposition also requires significant engineering and legal expertise.

In conclusion — variances are exceptions to existing law that are available to a property owner if he or she has property that could not reasonably be developed without some sort of relief from the laws on the books.  Variances exist, at least in significant part, because the Supreme Court of the United States has determined that government cannot strip the value from real property by passing laws that prevent its reasonable use.  That sort of law is deemed a regulatory taking without compensation, and violates the United States Constitutional prohibition against the government taking citizen’s property without just compensation.

Title insurance is required in most purchases of real property, but what does it cover?  What losses can a property owner suffer that should be submitted to insurance?  The answer is a bit of a cruel joke among real estate attorneys — Title Insurance does not cover a great deal.

The Court of Special Appeals recently issued a decision in Back Creek Partners v. First American Title – a case which the court helpfully described as “about title insurance, specifically what it does and doesn’t cover.”   The underlying dispute involved issues in the Annapolis neighborhood of Harbor View, a ten home subdivision on a beautiful section of Spa Creek.  Not coincidentally, the question of the appropriate location of an access easement from the lots to the pier has been in litigation there for many years.  It may be the most litigious neighborhood in Maryland.

Back Creek, the developer that purchased, subdivided and created a plat denoting a waterfront access easement, sought to recover its litigation costs from First American Title Insurance Company.  The insurance was supposed to cover any loss or damage incurred if: 1) title to the estate was other than described in the policy; 2) any defect or lien or encumbrance on the title; 3) unmarketability of title; or 4) lack of a right of access to and from the land.  On first read, one might think that there would be coverage for a years-long dispute about the correct location of an access easement which also raises the question of who actually owns what parcel of land.  Not so.

When Defendant Back Creek sought reimbursement for attorneys’ fees incurred defending itself against a lot owner, First American moved for judgment on the basis that 1) the policies had expired; 2) that there was no coverage for the claims; and 3) that they did not receive timely notice of the claim.  These arguments were successful in the trial court.

The Court of Special Appeals ultimately upheld this decision, ruling that the claims made by the homeowner did not fall within the scope of coverage.  “Title insurance in general is meant to protect title to property as it existed at a particular time; these title policies in particular covered claims relating to the title that Back Creek obtained when it bought the property and the titles that it passed to the Harbor View neighbors.”  The case brought against Back Creek did not raise issues about whether there was good title to the real estate, and there were not allegations of a “defect in Back Creek’s title or the titles it conveyed to the Harbor View residents, nor any liens or encumbrances that hadn’t been disclosed.”

The court went on to note that the policy conditions provided coverage only “so long as the insured retains an estate or interest in the land … or so long as the insured shall have liability by reason of covenants of warranty made by the insured.”  In this particular case, Back Creek sold the lot a person, and that person sold the lot to the buyer that sued Back Creek.  Once the second transfer occurred, the court held that this severed Back Creek’s obligations to warrant title, and so even though they were sued, they could not recover their attorneys’ fees from the title insurer.   The Court did emphasize that a title insurer is required to defend a case “if any claim raised by the insured potentially falls within the scope of the policy.”  That was not the case for Back Creek, however.

So what does title insurance cover?  The classic case is where you purchase a property from a person that has a deed, then later another person comes forward with a deed to the same property.  If the other deed is valid, and it is based on a transfer that occurred prior to your chain of title, then you did not actually purchase the real estate because your seller did not own it.  Your losses should be covered by title insurance.  Similarly, if it turns out that there is a prior mortgage or other lien against the property that was not known at settlement, resolving that claim would be covered.  Finally, if it turns out that a piece of property does not actually have access — such as a flag lot where the access strip did not really convey — this should be covered.

A word of caution, however.  It is not infrequent that one person purchases the property with title insurance.  Then, they later transfer the property to an LLC that they own or a family member, and no title insurance is obtained.  Just as in the Back Creek situation, the second transfer likely voids any title insurance.

If you have an issue that may be covered, it is wise to submit the potential claim to the title insurance company as soon as a possible.  Look carefully at whether the Plaintiff alleged claims that may be covered.

Good luck, be careful, and if you need a solid opinion on your rights under a policy, consult a good attorney.

J. Dirk Schwenk is cum laude graduate of the University of Maryland School of Law, and is active cases involving real estate, riparian rights, and vessel purchase issues.  He can be reached at dschwenk@baylawllc.com or 410 775 6805.

by Dirk Schwenk – dschwenk@waterfrontlaw.com and Mike Piasecki III – mike@marylandwaterfrontproperty.com

There is nothing that can compare to the peace, tranquility and sense of well-being that accompanies ownership of a piece of waterfront property. That feeling should not be disturbed by legal problems that can be prevented or at least managed. In waterfront property there are a few issues that arise with such regularity that they should be considered prior to any purchase. Mike Piasecki, III, Associate Broker, Prudential Carruthers Realtors in Elkton and Ocean Pines (www.marylandwaterfrontproperty.com) and J. Dirk Schwenk, attorney at Baylaw, LLC (www.waterfrontlaw.com) got together to come up with a “top five” list of things that should be thought through. These issues are focused on Maryland waterfront property, but they apply everywhere where piers, views and access to the water are of top concern. Here they are:

1. Community Waterfront versus Private Waterfront.

Many waterfront, waterview and water access properties are located in developments where the original developer subdivided a large tract and reserved the waterfront for the use of all of the houses in the neighborhood. Interior houses may be listed as “water access” properties and have affirmative rights to community beaches, boat ramps and other facilities. In many of these developments, there is also a strip of land that lies along the water and surrounds the entire community and was intended to allow for members of the community to walk and have access to the entire waterfront. The ownership structure of these walks can vary widely, but if they are present, there are special concerns for the homes nearest the water. Those homes may have the right to build and maintain a pier — but the pier may actually be owned by the community and be available for all of the members to use. Or there may be no right to a pier at all. The possible variations are too numerous to list, but an owner purchasing “waterfront” in such a community should be sure to understand exactly what the obligations and benefits are in the particular community.

2. Waterfront versus Waterview.

A true “waterfront” property is one that has riparian rights associated with it. In Maryland and most of the states on the East Coast of the United States, the owner of a property that has riparian rights has the right to apply to construct a pier or other waterfront improvement, has the first right to apply for permits for waterfowl hunting, and has the right to prevent others from impeding access to the water or the view of the water. In contrast, a “waterview” property is generally one that is close to the water, but has land owned by someone else between the land and the shoreline. A waterview may have a limited (or no) right to build a pier and may not have any guarantee that another owner will not build a fence, structure or put in plantings that obstruct the waterview. Careful consideration should be paid to what might be placed between the waterview property and the water — if it is community land on which nothing can be built that is very different than private land on which someone in the future may build a multi-story home.

3. Pier Locations, Boundary Lines and Permits.

Having (or keeping) a pier is a first priority consideration for many waterfront lots. It is not relaxing and fun to have a dispute with a neighbor about whether a pier is on his property, your property, on the line, should be shared, or whether a pier that you were counting on using is even legal in the first place. If you are considering a home where there is currently a pier or where you would like to put in a pier, its continued viability should be examined. First, consult with planning and zoning — was the existing pier built with a permit (or grandfathered?), or if you would like to put in a new pier, can an adequate pier be placed on the site given environmental limitations and the location of neighboring piers? Second, is there any dispute with a neighbor about the location of any of the piers (does a pier encroach the property line extended into the water?) or is there an expectation that a pier will be shared? If you are purchasing a property that is one of several that were previously owned by a single family, it is very common that multiple homes shared a single pier. This sort of agreement should be spelled out — or it can quickly lead to a disagreement.

4. The Obligation and Ability to Maintain the Waterfront.

For any property that faces significant wave action or is on a bluff, there will be erosion concerns. For all waterfront properties, there are significant legal restrictions on the owners’ ability to clear growth and trees, to fill eroded areas, and to construct shoreline protection. The cost and ability to obtain permits for waterfront repairs and maintenance should be considered. For example, in many waterfront communities, there are existing bulkheads or revetments. Depending on the particular community, the cost to maintain these structures may lie with the nearest individual landowner or with the community. In Ocean Pines, Maryland, for example, all properties in the community must pay an annual HOA assessment toward the upkeep of common area facilities, but in the instance of waterfront properties, the assessment may also cover the cost of maintenance to the property’s bulkhead. We say “MAY” because this is true in some sections of Ocean Pines, whereas in other sections, waterfront property owners, although they still pay an annual assessment that is higher than a land locked property, have the cost and burden of bulkhead maintenance placed squarely upon the homeowner. Sounds confusing doesn’t it? This example is exactly why you should consult a waterfront law specialist, and/or waterfront specialist real estate broker before entering into a contract to sell or purchase waterfront property anywhere, but especially in the state of Maryland. Another instance? In Anne Arundel County, Maryland, there have been news reports of criminal charges being filed because a waterfront property owner hired a landscaper to clear trees and bushes along the waterfront. Just like piers, it is wise to consult with knowledgeable professionals and zoning departments before becoming set on plans for improvements.

5. Choose the right professionals.

Purchasing and owning waterfront is meant to improve ones quality of life, and usually it does. There will always be an unfortunate few that end up purchasing a large, unexpected and expensive dispute, and their quality of life is most often not improved. Without question, the best means of avoiding unexpected difficulties is to associate with professionals with experience and interest in waterfront and riparian properties. A good realtor will know the particular area where a property is located, or will know the questions (like the ones above) that must be analyzed in order to know if a property is right for you. A good lawyer will know whether a deed is to transfer all of the rights you expect, (or maybe just some), will be able to spot misunderstandings in pier sharing agreements, and will know how to resolve a dispute that does arise. We hope these pointers help to make your next waterfront property purchase or sale, an enjoyable one!

Dirk Schwenk – dschwenk@waterfrontlaw.com
and Mike Piasecki III – mike@marylandwaterfrontproperty.com

I regularly receive calls from landowners that have a conflict (or potential conflict) with a neighbor over the boundaries between their properties.  For waterfront property, this may involve the location of a pier.  For the homes in planned and platted communities, this may involve the location of a paper road or community land.  For everyone it might involve a question of where exactly is the shared line between two properties.  These locations may be obscured by installed fences or sheds, by a history of maintenance in one area or lost to history.  It is very common that the potential client, and perhaps their opposing neighbor, do not know where the location is that is called for in the deed or plat.

 Usually one of my first questions is whether the property has been properly surveyed.  If so, this will narrow the field of dispute a great deal.  Oftentimes the property owner does not have a survey or if they do only has the Location Drawing that they received at purchase or perhaps just the neighborhood plat.  The plat is an important legal document which is relevant (and may establish) the legal boundaries, but it is not the same as being able to locate actual boundaries in the field.  In Maryland, there are several kinds of surveys identified in the regulations, each of which serves a different purpose.  Any qualified surveyor should be able to perform them – a very good surveyor will also be able to testify as needed.  Oftentimes there will be multiple categories on a single plat, but it is good to know what you are looking at, and what you should be able to expect from your surveyor.  Here are some thoughts on each type of survey.

1. Location Drawings.  A location drawing is the depiction of the property you receive when you purchase a house.  Although it looks like a survey, it hardly qualifies.  To start with, although you may not remember, if you received one you had to sign a piece of paper that says: A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED ON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE.  The purpose of a boundary survey is to “locate, describe and represent the positions of buildings or other visible improvements affecting the subject property.”  For a location drawing, the surveyor is offering the insurance company and mortgage company an assurance that any improvements to the property are within the boundaries — but that is it.  There are no true assurances to the owner of the size or location of the property, whether there are easements across it, or any of the other items that are likely to cause disputes.

2. Boundary Surveys.  A boundary survey “is a means of marking boundaries for sufficient definition and identification to uniquely locate each lot, parcel or tract” and to “establish, reestablish or describe … the physical position and extent of the boundaries of real property.”  If you have a dispute with a neighbor about where the property line is, this is the type of survey that you need.  The surveyor should mark the corners of the property with survey stakes and provide a plat of the area.  To create it, the surveyor will do field work including locating any existing boundaries and markers and review the chain of title to determine what is called for in the deeds.  The surveyor is to accept and review private and public records, and note conflicting boundary line locations.  Field work is to include measurement of locations to an accuracy of 20 millimeters and take account of visible encroachments and visible indications of rights including those asserted by adverse possession or prescription.

3. As built, Constructed or Record Surveys: This is the type of survey that is done where there is a question about whether something that has been constructed (say a fence, building or pier) is in the correct location in relation to the boundaries.   They are required to have sufficient accuracy to “permit the determination of whether the position of visible constructed improvements encroach upon adjoining properties” in rights of way or in easements.  In the case of a pier, this will mean that a determination must be made, typically by asking the County zoning officials, of where the riparian line is to be drawn.

4. Field Run Topographic Survey: this is the correct survey if the contours of the property are needed, including the location of the mean high water line for waterfront properties.

5. Field Run Planimetric Survey: This is similar to a location drawing, except that it is done as a full survey in order to “locate, describe, map or all of these, the horizontal positions of the physical features and characteristics of the earth and other features.”

6. Metes and Bounds Description: Instead of a depiction of the property on a plat, this is “a written legal description of the subject tract of land that provides information necessary to propertly locate the property on the ground and distinctly set it apart from all other properties.”

7. Right of Way/Easement Surveys: An easement or right of way is a legal right of one person to access property owned by another.  It might be a narrow walking path to reach a beach or other feature, or it might be a complete right of use (such as a community park) that prevents the deeded owner from developing the property in any way.  An easement survey “is a means of obtaining, reporting, or displaying … the necessary data to establish or reestablish the location of sufficient property lines of the affected tract of land to assure the accurate location of the strip or parcel of land being described for the use and benefit of others.  Markers need not be set, but the survey is otherwise required to meet the same standards as a boundary survey.

8. Special Purpose Surveys: This is essentially a catch-all category that covers anything aside from the first seven types noted above, but it is not to be used to lower the required standards described in the regulations.

Dirk Schwenk is a graduate, cum laude, from the University of Maryland School of Law.  He practices in real estate, waterfront and riparian law and Maryland boating issues.

Maryland’s highest court issued a decision last week discussing boundary disputes in real property – Webb v. Nowak.  The case arose because the Nowak’s cut down and sold timber on a parcel of land that the Webb’s believed they owned – this led to accusations of trespass and claims of adverse possession.  Both parties obtained surveys to determine where the boundary line was supposed to be.  The original 1928 deed set the mutual property line at an “existing fence” and then ran from the fence “340 feet more or less” to a road.  The Nowak’s surveyor concluded that there were remnants of a fence and other evidence of its location when he surveyed almost 80 years later in 2007.  His testimony included pictures of a fence post, the borings of a tree that had grown around a fence post and a description of a swale that he concluded indicated the edge of a formerly tilled field.  He therefore concluded that the 340 foot measurement was a mistake, and the distance should only be about 200 feet.  The Webb’s surveyor relied on a point 340 feet from the road, but did not note any evidence of a fence at that location.

For a starting point, the Court of Appeals concluded that there was a question of fact concerning the correct location of the boundary.  A “determination of which of two surveys reflected the true boundaries of disputed land as intended by the original surveyor is a question of fact.”  Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).

The determination of the boundary line in this case … must involve comparing the Wolf deed to conditions in the field—e.g., the location and condition of the Existing Fence, the location of the Private road and County road, the location of other monuments, the topography of the land, and even the location of surveyors’ pins.”

 Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).  The Court went on to conclude that the 340 foot measurement was a mistake, because the fence was a monument and “monuments control over courses and distances where they continue to exist, or their locations can be determined with reasonable certainty.”  Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).

The takeaway for a current landowner?  First, if there is a dispute about the correct boundary in a deed, the testimony of a surveyor will be of paramount importance.  This brings me to land surveys — In Maryland, land surveyors are licensed by the State and the state regulates what must be included in certain types of surveys.

What most people receive when they buy a house — a location drawing — is the lowest form of survey and it cannot be given to someone unless they acknowledge in writing that “A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE.” COMAR 09.13.06.06.  The purpose of a location drawing is only to “provide some assurances that improvements are located on the property.  This assurance is for the use of a lend or an insurer only.”  Id.  So a homeowner that purchases a property is not supposed to rely on the location drawing for assurances that the boundaries are correct.

An accurate and reliable survey that is likely to be accepted in Court needs to be at least a Boundary Survey.  A boundary survey will establish and mark the “physical position and extent of the boundaries of the property” and requires that monuments (surveyors stakes) be set and a plat produced.  COMAR 09.13.06.03.  Conducting the survey is what will place the surveyor in a position to testify as an expert to the location of the lines.  And in the case of Webb v. Nowak, it is what put the surveyor in a position to testify that a line described in a deed as 340 feet was really only 200 feet – and that testimony made all the difference.

For more on types of surveys, see Types of Land Surveys

J. Dirk Schwenk graduated from the University of Maryland School of Law in 1997, cum laude, and practices in real estate, waterfront land riparian rights and marine issues in Annapolis, Maryland.