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Home , Cloud on title, Quiet title

Maryland Society of Surveyors April 9, 2021

AN ACTION TO OUIET - WHAT IS IT AND WHAT IS THE SURVEYOR'S ROLE?

The subjectofthis Webinar will focus on the legal remedyof"quieting the title" to land when its true is in doubt. Often times attorneys, title examiners and surveyors find that the title to and the ownershipofa parcelofland is not clear and confusing from an examinationofthe public records, and that the ownership may be in dispute. This Webinar will explore the judicial method and possible remedy for determining the true ownerofthat land, by reviewing Maryland's statutory on the subject, along with actual case studies, and the surveyor's important role in this process.

Introduction: "An Action to " is a remedy which is provided by both Maryland's statutory and case law, in order for lawyers and their clients to attempt to have determined the true ownership of real , and for the to resolve the legal dispute as to such ownership. But the main question which I always ponder is: What does the surveyor need to know about this judicial process, and why is it important for the surveyor to know anything about that process?

My focus on this discussion, as both an attorney and a land surveyor, is to attempt to teach the surveyors the importance of knowing all aspects of those portions of real law which the surveyor is bound to come into contact with in his or her practice; and that any attempt to "quiet the title" to a parcel of land most assuredly must involve the land surveyor.

And, as stated in Clearing Land Titles, by Professor Paul E. Basye: "suits to quiet title are the traditional remedy to clear titles of their defects.They Isuits/actionsi are likely to be complicated, time-consuming and expensive, especially when notice by publication is necessary. They can seldom be conducted to a conclusion in time to satisfy an impatient purchaser." [Please note that most of the bold type in this paper has been added for emphasis.1

§ 14-108 Quieting Title, Article Annotated Code of Maryland

(a) Conditions. - Any person in actual peaceful of property', or, if the property is vacant and unoccupied, in constructive and peaceful possession of it, either under color of title or claim of right by reason of theperson or the person's predecessor's for the statutory period, when the person's title to the property is denied or disputed, or when any otherperson

'Equity lacks jurisdiction where there is an adequate remedy at law to oust thepossessor, and the remedy in that case would be an action for possession (ejectment). § 14-108.1, Real Property Article, Annotated Code of Maryland;the ground of equity jurisdiction is that, being in possession, the remedy atcommon law being a bill quia timet, and the owner is denied a remedy at law. Barnes V. Webster, 220 Md. 473, 154 A.2d 918 (1989).

Page 1 of 13 . ;

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TI-IE DISP&JTED TITLE claims, of record or otherwise to own the property, or any part of it, or to hold any on it,regardless of whether or not the hostile outstanding claim is being actively asserted, and if an action at law or proceeding in equity is not pending to enforce or test the validity of the title, lien, encumbrance, or other adverse claim, the person may maintain a suit in accordance with Subtitle 6 of this title in the circuit for the county where the property or any part of the property is located to quiet or remove any cloud from the title, or determine any adverse claim.

(b) Proceeding. - The proceeding shall he deemed in rem or quasi in rem so long as the only relief sought is a decree that the plaintiff has absolute ownership and the right of disposition of the property, and an injunction against the assertion by the person named as the party defendant, of the person's claim by any action at law or otherwise. Any person who appears of record, or claims to have a hostile outstanding right, shall be made a defendant in the proceedings.

A Classic Definition of a Quiet Title Action. A quiet title action requests ajudicial determination of all adverse claims to disputed property. Such an action determines the ownership of real property as between the parties, formally resolving the issue of ownership among competing colorable claims. The purpose of a quiet title action is to protect an owner of legal title from being disturbed in his or her possession and from being harassed by suits in regard to that title by persons setting up unjust and illegal pretensions.2

Subtitle 6. Actions to Quiet Title, § 14-601,et seq.,Real Property Article Annotated Code of Maryland (Effective on October 1, 2016)

This section of the Real Property Article is an expansion of § 14-108, with its intent and purpose to make it clearer as to how an action to quiet title is to be plead and how to obtain jurisdiction on the necessary parties. It gives detailed guidance on how parties are to be name in the complaint, the content of the complaint and answer, how to name unknown defendants and when their whereabouts are unknown, the effect of a defendant's death, the power of the court to order for joinder of other parties and the procurement of a title report, the naming of additional defendants, the appointment of an attorney to protect the interest of a party, the procedure for service by publication and posting, the recordation of a judgment in the action and its effect, among other items to be consider in a process and proceedings of a quiet title action.

The background to the enactment of this section of the Maryland Code is that The Maryland Land Title Association reported that its members were seeing inconsistent processes used from case to case and from county to county. In addition, because of the uncertainty concerning the process under the then existing , title insurance underwriters would, in some cases, refuse to insure the title.

2 Porterv. Schaffer, 126 Md. App. 237,728 A.2d 755 (1999) [See page 4 of 13 below].

Page 2 of 13 N&H Maryland Rule 12-801,et seq.

By virtue of Subtitle 6 as cited above, new rules were promulgated by the Court of Appeals, effective April 1, 2017, to govern actions to quiet title, and which applied retroactively to all cases then pending in the courts; and which pertained to the required content of the complaint, the joinder of additional parties, including deceased parties, and the other matters contained in Subtitle 6.

Note: The content of both Subtitle 6 and the Maryland Rule 12-108, unlike most statutes and rules, is akin to a cookbook recipe in giving the plaintiff and his attorney a list to follow as to how to draft a complaint to quiet title.

Estate of Charles Howard Zimmerman, Robert Clayton Stevens, Personal Representative v. Erich E. Blatter, et ux. 458 Md. 698, 183 A.3d 223 (2018)

The Estate of Zimmerman filed in the Circuit Court for Frederick County, Maryland a complaint against the respondents seeking to quiet title to an area of land (the "Disputed Property") by the doctrine of adverse possession; and the respondents filed a counterclaim against the Estate for trespass. No record owner of the Disputed Property was not named as a party in the action to quiet title. The circuit court ruled that, "as between the parties," the Estate had the right to possess and use the Disputed Property by adverse possession, and denied the counterclaim. The circuit court noted, however, that it could not rule that the Estate had "absolute ownership" of the Disputed Property because no record owner had been made a party to the action - the circuit court did not determine ownership of the Disputed Property, and both parties appealed.

In an unreported opinion3 by the Court of Special Appeals, the court's judgment was vacated with instructions to dismiss the case. The Estate then filed a motion for reconsideration, which was denied, and the Court of Appeals then granted the Estate's petition for a writ ofcertiorari.

While this case had been pending in the Court of Special Appeals, the Maryland General Assembly added the above cited § 14-601,et seq.,as those sections pertained to actions to quiet title, which provides the way in which the deceased record owner is to be named as a party which was not done in this Zimmerman case. The Court of Appeals ruled that these new requirements applied retroactively. The proper way to have plead this case would have been to join as a defendant the record owner's "testate and intestate successors," and all persons who would claim "by, through or under" that person.

The "bottom line" to this case is that in an action to quiet title under this somewhat new statute and rules is that the record owner is a necessary party to the action, whether dead or alive.

Note: It is one person's view that too much unnecessary ink was spilled in writing this 29 page opinion on a somewhat narrow issue -i.e.,the failure to include a necessary party.

An unreported opinion may not be cited in any paper, brief, motion, or other document filed in any Maryland court, as either precedent within the rule ofstare decisis,or as persuasive authority.Maryland Rule 1-104.

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Particular Claims Clouding4 Title:

A forged in the chain of title.

An allegation that in a suit there were claims by some of the heirs whichmay have adversely affected the purchaser's title.

To terminate a dormant mineral interest, which is generally describedas being an interest in a mineral estate, however created and regardless of form, and which is unused fora period of 20 or more years preceding the commencement of termination of said interest. § 15-1203, Subtitle 12, Maryland Dormant Mineral Interests Act, Environment Article, Annotated CodeofMaryland.

A deed which was about 100 years old, and which conveyed 30acres or realty, and reserved therefrom "the graveyard situated on" the realty, the graveyard "to be 50 feet square" and "to be used only as a burial place by the grantor and his or her heirs with free ingress and egress," but the grantor was not buried on the realty and no graveyard could be found anywhere thereon. McDonough v. Roland Park Co., 189 Md. 659, 57 A.2d 279 (1948).

The alteration of a deed by the grantor after its delivery by the insertion of thename of an additional grantee.

An unfounded claim of an .

The non-existence of a land patent which had been applied for more than 177years ago, but never resulted in the official granting of the patent. Ski Roundtop v. Wagerman, 79 Md.App. 357, 556 A.2d 1144 (1989).

An outstanding recorded mortgage, which apparently had been paid and satisfied, but when there was no one available with the proper authority to sign a release.

A dispute concerning overlapping land patents in Allegany County, dealing with adverse possession, modem day surveys, color of title, adjoining boundary lines, and the concept of "on- the -ground location," among other boundary and title related topics. Porter v. Schaffer, 126 Md.App. 237, 728 A.2d 755 (1999).

Quiet title was the appropriate remedy in a dispute between two landowners over the boundary line between their ; the title controversy existed because one landowner denied the adjoining landowner's claim that he had title to the land on one side of the boundary fence, and contested the adjoining landowner's that he had acquired the property through adverse possession. Lollar v. Maness, 765 S.W. 2d 695 (Mo. Ct. App., 1989).

' A "cloud" on title is an outstanding instrument, record, claim, or encumbrance that is actually invalid or inoperative, but may nevertheless impair the title to property. 65 Am Jur 2d, § 13, Quieting Title. A is anything which is calculated to cast doubt or suspicion on the title, or seriously to embarrass the owner, either in maintaining his or her rights or in disposing of the property, Stewart v, May, Ill Md. 162, 73 A. 460 (1909). This case also emphases the requirement that for a deed to be sufficient it must describe the property with "reasonable certainty." §4-101(a), Real Property Article, Annotated Code of Maryland.

Page 4 of 13 Three Delaware Quiet Title Cases: The court's denial of a prescriptive easement over an area used by the general public, because the claimant did not perform some act to the knowledge of the servient owner which would clearly indicate the plaintiff's individual claim to a prescriptive use. Dewey Beach Lions Club, Inc. v. Craig A. Longanecker, et al., 905 A.2d 128 (2006); Where a disgruntled brother of the deceased filed an action claiming that he was a "joint tenant with right of survivorship" with his brother to a property, and therefore the subject property should not have gone into the estate, but to the surviving brother by operation of law because the language in the deed did not include the words "and not as tenants in common," the court ruled that the language was adequate enough to form a joint tenancy. Banks v. Banks, 135 A.3d 311(2016); A case dealing with the ownership of a disputed parcel, with many ambiguities in the instruments, and claims as to the significance of monuments, which were not included in the relevant . MatterofTax Parcel 2020 WL 1527079 (2020).

Maryland Rule 2-122. Process - Service - In Rem or Quasi in Rem6

(a) Service by posting or publication. In an in rem or quasi in rem action when the plaintiff has shown by affidavit that the whereabouts of the defendant are unknown and that reasonable efforts have been made in good faith to locate the defendant, the court may order service by the mailing of a notice to the defendant's last known address and: (1) By the posting of the notice by the sheriff at the courthouse door or on a bulletin board within its immediate vicinity, or (2) By publishing the notice7 at least once a week in each of three successive weeks in one or more newspapers of general circulation published in the county in which the action is pending, or (3) in an action in which the rights relating to land including leasehold interests are involved, by the posting of the notice by a person authorized to serve process8 in accordance with Rule 2-123(a) in a conspicuous place on the land. Additionally, the court may order any other means of notice that it deems appropriate in the circumstances. (b) The mailing and the posting or publication shall be accomplished at least 30 days before the date by which a response to the complaint is to be filed. (c) The notice shall be signed by the clerk and shall include the caption of the case; describe the substance of the complaint and the relief sought; inform the defendant of the latest date

6 Rem" is a proceeding which is taken directly against property; "That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the Land." Article 24. Due process, Maryland Declaration of Rights; and Amendment XIV, Section 1, Constitution of the United States ofAmerica. ' The leadingcase for constitutional challenges to the validity of notice by publication in regard to unknown claimants appears to have been answered by Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950), and in particular with subsequent opinions; and with that decision being backed -up with specific respect to suits to quiet title in Jacob v. Roberts, 223 U.S. 261 (1912) and America Land Co. v. Zeiss, 219 U.S. 47 (1911). In John T. B. Dorsey v. John T. W. Dorsey, 30 Md. 522 (1869), in a suit to foreclose a mortgage, the court ordered publication was upheld as valid service of process, notwithstanding that the mortgagee was a non-resident of Maryland, and was in fact residing in the "hostile territory" of Virginia during the Civil War, and could not get back into Maryland to participate in the proceedings. 8Maryland Rule 2-123 allows that service of process may be made by a sheriff or, except as otherwise provide in this Rule, by a competent private person, 18 years of age or older, including an attorney of record [and a land surveyor] but not by a party to the action.

PageS of 13 Note: The Jamaica Cemetery Nothing is to be relied on! July, 2020 by which the response is to be filed; warn the defendant that failure to file the response within the time allowed may result in a judgment by default or the granting of the relief sought; and contain any other information required by the court.

A Very Abbreviated Case Study:

Gordon Wrightfield approached his attorney in order to help him acquire a "deed" in his own name for the area of his family cemetery, which he alleged that he and his father before him had been maintaining it as their own for more than seventy-eight (78) years:

The cemetery, known as the "Jamaica Cemetery," consisted of two (2) adjacent parcels of land, the total area of which being approximately one (1) acre;

One of the parcels was ownedofrecord by Gordon's grandmother, Molly Wrightfield, who had acquired that parcel in 1939, and who diedcirca1961; and the other parcel was owned ofrecordby an Agnes Jones, who had acquired the property in 1887, and who diedcirca1923. Molly and Agnes were somehow indirectly to one another;

Both Molly and Agnes died intestate - meaning that they had each died without leaving a last to be probated;

Molly's parcel was simply referred to in the neighborhood as "Molly's Parcel," and Agnes' parcel was simply referred to as "The Jones Burying Ground";

All of the available public records were examined,i.e.those records maintained by the land and wills offices, the law and equity filings, the taxing authorities, the plat records, and the State Archives; along with interviews of family members, all of whom had ancestors buried in the Jamaica Cemetery, going back into the early part of the19thCentury;

After listing to many antidotal stories about family relationships, lore and tales, including stories about unresolved disputes between family members, and even noting the return addresses on old correspondence between family members, the names and purported addresses of at least 85 members of the Wrightfield and Jones families could be determined, however, it was not always and completely certain how all of these persons were actually related to one another;

It was a given that not all of the members of the Wrightfield and Jones families were known, or whether they were even living or dead, and then there is always the possibility of illegitimate children, which no one wanted to acknowledge9;

At , a child born out of wedlock was regarded as fihius nullius, and as consequently bearing no relationship to any persons other than his own off -spring. Bastards are incapable of being heirs. Chapter XV, Blackctone 's Commentaries. This rule has been changed generally in this country by various statutory provisions, and those persons born out -of -wedlock can therefore now inherit from an ancestor. Outlines of Real Property, § 384, Tiffany, Herbert Thorndike (1929); and § 1-208, Estates and Trust Article, Annotated Code of Maryland.

Page 6 of 13 Many known family members were scattered around the country, and found to be located in Rockville, Frederick and Baltimore, Maryland, and in the District of Columbia, Florida, Michigan, Nevada and Texas.

Except for a couple of small estates having been opened for a few deceased family members, solely for the purpose of transferring automobile titles as required by the MVA, no regular estates had been opened, thus making it next to impossible to completely and officially determine the genealogy of the respective families;

By inheritance law, each one of the85known members of the Wrightfield and Jones families, and all those unknown who could possibly trace their respective ancestry to either Molly or Agnes, would own a small real property interest in the Wrightfield Cemetery were named as defendants - that would, of course, include grandchildren, great-grandchildren, "long -lost" nephews, nieces, and cousins, etc.;

It was a certainty that there were many unknown descendants of Molly and Agnes who could not be identified, and therefore the number of persons who may have had some remote real property interest in the Wrightfield Cemetery was certainly many more than the85;

As a result of a COMAR boundary survey of the Wrightfield Cemetery, 40 grave sites were identified, with not all of them being marked by monuments, and with many of the inscriptions being worn out by age and were incapable of being read; and by observable ground depressions, it was obvious that there were other grave sites which were unmarked;

After the collection of the available evidence, a complaint to quiet the title to the Wrightfield Cemetery was filed in the Circuit Court, requesting that the title be ordered and decreed to be vested in Gordon Wrightfield, by the common law doctrine of adverse possession10;

Included as attachments to the complaint were verified releases whichwere obtained from those members of the Wrightfield and Jones families whowere willing to release to Gordon any and all of their interest in the Wrightfield Cemetery which they may have had by inheritance;

As required by the Maryland Rules and statutes, service ofprocess was achieved on all of the known defendants by personally serving upon them a copy of the complaint, along with a summons, or by certified mail, whenan address was known, return receipt requested; and on the unknown defendants by postinga court ordered notice on the courthouse bulletin board, and by published the notice for

'° To establish title by adversepossession, the claimant must show possession of the claimedproperty for the statutory period of 20 years. The "classic" definition of this doctrine is that such possessionmust be actual, open, notorious, exclusive, hostile, under a claim of title or ownership, and continuousor uninterrupted.East Washington Railway Co. v. Brooke,244 Md. 287, 223 A.2d 599 (1966).

Page 7 of 13 three (3) consecutive weeks in a newspaper of general circulation, and by posting the notice on both "Molly's Parcel" and "The Jones Burying Ground"; The named defendants in the Complaint included all of the known persons who had been identified by research in the public records, and their known addresses derived from the families' oral histories, as outlined above; and included all of the unknown heirs, legatee, devisees, spouses, estates, personal representatives, testate and intestate successors of Molly and Agnes, and which also included all other persons claiming any interest in the subject properties;

Gordon died in 2019 and his widow was then appointed as the personal representative of his estate, and thereafter she was substituted as the plaintiff in this case11;

Default judgments were entered by the court against all of those persons who had not responded to the complaint which had been served upon them in the maimers as described above, and judgments were also entered against those defendants who had been personally served and had responded, but who did not appear in court on the day of the trial;

For all of the many persons who had been identified in the complaint, and who may have had some real interest in the subject properties, only two (2) defendants appeared on the day of trial!;

Much of the evidence concerned the manner in which Gordon and his father had taken care of the properties as if it were their own, by paying all the expenditures for the upkeep of the Wrightfield Cemetery, shoving snow, cutting the grass, racking leaves, removing fallen tree branches, cutting back the shrubby, getting rid of nesting bees, chasing off trespassers, picking up beer cans and condoms left after late night partying in the cemetery, paying the taxes each year, cleaning up the grave sites and the funerary objects, setting a fire to burn down a dilapidated structure on the property, repairing the boundary fences, and giving permission to certain family member who wanted to have their deceased relatives buried in the Jamaica Cemetery,inter a/ia;

During the one (1) day trial, nine (9) witnesses testified as to their personal knowledge of the Jamaica Cemetery, including how and by whom itwas being maintained; and as to their knowledge of the relationships between the members of both the Wrightfield and Jones families; and

' All property ofa decedent shall be subject to the estates of decedents law, and upon the person's death shallpass directly to the personal representative [executor], who shall hold the legal title for administrationand distribution, without any distinction, preference, or priority as between real and .§ 1-301(a), Estates and Trusts Article, Annotated Code of Maryland. Prior to January 1, 1970, title toa decedent's real property passed directly to the heirs or devisees upon death, and the personal representative of the estate, withoutexpress provision in the will, had no interest in the realty. Golden v. Walker, 260 Md. 222,271 A2d 639 (1970).

Page 8 of 13

The Opinion and Order entered four (4) months later by the Circuit Court, declared that Gordon's widow, as his personal representative, possessed the absolute title and ownership, in fee simple, to the Wrightfield Cemetety, which included both Molly's Parcel and the Jones Burying Ground.

What follows is an edited article which was published in The American Surveyor magazine in 2014, which has a strong bearing on any discussion concerning quiet title actions, and which I hope will not confuse the issue of determining land ownership any more than it is already.

"The Owner of the Property Is?"

One aspect of my law practice has always fascinated me, and that is: the process which one must go through in order to determine the true owner of a parcel of land. It may sound easy - but often it is not. What has brought me to write this particular article is an inquiry from one of my favorite clients who raised a concern with me as to whether it is proper for her, or her "guys" in the field, to tell someone who may or may not have an ownership interest in a certain parcel of land.

Often times one sees surveyor's certifications on plats and surveys with language that purports to identify the owner of the land which has been surveyed, without any credible qualifying language with respect to the source of that information. Telling or writing that someone owns a parcel of land, when in fact he does not, can have severe consequences.

Over time there has developed in the law the action of "slander of title," which is defined as a false and malicious statement, oral or written, made in disparagement of a person's title to real property, causing pecuniary loss. The purpose of this article is not to get into the minutia of howone would need to prove a slander of title case, but only to make the reader aware of the potential liability of giving an opinion on the ownership of a certain tract of land, without knowing all of the facts and law which would actually determine the true owner.

It has been written many times that the surveyor must be careful to avoid offeringa legal opinion'2; the surveyor is a collector of fact, not a judge or jury, and his duty is only to apprise his client of the presence of such facts as may be revealed by his survey; and basedupon these said principals, the surveyor should never render an opinion as to whomay own a certain parcel of land, either as it is shown by the latest recorded deed, or by alleged adverse possession.

It is a given that the average person (includingmany land surveyors) believe that in order to determine the person, or legal entity, who may "own"a parcel of land, all that needs to be done is to look at the name of the grantee as written in the current deed,or review the tax information on the State's website. If that were true there would be littlereason to examine the public records for an established period of time in order to determine the true owner of the parcel, andto learn what

12 The Minimum Standard Detail Requirements for ALTA/NSPA Land Title Surveys(Effective February 23, 2021) make it clear that a surveyor should not express a legal opinionas to ownership or the nature of potentially encroaching items such as driveways, alleys and other ways ofaccess.

Page 9 of 13 may affect the parcel. The length of time for that examination is set by statute in some jurisdictions, and in others there is an established "rule of thumb" by custom, with a sixty (60) year period being commonplace.'3

Therefore, to give any opinion on the ownership of a parcel of land, within some reasonable degree of certainty, each document pertaining to the parcel of land in the chain of title, during the prescribed period of time must be examined - ignoring for the moment what "unwritten rights" may exist, with those documents being found not only in the land records (the easiest source to first review), but in the equity (including domestic/family relations), law, judgment, wills, plat, patent, criminal, trust, miscellaneous petitions, and tax records, among others, all of which make- up the vast body of documents which are collectively referred to as the "public records." It may be fair to state that most land surveyors have not been adequately trained, or have been given the time, to examine all of those "public records," and then conclude who may actually "own" a certain tract of land.

In an Indiana case, the court award damages to a landowner for slander of title for comments made by his neighbor, who admitted to making statements that he, rather than the landowner, owned a disputed area of land. In a Maryland case a landowner filed a claim seeking compensatory and punitive damages for malicious interference with and damages for slander of title because his neighbor claimed ownership of a parcel of land in dispute by virtue of the title deeds, and also by virtue of adverse possession for the statutory period. In an Illinois case it was decided that the wrongful filing of a document which casted a cloud upon another's title was held to be such an act of publication as to give rise to an action for slander of title; and in another similar case the defendant was sued for slander of title when he had recorded a , knowing it to be frivolous, in order to cast a cloud on the title.

InRounds v. M-NCPPC,441 Md. 621, 109 A.3d 639 (2015), the plaintiffs alleged the of "slander of title" against the developer's surveying company, and the surveyor individually who had certified to certain drawings, which the plaintiffs alleged that the defendants had ignored certain public records that had referred to a roadway, and had intentionally omitted references to that roadway, and therefore falsely stated in development documents the title history of the land at issue. ThisRoundscase is unique in that the defendants were being sued not for what they wrote, but what they did not write!

In the trial court, the surveyors succeeded in getting the slander of title count dismissed, relying on Carlotta v.T.R.Stark & Associates,Inc.,57 Md.App. 467, 470 A.2d 838 (1984), in which the plaintiffs brought suit against adjacent landowners fora continuing trespass, and against the adjacent landowners' surveyor for aiding and abetting the landowners "by negligentlypreparing an erroneous survey plat of the disputed property boundary."The trial court sustained the surveyor's demurrer for failure to state a ; and the Courtof Special Appeals

E Not being able to cite any written authorities for this "rule of thumb," itmay be logical, and it has been concluded by others, that this "rule" is a combination of three (3)common law statutes/rules affecting real property: (I) the 20 year statute of limitations for adverse possession, Stat, of 21 James 1 (1621) [now §5-103(a),Courts and Judicial Proceedings Article]; (2) The Rule Against Perpetuities of 21years, after the death of a life in being, The Duke of Norfolk Case (1682) [now § § 11-102, 11.102. 1 and 11-103, Estates andTrusts Article, inter a/ia]; and (3) theage of majority, which at one time was 21 years [now 18years, § 1-401, General Provisions Article].

Page 10 of 13 affirmed, holding that "a surveyor of a disputed boundary line does not owe a duty of care to a non -reliant third party adjacent landowner."

To support a claim for slander of title, a plaintiff must plead facts sufficient to show: (1) a false statement, (2) that the false statement was communicated to someone else (publication), (3) malice, and (4) special damages. The Maryland Court of Appeals ruled in theRoundscase that the publication of the alleged false surveys and other development documents could have affected the marketability of the plaintiffs' titles, such that they have been unable to list their properties for sale; and that therefore these allegations were sufficient to survive the defendants' motion to dismiss, and ordered the parties to go to trial.

As stated often in many well -respected treatises on land title boundaries, a land surveyor cannot render an opinion as to who owns a tract of land - the surveyor's responsibility is only to locate the land in accordance with written descriptions, and to delineate such apparent unwritten and possible rights which someone other than the record owner have in the land.

A recorded deed may be "good evidence" of the ownership of a parcel of land, but the true test of "ownership" is determined by who has the better "title" to the land, which is not always that easy to determine, and certainly it cannot be decided by an attorney or a land surveyor, but only by a court decision. Just because some deed or tax record may list a certain personas the "owner" of a parcel of land, that alone does not necessarily mean that that person has the "title" to the parcel, and thus may not be the "true owner"!

Surveyors can never think that "title" is synonymous with a particular deed,or some other form of a written instrument. By common definition of the term, when referring to realestate, "title" generally means that a person has the right to the ownership,or the right to the possession of the land - as often written it is "the union of all the elements which constitute ownership."

Often times surveyors are lead astray by making the assumption, in draftinga "surveyor's certification" or an "owner's dedication," that the only manner in which the legal title,and thus ownership, passes to a person is by the execution and recordation ofa deed. Today, with the magic of the internet and its many websites, anyone witha keyboard can be led to believe that he can determine who "owns" a parcel of land- ignoring, of course, the many errors that often times can exist on these websites, and in flawed documents thatare found in the public records. But such internet research does not necessarily give one thecorrect answer.

Page 11 of 13 Title can often pass by the concept known as "operation of law," without the requirement for a recorded deed. Some examples of title passing, or the title being altered, without the benefit of a confirming recorded deed are: (1) joint tenancy - upon the death of a joint tenant'4, the surviving joint tenants become the full owners; (ii) tenants by the entirety - upon the death of one spouse' or once an absolute divorce is decreed between parties owning real estate as such tenants, the parties thereafter own the real estate as tenants in common; (iii) life estates - when the life tenant dies, the title is vested in the remaindermen - whoever they may be; (iv) estates - depending on state law, title to a decedent's real property may have passed directly to the heirs - whoever they may be, or the devisees upon decedent's death, without going through probate, and with the personal representative (the executor) never having an interest in the reality; (v) adverse possession -an adverse possessor acquires the fee simple title to a property at the moment of time when all of the elements of this common law action have been met, without any court action ever having taken place; (vi) easement - the title to the area of an easement which has been abandoned may have vested in the owner of the servient estate, free of the easement; (vii) possibility of reverter or the termination of a determinable fee simple estate - the failure of a special limitation in a deed which results automatically in the of an estate to the original grantor in fee simple absolute, without the need for an entry upon the land by the grantor; (viii) failure of a condition subsequent - when an event gives rises to a right of entry, and in that case the grantor does not obtain a fee simple absolute until he actually enters and retakes the land, as for example, when property is described in an ancient deed with a provision that simply states that the property can "only be used for school house purposes"; and (ix) - upon the intestate death of the owner of land, and without any legal heirs, the land directly passes to the state.

Land surveyors should never give an opinion (written or oral) as to who "owns" a tract of land, as that is beyond the scope of the surveyor's licensing laws.'6 Any statement made by a surveyor giving the name of the "owner" of such land must always be done with great caution, and that statement must be clearly shown with a caveat that it is completely dependent upon information as expressed in a creditable source, like a court order, a title insurance policy based upon a reliable and full title examination, or such other similar document; or even just a simple statement like: "according to the tax and assessment records," and not be just the surveyor's opinion.

" If the death ofa person or the date of his death is at issue, he is not presumed dead in any proceedings... merely because he has been absent from his place of residence and not heard about forany stated period of time. The issue shall go to the court as one of the facts to be determinedupon the evidence. §3-lOim, Courts and Judicial Proceedings, Annotated Code of Maryland. ' A final conviction of felonious,and intentional killing, conspiring to kill, or procuring the killingof a decedent is admissible in a civil proceeding in which a person is allege to bea disqualified person and is conclusive for [not profiting from the property or an interest in the property of the decedent's death- the "Slayer's Rule"] §11-112, Estates and Trusts Article, Annotated Code of Maryland. 16 "It's not what you don't know that gets you into trouble, but whatyou are sure of that ain't true." Mark Twain.

Page 12 of 13 Never hesitate to contact me if you have any questions on any subject which you feel that I may be competent to answer and discuss with you.

James J. Demma, Esquire Miles & Stockbridge P.C. 11 North Washington Street- Suite 700 Rockville, Maryland 20850 Phone: (301) 517-4809 Email: [email protected]

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