Select Portfolio Servicing, Inc. v. Saddlebrook West Utility Co. , 455 Md. 313 ( 2017 )


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  • Select Portfolio Servicing, Inc. v. Saddlebrook West Utility Company, LLC, et al.
    No. 71, September Term 2016
    Real Property Law - Liens - Maryland Contract Lien Act. The Maryland Contract Lien
    Act provides a process for creating a lien on real property based on a contractual obligation.
    A party seeking to establish and enforce such a lien must follow the procedures set forth in
    the Act. The resulting lien has priority as of the date a statement of lien is recorded in the
    land records. A declaration recorded by a developer in the land records that creates a
    contractual obligation on the part of future homeowners to pay an annual assessment to
    finance the developer’s construction of water and sewer infrastructure and that gives notice
    of a lien for the homeowner’s failure to fulfill that obligation does not itself create a lien
    unless the procedures of the Act are followed. Maryland Code, Real Property Article,
    §14-201 et seq.
    Circuit Court for Prince George’s County
    Case No. CAE12-06289
    Argument: March 6, 2017
    IN THE COURT OF APPEALS
    OF MARYLAND
    No. 71
    September Term, 2016
    SELECT PORTFOLIO SERVICING, INC.
    V.
    SADDLEBROOK WEST UTILITY COMPANY,
    LLC, ET AL.
    _____________________________________
    Barbera, C.J.
    Greene
    Adkins
    McDonald
    Watts
    Hotten
    Getty,
    JJ.
    ______________________________________
    Opinion by McDonald, J.
    ______________________________________
    Filed: August 16, 2017
    A lien on real property is a right based on contract, statute, or common law to have
    a debt or charge satisfied out of the particular property.1 Three common points of dispute
    about a lien are (1) whether one may be established; (2) if so, how; and (3) when it is
    established. The first two issues relate to the creation of a lien; the third to its priority.
    With some exceptions, the priority of a lien is determined by the date it is recorded in the
    land records.
    At issue in this case is the use of a lien as part of a deferred financing arrangement
    for the construction of the water and sewer infrastructure to serve a new home
    development. There is no dispute that a lien can be created on the developed property to
    secure the payment of an assessment for the construction of that infrastructure. There is,
    however, a dispute as to when that lien takes effect – which must be resolved by answering
    how it is created.
    To carry out the deferred financing strategy, the developer in this case, Respondent
    Saddlebrook West, LLC (“Saddlebrook”) made use of an instrument entitled a Declaration,
    which provided for payments of an annual assessment by future homeowners to a related
    entity, Respondent Saddlebrook West Utility, LLC (“Utility”). The Declaration, which
    provided for the granting of a lien by future homeowners to Utility to secure the payment
    1
    Montgomery County v. May Dept. Stores Co., 
    352 Md. 183
    , 195 (1998).
    of the annual assessment, purported to give priority to that lien at a date before the
    development was constructed or any homeowner had granted a lien under the terms of the
    Declaration.
    Petitioner Select Portfolio Servicing, Inc., the holder of deed of trust that arose out
    of the financing of one of the homes in the development, brought this action to clarify the
    relative priority of its interest in that property in relation to the lien asserted by Utility for
    delinquent assessments.
    We hold that the Declaration recorded by Saddlebrook did not itself create a lien on
    the property. Rather, Utility must follow the procedures set forth in the Maryland Contract
    Lien Act, Maryland Code, Real Property Article (“RP”), §14-201 et seq., to establish a lien
    under the Declaration with respect to delinquent assessments – as it did on at least two
    occasions with respect to the particular property that is the subject of this case. The priority
    of that lien is determined by the date of its recording in the land records.
    I
    Background
    A.     Water and Sewer Infrastructure in the Washington Suburban Sanitary District
    The Washington Suburban Sanitary District (“Sanitary District”) is comprised of
    portions of Prince George’s and Montgomery Counties.               The Washington Suburban
    Sanitary Commission (“WSSC”) is a bi-county state agency established by State law to
    construct and operate water supply, sewerage, and storm water management systems in the
    Sanitary District. See generally Maryland Code, Public Utilities Article (“PU”), Division
    II; see also WSSC v. Phillips, 
    413 Md. 606
    , 630-32 (2010); WSSC v. Utilities, Inc, 
    365 Md.
                                                  2
    1, 8 (2001); Katz v. WSSC, 
    284 Md. 503
    , 509 (1979). In 1998, the burden of constructing
    and paying for new water and sewer facilities in a private development to connect to the
    WSSC system was shifted from the WSSC to the developer by statute, although the WSSC
    remains responsible for overseeing that construction and operating the system. Chapter
    516, Laws of Maryland 1998, now codified at PU §23-201.
    This case arises from an instance in which, in accordance with PU §23-201, a
    developer entered into an agreement with the WSSC to assume responsibility for the
    construction of water and sewer facilities for a development in part of the Sanitary District
    located in Prince George’s County. The developer then recorded a document entitled a
    Declaration in the land records of Prince George’s County indicating that the expense of
    creating the infrastructure for the development was to be passed on to future homeowners
    in the form of an annual assessment. The homeowner’s liability was to be secured by a
    lien granted by the homeowner on the homeowner’s property. This case concerns the
    procedure for establishing that lien and its priority.
    B.     Facts
    The relevant facts were largely undisputed and were presented at trial through
    stipulation and documents. To the extent that expert testimony was contested, it had more
    to do with the relevance of the opinion testimony than its substance.
    Saddlebrook, Utility, and the Subdivision
    In the late 1990s, Saddlebrook planned to develop a residential subdivision known
    as Saddlebrook West (“the Subdivision”) in a portion of Prince George’s County that lies
    within the Sanitary District. Saddlebrook planned ultimately to develop a total of 330 lots.
    3
    The dispute in this case relates to the first phase of the Subdivision, which consisted of 187
    lots on which single-family homes would be built.
    In December 1999, Saddlebrook entered into a memorandum of understanding
    (“MOU”) with the WSSC under which Saddlebrook would be responsible for construction
    of water and sewer extensions for the Subdivision, subject to the WSSC’s inspection and
    approval. As part of the plan, Utility would undertake the construction to connect the lots
    in the Subdivision to water and sewer service provided by the WSSC. Responsibility for
    maintenance of the infrastructure in the future would be shared by the WSSC and the
    individual lot owners.
    On February 4, 2000, Saddlebrook purchased the land on which the project was to
    be built. The deed was recorded in the land records for Prince George’s County on
    February 17, 2000.
    The Declaration
    On April 4, 2000, Saddlebrook, as “Declarant,” executed a “Declaration of Deferred
    Water and Sewer Charges” (“the Declaration”) in favor of Utility with respect to the
    Subdivision. The Declaration recited that Saddlebrook and Utility would provide water
    and sewer infrastructure and connections for the lots.2 To recoup the cost of building that
    2
    The Declaration also recited that the WSSC would be responsible for maintaining
    the water and sewer system within public easements in the Subdivision and that lot owners
    would be responsible for maintaining the systems on their respective lots. The WSSC
    would bill each lot owner for the supply of water and sewer services – a charge separate
    from that imposed for construction of the infrastructure.
    4
    infrastructure, the Declaration imposed an annual water and sewer charge in 23 equal
    installments of $700 with respect to each lot in the Subdivision. The charge was to be paid
    by the lot owner to Utility and would be due on January 1 of each year following
    conveyance of the lot to the lot owner.3 Saddlebrook and the builders of the homes in the
    Subdivision were explicitly excluded from the obligation to pay the annual assessment
    during the period of time that they owned lots.
    One paragraph of the Declaration stated that each lot owner, by accepting deed to a
    lot, agrees to pay the annual water and sewer charge to Utility and grants Utility a lien to
    secure payment of that assessment. A later paragraph stated that the lien created with
    respect to each lot would have priority from the date of the recording of the Declaration in
    the land records over “any subsequently recorded or created lien, deed of trust, mortgage
    or other instrument encumbering” a lot. The Declaration stated that, if a lot owner fails to
    pay an annual assessment, Utility may, among other things, foreclose on the lien against
    the lot “in the manner now or hereafter provided for the foreclosure of mortgages, deeds of
    trust or other liens on real property” and foreclose on the lien under the Maryland Contract
    Lien Act. The Declaration stated that a lot owner grants to Utility a power of sale that
    could be exercised in the event of foreclosure of a lien. The Declaration did not state the
    value of the lien it sought to create.
    3
    The Declaration provided that a lot owner could prepay the assessment in full at a
    6% discount.
    5
    Finally, the Declaration stated that “[a]ll provisions of this Declaration, including
    the benefits and burdens, shall touch, concern and run with the land . . . and shall inure to
    the benefit of” Saddlebrook, Utility, and their successors.
    Depending on one’s point of view, this method of deferred financing of the water
    and sewer infrastructure in the Subdivision either disguised the true price of a home in the
    Subdivision or simply decreased the up-front cost of homeownership and thereby made
    such housing more affordable.
    On May 17, 2000, the Declaration was recorded in the land records of Prince
    George’s County. An exhibit to the Declaration identifies by lot, block, and plat number
    the 187 lots to which the Declaration pertains. A “Land Instrument Intake Sheet” for the
    Declaration shows that Saddlebrook paid a $75 recordation charge and a $2 surcharge. No
    recordation or transfer taxes were charged or paid.
    Construction of Water and Sewer Facilities and Homes in the Subdivision
    Saddlebrook contracted with W.F. Wilson & Sons, Inc., to construct and install the
    water and sewer facilities for the 187 lots. On November 21, 2000, the WSSC certified
    that the conditions of the MOU had been satisfied and that service would be provided to
    those lots.
    On October 3, 2001, Saddlebrook entered into a “Lot Purchase Agreement” with
    Maryland Homes CD, LLC (“Maryland Homes”), a builder, for 46 of the lots. A copy of
    the Declaration was attached to the Lot Purchase Agreement and “incorporated [t]herein
    6
    by reference.”4 Under the terms of the Lot Purchase Agreement, Maryland Homes agreed
    to disclose the annual deferred water and sewer benefit charge to each subsequent home
    purchaser as part of the sales transaction.5
    The 187 lots were conveyed to Maryland Homes by separate deeds that each
    covered one or more lots. Maryland Homes built single-family homes on all 187 lots.
    The Property at Issue
    The property that became the setting for the legal issues presented in this case
    involves a changing cast of characters and a series of anomalies of the type familiar to
    anyone who has studied recent foreclosure cases:             unsigned documents, missing
    attachments, incongruous dates, title searches that overlook key filings, deeds endorsed in
    blank, unpaid assessments, expired liens. The confluence of these elements provides a
    bloopers reel for a real property course.6 Of course, had everything been done perfectly on
    all sides, there likely would be no case before us.
    4
    The copy of the Declaration attached to the Lot Purchase Agreement is manually
    dated “October 22, 2001” while the copy recorded in the land records has a typewritten
    date of “April 4, 2000.” In other respects the terms of the two copies appear to be identical.
    This discrepancy is not material to the issue before us.
    5
    See also RP §14-117(a)(2) (contract for initial sale of residential property subject
    to deferred water and sewer charges must disclose estimated cost).
    6
    This is not meant as a reflection on the performance of trial counsel who, on the
    record before us, set a high standard for conducting the trial of a complex case zealously,
    civilly, and expeditiously.
    7
    The property at issue in this case is 8201 River Park Road (“the Property”). It was
    sold by Saddlebrook to Maryland Homes on November 7, 2001; a deed conveying the lot
    to Maryland Homes was recorded in the land records on November 13, 2001. The deed
    states that it is subject to “all easements, covenants and restrictions of record.”
    On April 1, 2002, Charles Bradley, Jr., purchased the Property from Maryland
    Homes for $347,388. He financed the transaction with a $351,922 purchase money
    mortgage. The deed conveying the Property from Maryland Homes to Mr. Bradley, which
    was recorded in the land records on April 23, 2002, states that it is made “subject to all
    easements, covenants, and restrictions of record.”
    Statements of Lien
    Pursuant to the Declaration, the first annual water and sewer charge on the Property
    came due on January 1, 2003. Mr. Bradley apparently failed to pay that charge – or the
    charge that came due the following year on January 1, 2004. As a result, a management
    company acting on behalf of Utility recorded two “Statements of Lien” in favor of Utility
    in the land records with respect to the unpaid charges. In particular, on March 1, 2004, a
    Statement of Lien in the amount of $1,072.50 (plus recording costs of $137.50) was
    recorded against the Property. On November 17, 2004, a second Statement of Lien in the
    amount of $1,365.00 (plus recording costs of $213.80) was recorded.7 Both Statements of
    7
    The record is not clear on how the precise amounts of the liens were calculated.
    8
    Lien recite that the Property is covered by the Declaration and that it is subject to a lien for
    the amount stated pursuant to the Maryland Contract Lien Act.
    Sale of Property by Mr. Bradley to Ms. Mitchell
    Shortly after the second Statement of Lien was recorded, Mr. Bradley sold the
    Property to Sherrylyn Mitchell for $565,000.8 A deed dated January 6, 2005, conveying
    the Property from Mr. Bradley to Ms. Mitchell was recorded in the land records on March
    8, 2005. According to a Land Instrument Intake Sheet that appears in the land records with
    the deed, Ms. Mitchell financed the purchase of the Property with a $480,250 loan secured
    by a deed of trust.9
    In the deed conveying the Property, Mr. Bradley represented that he “has not done
    or suffered to be done any act, matter or thing whatsoever, to encumber the property hereby
    conveyed[.]” However, the deed made no reference to the Declaration or Statements of
    Lien and, unlike the deed that had conveyed the Property to Mr. Bradley, did not explicitly
    state that it was “subject to all easements, covenants and restrictions of record.”
    It does appear that, at some point, perhaps unrelated to this particular conveyance,
    Ms. Mitchell executed a form document entitled “Notice to Purchaser of Deferred Water
    8
    According to her testimony at the trial of this case, Ms. Mitchell had been living
    in the Property for “eleven years” as of the time of trial in September 2013 – i.e., since
    sometime in 2002, well before she purchased the Property. The record does not disclose
    the circumstances under which she was living there or her relationship, if any, to Mr.
    Bradley.
    9
    This deed of trust is not included in the record of this case, nor does the record
    identify the source of the loan.
    9
    and Sewer Charges,” acknowledging the existence of the annual charge for lots in the
    Subdivision. While that document refers to “the Lot,” it does not identify the lot by address
    or otherwise. Next to Ms. Mitchell’s signature appears the handwritten date “9-1-01.” The
    document also bears a signature of a representative of Maryland Homes (designated in the
    document as the “Seller”) with a date of “9/4/01.” These dates are long before the
    conveyance of the Property by Mr. Bradley to Ms. Mitchell, pre-date the conveyance by
    Maryland Homes to Mr. Bradley, and indeed, pre-date the Lot Purchase Agreement
    between Saddlebrook and Maryland Homes. There is no evident solution in the record to
    this puzzle.10
    In any event, whatever knowledge either party to the transaction may have had of
    the annual assessment, the delinquency with respect to the Property, and the action that
    Utility had already taken under the Maryland Contract Lien Act to establish liens with
    respect to that delinquency, the Statements of Lien were not paid, cleared, and released
    upon closing of the sale of the Property by Mr. Bradley to Ms. Mitchell.
    Refinancing the Property with a Predecessor of Select Portfolio
    Ms. Mitchell subsequently sought to refinance the loan on the Property. She applied
    to Long Beach Mortgage Company (“Long Beach”) for a $552,000 loan. In connection
    with the new loan, Long Beach ordered a two-party title search of the Property – i.e., a
    10
    Although Ms. Mitchell herself testified briefly at the trial, neither she nor the other
    parties adduced any evidence providing any further enlightenment concerning this
    document.
    10
    search that included Ms. Mitchell and Mr. Bradley, but not prior owners. The title search
    did not reveal the Declaration. Neither did the title searcher find the two recorded
    Statements of Lien.
    On May 25, 2006, Ms. Mitchell settled on the loan with Long Beach. The loan was
    secured by a deed of trust in favor of Long Beach (“Deed of Trust”), which was recorded
    in the land records on August 18, 2006.11 Presumably because Long Beach was unaware
    of the Statements of Lien, they were not paid, cleared, and released at closing.
    Long Beach apparently sold Ms. Mitchell's loan to JP Morgan Chase Bank, N.A
    (“Chase”).12 Chase in turn eventually sold the loan to Select Portfolio during the conduct
    of this litigation. For simplicity, we shall refer to Long Beach, Chase, and Select Portfolio
    collectively as “the Lender.”13
    Utility Attempts to Foreclose on the Property
    The record is not clear on whether Mr. Bradley paid the annual assessment due on
    January 1, 2005, or whether Ms. Mitchell paid the assessments for the years after the
    11
    The Deed of Trust was re-recorded on November 10, 2009, for the purpose of
    attaching a legal description of the Property. The re-recording is not material to the issue
    before us.
    12
    There was some dispute at trial over whether there was a fumble in the hand-off
    from Long Beach to Chase – i.e., whether the documentation was adequate – but that issue
    is not before us in this appeal.
    13
    Chase filed this action and remained the plaintiff through discovery, motions, and
    trial. Select Portfolio purchased the loan while the case was on appeal and stepped into the
    shoes of Chase, retaining the same counsel and making the same arguments.
    11
    Property was conveyed to her. There appears to be no dispute that she did not pay off the
    liens imposed for the period during which Mr. Bradley owned the Property. In any event,
    Utility apparently took no action to enforce Statements of Lien before they expired in 2007.
    See RP § 14–204(c) (2007) (requiring an action to foreclose under a statement of lien to be
    commenced within three years of the date of recordation).14
    Some years later, on October 7, 2010, Utility commenced a foreclosure proceeding
    in the Circuit Court for Prince George’s County against the Property relating to the unpaid
    water and sewer charges based on the Declaration itself. On March 5, 2012, the Lender
    filed a motion to stay and dismiss the foreclosure proceeding. That same day, the Lender
    filed the declaratory judgment action that gives rise to this appeal. Utility later voluntarily
    dismissed the foreclosure action.
    Declaratory Judgment Action by the Lender
    The Lender’s amended complaint named as defendants Saddlebrook, Utility, Ms.
    Mitchell, the Saddlebrook West Homeowners Association, Inc. (“the HOA”), and the
    trustees who filed the foreclosure action on Utility’s behalf (“Trustees”). The Lender also
    named as defendants the Clerk of the Circuit Court for Prince George’s County, the
    Director of the Prince George’s County Office of Finance, and the Director of the State
    Department of Assessments and Taxation (collectively, the “public defendants”).
    14
    The Maryland Contract Lien Act has since been amended to allow a lienholder
    12 years to commence an action of foreclosure after a statement of lien is recorded. Chapter
    286, Laws of Maryland 2008, codified at RP §14-204(c).
    12
    The amended complaint alleged, among other things, that the Declaration did not
    itself create a lien that gave Utility a priority over the Deed of Trust. It stated that, if the
    Declaration did create a lien, Utility would have had to pay approximately $60,000 in
    recordation and transfer taxes at the time it was filed and would not have had to record the
    Statements of Lien under the Maryland Contract Lien Act.
    Count I of the amended complaint asked the Circuit Court to declare that the
    Declaration was not itself a lien against the Property, that Utility had no security interest
    in the Property, and that the Lender’s Deed of Trust was the first priority lien against the
    Property. On the alternative assumption that the Declaration was intended to create a lien,
    Count II of the amended complaint sought mandamus relief against the public defendants,
    requiring them either to collect recordation and transfer taxes from Utility with respect to
    the Declaration or to remove that document from the land records. Count III of the
    amended complaint alleged that Saddlebrook and Utility had committed a fraud by drafting
    the Declaration in a way that concealed from the public and government authorities that it
    was intended to create a lien directly and asked the court to award compensatory and
    punitive damages, as well as attorneys’ fees.
    The Circuit Court awarded summary judgment in favor of the public defendants
    with respect to the request for mandamus relief in Count II on the ground that there was no
    justiciable controversy between them and the Lender;15 the Lender voluntarily dismissed
    15
    The Circuit Court reiterated this decision at the close of the Lender’s evidence at
    trial.
    13
    its cause of action for damages in Count III. Following discovery, the case proceeded to
    trial on Count I with Saddlebrook, Utility, and Ms. Mitchell (who was self-represented)
    participating as defendants.16
    The Trial
    The Circuit Court conducted a bench trial on September 17 and 18, 2013. As noted
    earlier, the basic facts of the transactions and governing documents were undisputed and
    presented in the form of a stipulation of facts together with joint exhibits. Testimony
    concerning the underlying facts was very limited.17 One of the principals of Saddlebrook
    was called by the Lender to testify concerning some of the background of the development
    that resulted in the recording of the Declaration. There was very brief testimony by Ms.
    Mitchell concerning her purchase and refinance of the Property. A custodian of documents
    for the Lender identified a deed.
    16
    As the Court of Special Appeals noted in its opinion in this case, neither the HOA
    nor the Trustees (who had filed the foreclosure action on behalf of Utility) participated in
    the trial. Although they technically remained in the case as defendants as of the time of
    the trial, neither of these defendants had an interest at stake. The HOA apparently agreed
    with the Lender that the HOA’s lien interest in the Property was junior to that of the Lender
    and the Trustees were joined in the action simply in their capacity as agents of Utility. For
    the reasons explained by the Court of Special Appeals, there is a final appealable judgment
    in this case. 
    229 Md. App. 241
    , 254 n.10 (2016).
    17
    The testimony is outlined in some detail in the opinion of the Court of Special
    Appeals. 
    229 Md. App. 241
    , 255-57 (2016).
    14
    Most of the testimony at the trial was provided by expert witnesses. However,
    instead of offering competing opinions of similar experts, the parties presented opinions
    from different types of experts.
    The Lender presented expert testimony from three individuals with extensive
    experience with title searches and title insurance. They testified that the Declaration would
    be regarded as a notice instrument, as opposed to a lien, by the title insurance industry. A
    title abstractor testified that a lender in a refinance transaction would typically order a “two-
    party” title examination which, in this case, would not have revealed the Declaration
    directly, but which should have revealed the Statements of Lien, which reference the
    Declaration. According to the title abstractor, the Declaration, if discovered, would be
    reported as an “exception” to the title, but not as a lien or encumbrance on the Property –
    i.e., it would affect the scope of the title insurance policy, but not the decision to issue the
    policy.
    An attorney for a title insurance company likewise opined that the Declaration
    would be treated as an exception in a title report – similar to an exception for an easement.
    The Declaration itself would not be regarded by the title insurer as an existing lien or
    encumbrance, but rather as notice of the potential creation of a lien for unpaid charges.
    Discovery of a recording like the Declaration might prompt further inquiry into whether
    payment of the assessment was current.
    In the same vein, an underwriter for a title insurance company opined that the
    Declaration was a notice instrument which would not affect the willingness of a title
    15
    insurance company to issue a policy, as opposed to a lien, which would affect the issuance
    of a policy.
    Saddlebrook and Utility largely did not contest the opinions of the Lender’s experts,
    but argued that they were irrelevant18 and presented the testimony of a real estate attorney
    who had drafted similar declarations to the one in this case and who opined that the
    Declaration in this case was a covenant running with the land that created a lien against the
    Property.19
    At the conclusion of the trial, the Circuit Court asked the parties to submit proposed
    findings of fact and conclusions of law concerning the issues in the case. The parties did
    so.
    Circuit Court Ruling
    On November 20, 2013, the Circuit Court issued a three-page opinion and order that
    concluded that the Declaration “is a valid, enforceable first-priority lien encumbering the
    18
    Saddlebrook argued that the question of whether a title insurance company would
    disclaim liability by noting an exception for the Declaration in a title insurance policy was
    a separate question from whether the Declaration established a lien with priority over the
    Lender’s Deed of Trust.
    19
    The attorney based much of his testimony on his practice of drafting declarations
    in compliance with provisions of the Anne Arundel County Code. He conceded that the
    Prince George’s County Code does not include such provisions.
    16
    [P]roperty ....”20 The court did not explicitly adopt any of the proposed findings of fact or
    conclusions of law submitted by the parties.
    The court held that the Declaration was a covenant running with the land. The court
    further reasoned that the Declaration was a “super lien” in favor of Utility that “takes
    effect” when a lot is sold to the first homeowner – in this case, Mr. Bradley. Since that
    event preceded the recording of the Lender’s Deed of Trust in the land records, Utility’s
    lien had priority over the Deed of Trust. The court rejected the Lender’s argument that the
    Declaration, under such an interpretation, would be invalid under the rule against
    perpetuities.   The court faulted the Lender for not discovering the Declaration by
    conducting a more comprehensive title search and ruled that the failure of the public
    defendants to collect recordation and transfer taxes upon the filing of the Declaration did
    not affect its validity.
    While the court did not expressly address the Lender’s argument that the Maryland
    Contract Lien Act is the sole vehicle for enforcement of any lien created under the
    Declaration, it was implicit in the court’s ruling that the Declaration created a first-priority
    lien that it rejected that argument.
    20
    The Circuit Court initially issued its opinion and order on November 5, 2013, but
    later re-issued it to correct a typographical error.
    17
    Appellate Proceedings
    The Lender noted a timely appeal.21 The Court of Special Appeals affirmed the
    judgment of the Circuit Court in a thorough opinion. 
    229 Md. App. 241
     (2016). The
    intermediate appellate court first reviewed Maryland case law concerning the rule against
    perpetuities and concluded that the Declaration was not unenforceable on that ground. It
    next agreed with the Circuit Court that the Declaration was a “covenant running with the
    land” and that the Lender lacked standing to challenge the non-payment of recordation and
    transfer taxes in connection with the recording of the Declaration. Finally, it turned to the
    “complex legal question” whether the Declaration itself created a lien with priority over
    the Lender’s Deed of Trust. It concluded that the recordation of the Declaration created a
    lien that secured the payment of the annual assessment, whether considered in reference to
    the Maryland Contract Lien Act or otherwise, and that the lien had priority over the
    Lender’s later recorded Deed of Trust on the Property.
    The Lender then filed a petition of a writ of certiorari which we granted.
    21
    Only Saddlebrook and Utility have appeared as appellees. The other remaining
    defendants named in the amended complaint – Ms. Mitchell, the HOA, and the Trustees –
    have not participated in the appeal.
    18
    II
    Discussion
    The Lender has raised three issues, which we describe as follows:
    1.     Could a lien be created on the Property by the Declaration without
    following the procedures of the Maryland Contract Lien Act?
    2.     To the extent that the Declaration purported to establish a lien on the
    Property, did it violate the rule against perpetuities?
    3.     Did the Lender have standing to challenge the acceptance of the
    Declaration by the clerk of court for recording in the land records on
    the ground of nonpayment of recordation and transfer taxes?
    For the reasons set forth below, we answer the first question “no.” Accordingly, we
    need not, and do not, discuss the second and third issues.
    A.     Standard of Review
    Pursuant to Maryland Rule 8-131(c), when an action is tried without a jury, an
    appellate court reviews the case on both the law and the evidence. We accept the trial
    court’s findings of fact unless they are clearly erroneous. However, we review the trial
    court’s conclusions of law and application of the law to the facts without deference to the
    trial court. Tribbitt v. State, 
    403 Md. 638
    , 644 (2008).
    B.     Creation and Enforcement of Liens under the Maryland Contract Lien Act
    We begin with a short review of the provisions and history of the statute that plays
    a central role in this case – the Maryland Contract Lien Act.
    1.     The Statute
    The Maryland Contract Lien Act addresses the creation and enforcement of a lien
    on real property arising from a breach of contract. For purposes of the statute, a “contract”
    19
    is “a real covenant running with the land or a contract recorded among the land records of
    a county or Baltimore City.” RP §14-201(b)(1).22
    A lien may be created and enforced pursuant to the statute only if: (1) the contract
    expressly provides for the creation of a lien and (2) the contract expressly describes the
    party in whose favor the lien is created and the property against which the lien is imposed.
    RP §14-202(a). The lien is to secure only damages, the cost of collection, late charges, and
    attorney’s fees provided for in a contract or awarded by a court. RP §14-202(b).
    To establish a lien, the party seeking to create the lien must, within two years of a
    breach of the contract, give written notice to the party whose property is to be subject to
    the lien and include certain information specified in the statute. 23 RP §14-203(a)-(b).
    Within 30 days after receiving the notice, the property owner may file a complaint in the
    circuit court contesting the establishment of the lien and requesting a hearing. RP §14-
    203(c). In that proceeding, the party seeking to impose the lien has the burden of proof.
    RP §14-203(d). The statute provides additional procedures for the imposition of a lien
    based on a showing of probable cause pending trial, removal of the lien upon the filing of
    bond by the property owner, and a trial to determine any issues relevant to establishing or
    22
    The statute also explicitly includes a declaration or bylaws recorded under the
    Maryland Condominium Act or the Maryland Real Estate Time-Sharing Act within the
    definition of “contract.” RP §14-201(b)(2).
    23
    That information includes identification of the party seeking to create the lien, the
    property, and the contract, a statement of intent to create the lien, the nature of the breach
    and the amount of damages, and notice of the property owner’s right to a hearing under the
    statute. RP §14-203(b).
    20
    denying a lien. RP §14-203(g) - (k). The statute sets out a format for a “Statement of Lien”
    for purposes of recording the lien in the county land records. RP §14-203(j).
    With respect to enforcement of the lien, the statute provides that the lien may be
    foreclosed by the party who obtained the lien “in the same manner, and subject to the same
    requirements, as the foreclosure of mortgages and deeds of trust on property … containing
    a power of sale or an assent to a decree.” RP §14-204(a). The statute preserves the right
    of the lienholder to bring suit for any deficiency against a person personally liable for the
    damages. RP §14-204(b). Currently, the statute requires that any foreclosure action be
    brought within 12 years of the recording of the lien. RP §14-204(c). (As noted earlier, at
    the time of the events underlying this case, the statute had had a three-year deadline for a
    foreclosure action).
    The statute explicitly excludes land installment contracts, deeds of trust, and
    mortgages from its purview. RP §14-205.
    2.       Legislative History
    The legislative history of the statute is instructive. The Maryland Contract Lien Act
    was enacted in 1985 in response to an appellate decision invalidating a law concerning
    liens on real property. Chapter 736, Laws of Maryland 1985.
    At one time, the Maryland Condominium Act24 provided that the annual charge
    owed by an owner of a condominium unit “constitutes a lien” on the unit, with the proviso
    24
    RP §11-101 et seq.
    21
    that a statement of lien be recorded within two years after the assessment came due. RP
    §11-110(d) (1981). The Condominium Act further provided that the lien could be enforced
    through foreclosure. RP §11-110(f) (1981). In January 1985, the Court of Special Appeals
    held, in an unreported opinion, that these provisions were unconstitutional because the
    statute failed to provide procedural due process to the unit owner.            Surfside 84
    Condominium Council of Unit Owners v. Mullen, No. 495, September Term 1984 (Ct.
    Spec. App. January 28, 1985), cert. denied, 
    306 Md. 370
     (1986).25
    In response the Surfside 84 decision, the General Assembly enacted a broader
    statutory scheme to govern not only liens arising from condominium assessments, but also
    those from “a real covenant running with the land, if the contract expressly provides for a
    lien.” Report of Senate Judicial Proceedings Committee concerning Senate Bill 625
    (March 20, 1985). The new statute, entitled the Maryland Contract Lien Act, was designed
    to establish procedural rules that comported with due process for establishing, enforcing,
    or denying a lien based on a contract. 
    Id.
     It was modeled on the statute governing
    mechanics liens. See Golden Sands Club Condominium, Inc. v. Waller, 
    313 Md. 484
    , 491
    25
    The Court of Special Appeals held that the condominium lien procedure
    constituted state action subject to the due process guarantees of the State and federal
    constitutions because a lien was recorded in the land records and enforcement was
    accomplished by instituting court action for foreclosure of the lien. The intermediate
    appellate court noted that the Legislature had also apparently been troubled by this lack of
    procedure as, subsequent to the events in the Surfside 84 case and prior to enactment of the
    Maryland Contract Lien Act, the Legislature had amended the Condominium Act to
    provide for notice to the property owner and a hearing. Chapter 581, Laws of Maryland
    1984.
    22
    n.5 (1988). In a bill review letter, the Attorney General concluded that the procedures set
    forth in the new statute satisfied procedural due process. Letter of Attorney General
    Stephen H. Sachs to Governor Harry Hughes (May 25, 1985). This Court later confirmed
    that that assessment. Golden Sands, 
    supra.
     When the Act was amended in 1998 to
    explicitly encompass assessments related to time share units, the materials related to that
    legislation reiterated that the Act already applied to “covenants running with the land,”
    among other things. E.g., Floor Report for House Bill 1037 (1998).26
    C.     Application to this Case
    Saddlebrook and Utility take the position that the Declaration itself created a lien.
    As noted earlier, the Declaration itself asserts that it establishes a lien on each lot, granted
    at the time a homeowner accepts a deed on the lot, but with priority dating from the earlier
    recordation of the Declaration. Of course, just because a document says something is so
    does not make it so. Saddlebrook and Utility look to four sources of authority for their
    position that the Declaration itself created a lien on the Property: (1) the Maryland Contract
    Lien Act; (2) the common law; (3) the Maryland Rules; and, for want a better term, (4) the
    coattails of the WSSC.
    Maryland Contract Lien Act
    The Circuit Court and Court of Special Appeals both concluded that the Declaration
    created a covenant running with the land. The Lender does not appear to contest that issue
    26
    That bill was enacted as Chapter 722, Laws of Maryland 1998.
    23
    before us. Accordingly, the Declaration fits the definition of “contract” under the Maryland
    Contract Lien Act, and the establishment and enforcement of a lien for nonpayment of the
    water and sewer infrastructure assessment under the Act is appropriate. Indeed, that is just
    what Utility did when it recorded the two Statements of Lien against the Property in 2004.
    But that does not mean that the Declaration by itself establishes an enforceable lien.
    In its opinion in this case, the Circuit Court characterized the Declaration as a “super
    lien.” The use of that label is revealing. As the Court of Special Appeals recounted in its
    opinion, the label “super lien” has commonly been used to refer to liens that secure
    assessments owed to homeowner or condominium associations, such as that provided in
    RP §11-110(d). 229 Md. App. at 281 n.21. As the discussion of the legislative history of
    the Maryland Contract Lien Act above illustrated, the genesis for the Act was a case
    involving just such a “super lien.”
    Saddlebrook and Utility contend, however, that they need not have followed the
    procedures set forth in RP §14-203 of the Act to establish a lien. They argue that the
    recording of the Declaration itself established a lien against the Property under the Act as
    of the date it was recorded.
    Saddlebrook and Utility’s argument is based on a misunderstanding of the Maryland
    Contract Lien Act. They contend that the Act provides for two alternative methods for
    creation of a lien: (1) pursuant to RP §14-202, simply by virtue of the existence of a
    contract that provides for the creation of lien and (2) pursuant to in RP §14-203, by virtue
    24
    of a breach of contract, if the procedures set forth in that section are followed.27 This is a
    misreading of the statute. The various sections of the Act must read together and, when
    one does so, the statute provides a coherent framework for the establishment and
    enforcement of liens that addresses the problem the statute was designed to remedy.
    RP §14-201 contains the basic definitions applicable to the statute. RP §14-202
    defines the universe of contracts for which a lien may be created and the extent of the lien
    – i.e., the contract has to expressly provide for the creation of a lien and must explicitly
    describe the property and party involved; a lien may only secure payment of the listed
    items. In particular, a lien may only secure damages and related costs, which necessarily
    relates the lien to a breach of the contract. RP §14-203 then sets forth the specific
    procedures that must be followed to establish a lien as a result of that breach. RP §14-204
    then sets forth how the lien, once established, may be enforced.
    The process under the statute to create and enforce a lien thus proceeds as follows:
    1 – There must be a contract or covenant running with the land
    recorded in the land records. (RP §14-201(b)).
    2 – The contract or covenant must expressly provide for the
    creation of a lien, identify the party entitled to establish
    and enforce the lien, and identify the property against
    which a lien may be imposed. (RP §14-202(a)).
    3 – Upon breach of the contract or covenant, the party seeking
    to create the lien must provide notice to the property owner
    of the claimant’s intent to impose a lien and, after
    following the Act’s procedures, record a statement of lien
    27
    The Court of Special Appeals apparently accepted this reading of the Act. 229
    Md. App. at 283, 291.
    25
    that secures the damages resulting from the breach and
    related expenses. (RP §14-203).
    4 – The party seeking to enforce the lien may then foreclose on
    the lien in the same manner of a deed of trust. (RP §14-
    204).
    Under the view of Saddlebrook and Utility, RP §14-202 allows for creation of a lien
    simply by virtue of the existence of a contract without any need to follow the procedures
    set forth in the remainder of the Act. The dichotomy that Saddlebrook would read into the
    statute is inconsistent with the statutory language. The statute specifies that a lien is to
    secure “damages” and related costs – i.e., the monetary remedy for a breach of contract.
    Thus, a lien under the statute always relates to a breach of the contract. A lien is not created
    on the date of the recording of the contract because presumably it has not yet been breached
    and there are no damages to secure.
    Saddlebrook and Utility’s construction of the statute is not only inconsistent with
    the structure and language of the Act, but it is at odds with the legislative history of the
    Act. As noted above, the primary purpose of the Act was to provide procedures that
    comported with constitutional requirement of procedural due process. See Golden Sands,
    
    313 Md. at 493
     (“Under the Contract Lien Act, … no lien attaches until after the [property]
    owner has had an opportunity to be heard”). It would be completely at odds with that
    purpose to provide for the creation of a lien by virtue of a contract alone and exempt it
    26
    from the procedures that the statute created. Nothing in the legislative history of the statute
    supports such a reading.28
    The Declaration may be a contract for purposes of the Maryland Contract Lien Act,
    and, as required by RP §14-201(b), recording the Declaration was an essential step for
    establishing a lien under the Act. But the Declaration itself is not a statement of lien and,
    unless Utility follows the procedures set forth in RP §14-203 (as it did on two occasions
    with respect to the Property), it does not have a lien under the Act for unpaid assessments.
    Maryland Common Law
    Saddlebrook and Utility also assert that the Declaration created a lien itself under
    the common law, regardless of whether it did so pursuant to the Maryland Contract Lien
    Act. They identify no authority for a common law right to create such a lien that is not a
    deed of trust, mortgage, or land installment contract.29
    28
    This may be an instance in which headings added by legal publishers have been
    given excessive weight in reading the statute by a party hoping to reach a desired
    interpretation. The Lexis publication of the statute entitles RP §14-202 “Creation of lien
    by contract” and RP §14-203 “Creation of lien as a result of breach of contract,” suggesting
    a false parallelism between the two sections. Neither of those headings was enacted by the
    General Assembly. (Indeed, Westlaw attaches slightly different headings in its publication
    of the Act). Captions can speak loudly, but it must be remembered that they do not speak
    for the General Assembly. Even if the General Assembly had adopted those headings, they
    are not evidence of legislative intent. See Maryland Code, General Provisions Article, §1-
    208.
    29
    Deeds of trust, mortgages, and land installment contracts are explicitly excluded
    from the purview of the Maryland Contract Lien Act. RP §14-205. The Court of Special
    Appeals acknowledged in its opinion that there were no Maryland cases supporting
    Saddlebrook’s effort to find a basis in the common law. The intermediate appellate court
    looked to a single case from Florida where, it perhaps goes without saying, the Maryland
    Contract Lien Act does not apply. 229 Md. App. at 285-88.
    27
    Maryland Rules
    Saddlebrook and Utility also attempt to find a basis for the creation of a lien by the
    Declaration in the definitions in the foreclosure rules adopted by this Court that are codified
    in Title 14 of the Maryland Rules. See Maryland Rules 14-201 et seq. The adoption of
    rules of procedure is not an occasion for the creation of substantive law concerning interests
    in real property and, even if it was, the rules in question govern the procedures for
    foreclosure of a lien, not the creation of the lien.
    In any event, the portions of the rules cited by Saddlebrook and Utility do not
    advance their argument.30 In particular, they cite Maryland Rule 14-202(h), which defines
    a “lien” as “a statutory lien or a lien upon property created or authorized to be created by a
    lien instrument.” They also cite Rule 14-202(i), which defines “lien instrument” to mean
    “any instrument creating or authorizing the creation of a lien on property, including: (1) a
    mortgage; (2) a deed of trust; (3) a land installment contract, as defined in Code, Real
    Property Article, § 10-101(b); (4) a contract creating a lien pursuant to [the Maryland
    Contract Lien Act]; (5) a deed or other instrument reserving a vendor's lien; or (6) an
    instrument creating or authorizing the creation of a lien in favor of a homeowners'
    association, a condominium council of unit owners, a property owners' association, or a
    community association.” (emphasis added).
    30
    Saddlebrook and Utility cite sections (f) and (g) of Maryland Rule 14-202. Since
    this case began, those sections have been recodified as sections (h) and (i). We refer to
    them by their current designations.
    28
    The Declaration fits quite comfortably into this definition of “lien instrument” – i.e.,
    it authorizes creation of a lien under the Maryland Contract Lien Act. A statement of lien
    obtained under the procedures of the Act, such as those that Utility twice obtained against
    the Property in this case, is a “lien” under the rule as “a lien upon property … authorized
    to be created by a lien instrument” – i.e., the Declaration. Nothing in the rule purports to
    authorize a document like the Declaration to create a lien independent of the substantive
    law.
    Coattails of the WSSC
    At oral argument, Saddlebrook and Utility cited the 1998 legislation – now codified
    in PU §23-201 – that shifted responsibility for constructing water and sewer infrastructure
    from the WSSC to developers. They analogized the financing arrangement created by
    Saddlebrook to front foot benefit assessments that had been charged by the WSSC.
    Saddlebrook and Utility suggested that, because of the role given a developer by that
    legislation, the Declaration should have the same lien priority over the Lender’s Deed of
    Trust as a front foot benefit assessment charged by a governmental entity. While creative,
    that argument is unpersuasive. Saddlebrook is not a governmental entity. It has pointed to
    no statute or other authority that would endow it with the priority of a municipal or
    governmental lien.
    It is true that Saddlebrook entered into an MOU with the WSSC. But that MOU
    merely requires Saddlebrook to build the water and sewer infrastructure in accordance with
    the WSSC’s design guidelines and provided for the WSSC to assume control of that
    infrastructure to serve homeowners in the development. That arrangement did not require
    29
    Saddlebrook to finance its obligations under the MOU, much less address the details of any
    such financing. And the MOU does not give a lien related to that financing a lien priority
    that it would not otherwise have.
    Summary
    The Declaration, as a covenant that runs with the land, falls within the definition of
    “contract” under the Maryland Contract Lien Act. A lien to secure the payment of
    delinquent water and sewer charges owed under the Declaration may be established and
    enforced under the provisions of that Act. The Declaration does not create a lien itself that
    is enforceable without following those procedures.
    To the extent that the language of the Declaration attempted to establish priority for
    a lien that did not exist, we do not give it effect. In particular, paragraph 5 of the document
    purported to establish priority for any lien authorized by the Declaration as of the date of
    the recording of the Declaration, while under Paragraph 2 of the document no lien would
    even exist until “granted” by a lot owner – an event that could occur long after the recording
    of the Declaration. The Declaration was recorded before the lots were sold to owners who
    were then obligated to pay a yearly fee to Saddlebrook. Simply stated, the Declaration was
    recorded before anyone had a duty to pay an assessment.
    Finally, we observe that, until they pursued the aborted foreclosure action that led
    to this case, Saddlebrook and Utility apparently treated the Declaration as a contract that
    allowed for the creation of a lien if the contract was breached. At the time of recording,
    Saddlebrook appeared to treat the Declaration as a notice instrument and did not pay
    30
    recordation or transfer taxes, as it would have if the Declaration itself established a lien.31
    Similarly, when the lot owner of the Property failed to pay the annual assessment, Utility
    followed the procedures set forth in RP §14-203 to file a statement of lien against the
    property.
    III
    Conclusion
    For the reasons set forth above, we hold that the Declaration is not itself a lien on
    the Property, but instead authorizes the establishment of a lien pursuant to the Maryland
    Contract Lien Act.
    JUDGMENT OF THE COURT OF SPECIAL APPEALS
    REVERSED. CASE REMANDED TO THAT COURT WITH
    INSTRUCTIONS TO REMAND THE CASE TO THE
    CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY
    WITH INSTRUCTIONS TO VACATE THE DECLARATORY
    JUDGMENT PREVIOUSLY ENTERED AND TO ENTER A
    NEW DECLARATORY JUDGMENT CONSISTENT WITH
    THIS OPINION. COSTS IN THIS COURT AND IN THE
    COURT OF SPECIAL APPEALS TO BE PAID BY
    RESPONDENTS.
    31
    Under the Tax-Property Article, a recordation tax is imposed on any instrument
    recorded in the land records based on the principal amount of the lien at the time of
    recordation. Maryland Code, Tax-Property Article, §§12-101(f)(1)(ii), 12-102, 12-
    105(f)(1). This is not to say that non-payment of those taxes would invalidate the lien, if
    the Declaration in fact created one. Rather, it is evidence that the developer itself did not
    perceive the recording as creating a lien.
    31
    

Document Info

Docket Number: 71-16

Citation Numbers: 167 A.3d 606, 455 Md. 313, 2017 WL 3498164, 2017 Md. LEXIS 556

Judges: McDonald

Filed Date: 8/16/2017

Precedential Status: Precedential

Modified Date: 11/10/2024