Board of Trustees, The Grand Lodge of the Independent Order of Odd Fellow of the District of Columbia v. Carmine's DC, LLC

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CV-929
BOARD OF TRUSTEES, THE GRAND LODGE OF THE INDEPENDENT ORDER OF THE ODD
FELLOWS OF THE DISTRICT OF COLUMBIA, APPELLANT,
v.
CARMINE’S DC, LLC, ET AL., APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(CAR-7709-13)
(Hon. Brian F. Holeman, Trial Judge)
(Argued December 4, 2018 Decided February 27, 2020)
Michael S. Steadman Jr., with whom Michael N. Russo, Jr. was on the brief,
for appellant.
Lance Robinson, with whom Mark London was on the brief, for appellees.
Before FISHER and EASTERLY, Associate Judges, and FERREN, Senior Judge.
EASTERLY, Associate Judge: This court has recognized that, “[w]here the
right to use real property is at issue, . . . [c]larity is best.” Martin v. Bicknell, 99
A.3d 705, 706 (D.C. 2014). More particularly, the creation of “express
easement[s], acknowledged in a deed conveying ownership of property, is always
2
preferred under the law.” Id. at 708. Given this preference, courts should not be
less inclined to enforce the terms of a written agreement memorializing a grant of
an easement in a bargained-for exchange; rather we should enforce such
agreements just as we would any other valid contract.
Here, the parties signed a written agreement whereby the owner of a
building agreed to sell its immediately adjacent property, with the
acknowledgement that this property would be developed, but reserved the right to
“install and operate” a restaurant exhaust system in an area outside its building.
The terms of the agreement further provided that this right of use was binding on
the purchaser’s “successors and assigns” and would “run[] with the land.” This
unambiguous language created what the buyer, the seller, and later the developer,
all recognized was an “easement,” i.e., an “interest in the land owned by another
person, consisting in the right to use or control the land for a specific limited
purpose.” Id. Moreover, the surrounding circumstances of this express
easement—the fact that it was repeatedly reaffirmed, publicly recorded, and
concretely honored—reinforced the obvious aim of the plain language to create an
easement.
3
The trial court, however, concluded that the language of this agreement was
not specific enough to create an express easement. In addition, it determined that
the creation of an express easement was defeated either because the agreement
omitted nonmaterial terms—the easement’s exact location—or because of the
seller’s nonuse of the easement it had contracted to possess. To the extent the trial
court determined its analysis and conclusion was compelled by our precedent, it
was mistaken. Accordingly, we reverse and remand for entry of the requested
declaratory judgment that appellant, the Board of Trustees, The Grand Lodge of
the Independent Order of Odd Fellows of the District of Columbia (the “Odd
Fellows”), possesses an express easement to a vent shaft located on property now
owned by Jemal’s Douglas Stereo, LLC and leased by Carmine’s DC, LLC, the
appellees (“Jemal’s/Carmine’s”).
I. Facts and Procedural History
The Odd Fellows 1 acquired the land currently located at 419 7th Street NW
in 1860 and constructed the seven-story Mayer Building on that site in 1917. The
1
The Independent Order of Odd Fellows (also referred to in legal
documents as IOOF) is a fraternal organization that originated in England and
established its first lodge in the United States in about 1806. See History, Indep.
Ord. of Odd Fellows, The Sovereign Grand Lodge, https://perma.cc/YC5G-KBV3.
4
United States General Services Administration (“GSA”) subsequently acquired the
surrounding lots of land, which were separated from the Mayer Building by a
public alleyway. The diagram in Appendix A shows the locations of the alley, the
Mayer Building (labeled “IOOF Property”), and GSA’s lots surrounding the Mayer
Building (labeled “Project Property”).
By 1998, GSA had formed a plan to sell its property to a developer. As part
of that process, GSA prepared for the closing of the public alley (the “Alley Land”)
to allow for construction immediately adjacent to the existing Mayer Building.2
Because the Odd Fellows owned a reversionary interest to 966 square feet of the
Alley Land, 3 GSA negotiated an agreement whereby the Odd Fellows would sell
its reversionary interest to GSA in exchange for $85,000.00 and a number of other
commitments. This bargained-for exchange was memorialized in the 1998 Alley
Closing Agreement (the “1998 Agreement”).
2
See D.C. Code §§ 9-202.01 to .15 (2019 Repl.) (providing procedures for
the closing of alleys and streets).
3
When an alley in the District is closed, “title to the land shall revert to or
be vested in fee simple to the record owners” surrounding the alley. D.C. Code
§ 9-202.12.
5
The 1998 Agreement expressly provided that the sale of the Odd Fellows’
reversionary interest in the Alley Land would be “subject to the easements in favor
of [the Odd Fellows] as hereinafter described and upon terms and conditions set
forth hereinbelow,” including the following:
If and when GSA’s [p]roperty is developed and as a
condition for any such development, GSA shall require
that the development be designed so as to accommodate
or not to preclude the installation and operation of an
exterior restaurant exhaust system servicing the Mayer
Building. Notwithstanding the prior sentence, the [Odd
Fellows] retain[] any and all prevailing rights to install
and operate a restaurant exhaust system to service the
Mayer Building.
The parties further specified that “[a]ll terms of this Agreement shall be binding
upon, and inure to the benefit of and be enforceable by the parties hereto and their
respective legal representatives, successors[,] and assigns”; that “[t]he covenants
and conditions herein contained shall be deemed real covenants running with the
land”; and that the 1998 Agreement would be publicly recorded.
The record before us does not indicate that the 1998 Agreement was itself
separately, publicly recorded after its execution. But it was subsequently publicly
recorded in 2000 when GSA and the District of Columbia signed a Declaration of
Covenants (the “2000 Declaration”) pertaining to the property GSA planned to
develop, including the reversionary interest in the Alley Land purchased from the
6
Odd Fellows. In addition to identifying a number of other covenants specific to
GSA and the District, the 2000 Declaration incorporated by reference and attached
as an exhibit the 1998 Agreement between GSA and the Odd Fellows to create a
“single recordable” document. The 2000 Declaration reaffirmed that all of the
listed covenants ran with the land and were binding on the parties’ respective
successors and assigns “in perpetuity.” This 2000 Declaration, with the appended
1998 Agreement, was publicly recorded on September 26, 2000.
GSA hired Jefferson at Penn Quarter (“JPI”) to develop the property, and, in
2001, the Odd Fellows, GSA, and JPI executed an Estoppel, Assumption,
Indemnity, and Termination of Easement Agreement (the “2001 Agreement”).
The parties entered into the 2001 Agreement to, in part, “confirm the existing state
of facts as to the Alley Closing Agreement” and “establish the future rights and
obligations among GSA, [the Odd Fellows,] and JPI or its successor-in-title . . . .”
The 2001 Agreement acknowledged (1) that GSA had, pursuant to the 1998
Agreement, purchased the Odd Fellows’ reversionary interest in the alley in
consideration for certain commitments by GSA, including the accommodation of
an exterior restaurant exhaust system that would service the Mayer Building; (2)
7
that the alley in question was, in fact, closed 4; and (3) that the 2000 Declaration
(appending the 1998 Agreement) had been executed and recorded. The 2001
Agreement further detailed which portions of the 1998 Agreement remained
unperformed, including satisfaction of certain covenants and conditions that the
parties labeled “Development Requirements.” One unfulfilled Development
Requirement was the expectation that JPI would “plan[] the development so that
such development can accommodate and not preclude the installation and
operation of an exterior restaurant exhaust system servicing the Mayer Building,
which shall be operated by [the Odd Fellows].” Finally, the 2001 Agreement
provided that its “terms, covenants, conditions, rights, and obligations . . . shall run
with the land and shall be binding upon and inure to the benefit of the heirs,
successors, executors, administrators, and assigns of the parties hereto.”
The 2001 Agreement not only reaffirmed and bound JPI to the 1998
Agreement, but it also appended the 1998 Agreement and JPI’s architectural plans
4
The easement “terminated” by the 2001 Agreement was a “Temporary
Alley Easement” also created in the 1998 Agreement that gave the Odd Fellows
right to use the alley after it sold its reversionary interest in the land to the GSA
until development commenced.
8
for the project (the “Esocoff drawings”), 5 one of which showed a small box
consistent with a vent shaft just to the north of the Mayer Building and its property
line. See Appendix B. In the 2001 Agreement, the Odd Fellows approved these
plans and “confirm[ed] that a project built in substantial accordance with [them
would] satisfy the Development Requirements.” The 2001 Agreement, with the
1998 Agreement and Esocoff drawings attached, was publicly recorded on May 8,
2001.
Following the 2001 Agreement, the land surrounding the Mayer Building
was developed and a vent shaft that could accommodate an exterior restaurant
exhaust system was constructed. The shaft was in the location shown on the
original Esocoff drawing. It was built on the southernmost wall of 425 7th Street
NW, the property immediately north of the Mayer Building.
In 2003, while construction was ongoing, JPI reached out to the Odd
Fellows to ask if it wanted to install ductwork for a kitchen vent in the vent shaft
JPI had built, explaining that JPI was drywalling the space and it would be more
5
In the trial court, the parties referred to these sketches as the “Esocoff
drawings” because they were prepared by JPI’s architectural firm, Esocoff &
Associates.
9
difficult and expensive to install ductwork later. The Odd Fellows responded that
it had no current plans “to install the necessary equipment” to convert the vent
shaft into a restaurant exhaust system, and that if and when it leased the space to a
restaurant, it envisioned that the restaurant owner would bear the cost of installing
this equipment. In the meantime, the Odd Fellows proposed to use the shaft either
as a “fresh air duct” or to seal both its ends. In an April 2004 letter, JPI expressly
voiced “no objection” to the former proposal and by its silence voiced no objection
to the latter. The Odd Fellows ended up not needing a fresh air duct. It did not
have any further communication about the vent shaft with JPI.
In 2007, JPI sold 425 7th Street NW to Jemal’s Douglas Stereo, LLC.
(“Jemal’s”). The Special Warranty Deed transferring title of the property
acknowledged both the 2000 Declaration and the 2001 Agreement. Attached to the
Contract of Sale between the two companies were drawings of the property
completed by Esocoff & Associates that included a small box consistent with the
vent shaft in the southernmost wall of 425 7th Street NW, 6 which, in that diagram,
was labeled “Retail Space A.” See Appendix C. In 2009, Jemal’s entered into a
6
Both the drawing attached to the 2001 Agreement and the drawing
attached to the Contract of Sale show the box in approximately the same location.
Compare Appendix B, with Appendix C.
10
fifteen-year lease with Carmine’s Restaurant for a part of 425 7th Street NW,
including the space in which the vent shaft built by JPI for the Odd Fellows is
located. Sometime between 2009 and June 2010, Carmine’s began using the shaft
to satisfy its own business needs.
Upon learning of Carmine’s use of the vent shaft, the Odd Fellows sent two
letters to Jemal’s/Carmine’s in June and July 2010, demanding that Carmine’s
immediately cease its use. In November 2013, the Odd Fellows filed a complaint
against Jemal’s/Carmine’s, which it later amended to include a request for a
declaratory judgment that it was the dominant tenant of an express easement to use
the vent shaft. The Odd Fellows dismissed its other claims, and the case proceeded
to a two-day bench trial on the request for declaratory judgment only.
At trial, the Odd Fellows presented witness testimony and documentary
evidence—including the 1998 Agreement, the 2000 Declaration, and the 2001
Agreement—regarding its interest in the vent shaft.7 Jemal’s/Carmine’s did not
dispute the substance of any of these agreements and called just one witness:
7
The Odd Fellows conceded that its interest “is not exclusive or absolute”
in scope. See Martin, 99 A.3d at 713 (explaining that “servitudes are generally not
exclusive” and that the right to use property as articulated in an easement, in
particular, is usually “shared” (internal quotation marks omitted)).
11
James Duncan, a representative from JPI. Mr. Duncan testified that, at the time of
the 2001 Agreement, the building design was not “fully mature” and the exact
location of the vent shaft that would service the Mayer Building was not fixed.
But he acknowledged that JPI understood there to be an easement agreement with
respect to the vent shaft at issue, and that the vent shaft that was constructed in that
location was built for the Odd Fellows in order to “keep our end of the bargain”
under the 2001 Agreement.
In a written order that incompletely discussed the terms of the 1998 and
2001 Agreements and made no mention of the 2000 Declaration, the trial court
ruled that no express easement had been created.8 The court noted that “there are
no particular words of art necessary to create an easement by express grant,” and
then considered “three factors” derived from this court’s decision in Katkish v.
Pearce, 490 A.2d 626, 628 (D.C. 1985): “(1) the specificity of the intent of the
deed to create an easement . . . , (2) [that] the boundaries of the easement were
spelled out in detail and easily found, and (3) the actions of the parties in interest
prior to and subsequent to the conveyance.” The court determined that the 1998
and 2001 Agreements “d[id] not describe the purported easement with sufficient
8
The trial court also determined that no implied easement had been created.
As neither party has challenged this ruling, we do not discuss it.
12
specificity”; both agreements lacked “a detailed description of the boundaries of
the purported easement”; and the Odd Fellows’ failure to use the vent shaft
“indicate[d] the absence of an expressed easement.” The court accordingly entered
judgment in favor of Jemal’s/Carmine’s. This appeal followed.
II. Analysis
A. The Existence of an Express Easement
Whether an easement has been created is a question of law that we review de
novo. Martin, 99 A.3d at 707. An easement is “an interest in land owned by
another person, consisting in the right to use or control the land for a specific
limited purpose.” Id. at 708 (internal quotation marks omitted). This interest “runs
with the land,” Restatement (Third) of Prop.: Servitudes § 1.1(1) (Am. Law Inst.
2000), which is to say that, subject to notice concerns, it is binding on the servient
property where the easement is located notwithstanding a change in ownership or
occupancy. See Daro Realty, Inc. v. District of Columbia Zoning Comm’n, 581
A.2d 295, 305 (D.C. 1990) (explaining that the restrictive covenant in that case
“ran with the land,” thereby “binding all future owners” to its restrictions).
13
“An express easement, acknowledged in a deed conveying ownership of
property, is always preferred under the law,” Martin, 99 A.3d at 708, because of
the potential “long-term effects” that these interests have “on land use and value,”
Restatement (Third) of Prop.: Servitudes § 2.2 cmt. a. 9 An express easement may
be created through a contract or conveyance. Id. § 2.1(1). “There are no particular
words of art necessary to create an easement by express grant.” Katkish, 490 A.2d
at 628. As with any dispute regarding a written contract, we look first to the plain
language of the purportedly interest-creating document, id., and, if it is clear, that
ends our inquiry. See Found. for Pres. of Historic Georgetown v. Arnold, 651
A.2d 794, 796 (D.C. 1994) (“Deeds, like contracts, are construed in accordance
with the intention of the parties insofar as it can be discerned from the text of the
instrument. If a deed is unambiguous, the court’s role is limited to applying the
meaning of the words . . . .” (citations and internal quotation marks omitted)). If it
is necessary to look beyond the plain language, we examine the “surrounding
circumstances” of the document’s execution. Katkish, 490 A.2d at 628; accord,
Arnold, 651 A.2d at 796 (explaining that in addition to a document’s plain
language, “the parties’ intention is to be ascertained by examining the document in
9
Even so, easements may also be implied or acquired through prescription.
See Martin, 99 A.3d at 708–14.
14
light of the circumstances surrounding its execution and, as a final resort, by
applying rules of construction”); see also Restatement (Third) of Prop.: Servitudes
§ 2.2 cmt. a (acknowledging that “[t]o avoid unfairness, . . . courts generally seek
to ascertain and give effect to the intentions of the parties, even though imperfectly
expressed”).
Here, the terms of the 1998 Agreement selling the Odd Fellows’
reversionary interest in the alley expressly provided that “if and when GSA’s
property is developed,” an event that would likely result in the Mayer Building’s
being hemmed in by other structures, “GSA [would] require that the development
be designed so as to accommodate or not to preclude the installation and operation
of an exterior restaurant exhaust system servicing the Mayer Building.” The
agreement additionally provided that the “[Odd Fellows] retain[] any and all
prevailing rights to install and operate a restaurant exhaust system to service the
Mayer Building.” Read together, see Bank of Am. N.A. v. District of Columbia, 80
A.3d 650, 678 (D.C. 2013) (“In interpreting a contract, we consider the document
as whole . . . .”), this language expressly created an “easement” as this court has
defined that term: it established the Odd Fellows’ “interest in land owned by
another person”—the land surrounding the Mayer Building, owned by GSA—
“consisting in the right to use or control the land . . . for a specific limited
15
purpose”—the Odd Fellows’ right to use that land for an exterior restaurant
exhaust system. 10 Martin, 99 A.3d at 708.
As “no particular words of art” are “necessary to create an easement by
express grant,” it does not matter that the parties did not use the word “easement”
in this particular provision of the agreement. Katkish, 490 A.2d at 628. The
parties did, however, use that terminology in one of the introductory paragraphs of
the 1998 Agreement, explaining that the Odd Fellows would sell its reversionary
interest in the Alley Land to GSA “subject to the easements in favor of [the Odd
Fellows] as hereinafter described.”11 Moreover, other language in the 1998
10
Notably, this agreement is analogous to one of the illustrations of an
easement in the Restatement: “O, the owner of Blackacre and Whiteacre, executed
and delivered a deed to A conveying fee simple in Whiteacre, subject to the
restriction that no structure shall be built, nor shall any vegetation be permitted to
grow, on Whiteacre to a height exceeding 25 feet. The deed states that the purpose
of the restriction is to protect the view from Blackacre, and that the restriction is
intended to run with the land. A servitude burdening Whiteacre and benefiting
Blackacre was created.” Restatement (Third) of Prop.: Servitudes § 2.1 cmt. b,
illus. 2.
11
We note that this language refers to “easements,” plural. For this reason,
as well as those stated above, we are unpersuaded by Carmine’s/Jemal’s argument
that it is significant that the parties, in detailing the Odd Fellows’ specific rights
under the agreement, used the word “easement” just once and not with respect to
the right to install and operate a restaurant exhaust system. See supra note 4. On
these facts, we reject the implication that the failure to use the term “easement” in
connection with the right to install and operate an exterior restaurant exhaust
(continued…)
16
Agreement supports our understanding of this provision as an easement.
Specifically, the 1998 Agreement included language that made clear that it did not
impose obligations solely on GSA, but rather that “[t]he covenants and
conditions . . . contained” in the Agreement would “be deemed real covenants
running with the land,” and would be publicly recorded so as to be enforceable by
the Odd Fellows, its “successors[,] and assigns” against all the world. 12 See Rose
v. Wells Fargo Bank, N.A., 73 A.3d 1047, 1052 (D.C. 2013) (“[T]he recordation
process is designed to protect a property interest against subsequent bona fide
purchasers . . . .”).
To the extent that the trial court thought greater specificity of language than
this was required to create an express easement, it was mistaken, and its reliance
on Kayfirst Corp. v. Washington Terminal Co., 813 F. Supp. 67 (D.D.C. 1993),
was misplaced. The federal district court’s ruling does not provide much detail
about the deed in question, but the defendant’s argument that it created an express
easement appears to have been based only on the inclusion of “[t]he words
(…continued)
system signifies that this obligation was not one that ran with the land, and bound
only the parties to the agreement.
12
We note that the trial court in its order and Jemal’s/Carmine’s in their
brief to this court omitted discussion of this language.
17
‘improvements, easements, and appurtenances thereto’ appearing in the deed
habendum.” Id. at 72 (finding “no evidence of intent on the part of [the contracting
parties] to create the easement in question and no detailed description of any
easement”). The mere presence of those words in a deed is far less evidence of an
easement than we have here, where the 1998 Agreement identified the dominant
and servient properties, the purpose of the easement, and its general location (the
exterior of the Mayer Building) and specified that the obligation ran with the land.
In addition, the trial court effectively ignored the surrounding circumstances
of the execution of the 1998 Agreement, which likewise support an interpretation
of the agreement as creating an express easement. The GSA acknowledged the
existence of the 1998 Agreement in the 2000 Declaration. The GSA and the Odd
Fellows then bound the developer, JPI, to the 1998 Agreement in the 2001
Agreement. Both of these documents reiterated that the commitments contained
therein, including the appended 1998 Agreement, would run with the land, and
both of these documents were publicly recorded. Additionally, the 2001
Agreement included the Esocoff drawings that depicted a vent shaft positioned
outside the north wall of the Mayer Building. See Appendix B. The Odd Fellows
approved these plans, confirming that they provided what it had contracted for. JPI
subsequently constructed a vent shaft that could accommodate a restaurant exhaust
18
system in that location, and a representative of JPI testified that this vent shaft was
built to “keep our end of the bargain.”
By looking instead to other factors to conclude that an express easement had
not been created by the 1998 Agreement, the trial court erred. The court focused
on the absence of “defin[ed] boundaries” for the restaurant exhaust system and
nonuse by Odd Fellows. The court derived these factors from our decision in
Katkish, but there we merely “agree[d] with the trial court” that, as applied to the
facts in that case, those were “the important factors.” Katkish, 490 A.2d at 628.
We did not purport to create a definitive test for the creation of express easements,
much less one that would override the plain-language understanding of a written
contract. See supra.
Furthermore, giving dispositive weight to the factors highlighted in Katkish
is independently flawed because they do not logically apply to the facts of this
case. Regarding the absence of defined boundaries for an exterior exhaust system,
it was clear that the system would have to be located along one of the three exterior
walls of the Mayer Building not facing the street, and it would have been difficult
if not impossible to more precisely locate this system when development of the
property surrounding the building was only anticipated, and presumably no design
19
plans existed. Within the context of the 1998 Agreement, the precise boundaries of
the exterior restaurant exhaust system were thus a nonmaterial term that did not
defeat the creation of an easement. See Carrollsburg v. Anderson, 791 A.2d 54, 61
(D.C. 2002) (“Where an easement in land . . . is granted in general terms, without
giving definite location and description of it, the location may be subsequently
fixed.” (internal quotation marks omitted)); see also Tauber v. Quan, 938 A.2d
724, 730 (D.C. 2007) (“[A] contract must be sufficiently definite as to its material
terms . . . that the promises and performance to be rendered by each party are
reasonably certain. . . . [But] all the terms contemplated by [an] agreement need
not be fixed with complete and perfect certainty for a contract to have legal
efficacy.” (footnote and internal quotation marks omitted)). To conclude otherwise
would be tantamount to holding, contrary to our precedent, that parties cannot
negotiate sales of property for development in return for easements on that land
pre-development. See generally Taylor v. Eureka Inv. Corp., 482 A.2d 354 (D.C.
1984).
Regarding the Odd Fellows’ nonuse of the constructed vent shaft for the
purpose of a restaurant exhaust system, we disagree that this should have factored
into the court’s reasoning at all. Certainly, use may be a factor in clarifying an
intention to grant an easement, but where, as here, that intention is clear, nonuse
20
cannot defeat the creation of an express easement. 13 See Brunthaver v. Talty, 31
App. D.C. 134, 137 (D.C. Cir. 1908) (“Mere neglect to enjoy an easement created
by grant has no greater effect to extinguish the right of the grantee thereto than to
the freehold to which it is appurtenant.”); see also Faulks v. Schrider, 99 F.2d 370,
373 (D.C. Cir. 1938) (explaining that “[o]nce title vests [in an easement acquired
by express grant], it[] stays vested until it passes by grant, by descent, by adverse
possession or by some operation of law such as escheat or forfeiture; but it is
elementary that title does not pass by inaction on the part of the owner”);14 Case v.
Morrisette, 475 F.2d 1300, 1304–05, 1313 (D.C. Cir. 1973) (determining an
easement to use the subject property as a parking lot existed even though the
promised modifications to allow the property to be used for this purpose were
never done, id. at 1304–05, because “[e]vents transpiring after activities assertedly
creating a property interest have no bearing on the question whether the asserted
interest arose,” id. at 1315).
13
Post creation, lack of use and the unauthorized use of an easement by
another may result in the loss of an easement through adverse possession, see
Smith v. Tippett, 569 A.2d 1186, 1189–90 (D.C. 1990), but no claim of adverse
possession has been raised in this case.
14
See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (holding that
decisions by the United States Court of Appeals for the District of Columbia
Circuit published before February 1, 1971, are binding on this court).
21
III. Remaining Issues
Jemal’s/Carmine’s raise a number of other issues, inviting this court to
affirm the trial court’s determination on alternative grounds. We decline to do so.
First, Jemal’s/Carmine’s claim that, even if an express easement was
created, they had neither actual nor inquiry notice of it. This argument is
unpreserved, waived, and meritless. Jemal’s/Carmine’s never argued at trial that
they did not have notice of the 1998 Agreement creating the easement in question,
and they never presented any evidence as to this point. See Clay Props. Inc. v.
Wash. Post Co., 604 A.2d 890, 894 (D.C. 1992) (explaining that a party claiming
to be bona fide purchaser must “establish” that it “acquired the building without
notice” of the property interest in question). To the contrary, they conceded they
had actual notice of the 2001 Agreement, to which the 1998 Agreement was
appended. Their argument was that they did not understand the documents they
knew about to create an easement for the Odd Fellows’ benefit, which is, in
essence, a challenge to the import of the plain language of the 1998 Agreement.
We reject this challenge above.
22
Even if Jemal’s/Carmine’s had preserved a notice challenge, we would reject
it for multiple reasons. Not only did they concededly have actual notice of the
2001 Agreement to which the easement-creating 1998 Agreement was appended,
but they also had at least constructive notice by virtue of the fact that (1) the 1998
Agreement was publicly recorded, twice, as an attachment to both the 2000
Declaration and the 2001 Agreement and (2) all of these documents were explicitly
referenced in the Special Warranty Deed by which Jemal’s took title to the
property. 15 See D.C. Code § 42-401 (2012 Repl.); cf. Clay Props., 604 A.2d at 894(“[A] deed conveying an interest in real property is not effective against
‘subsequent bona fide purchasers’ unless it is recorded.”).
Second, Jemal’s/Carmine’s argue that the Odd Fellows’ request for
declaratory judgment falls outside of the three-year statute of limitations. They
look to the limitations period for trespass and unjust enrichment—the claims the
Odd Fellows voluntarily dismissed. But the operative limitations period is that
“for the recovery of lands”: fifteen years. D.C. Code § 12-301[(a)](1) (2012
Repl.); cf. Zere v. District of Columbia, 209 A.3d 94, 97 n.1, 99 (D.C. 2019)
15
In addition, the Contract of Sale between JPI and Jemal’s appended
drawings showing the vent shaft just inside the south wall of 425 7th Street NW.
See Appendix C.
23
(explaining that an easement is an “interest in land” that may be obtained by
prescription, so long as the record owner does not assert their rights to the property
“for the statutory period of fifteen years” (internal quotation marks omitted) (citing
D.C. Code § 12-301(1))). Relatedly, Jemal’s/Carmine’s also argue in their brief
that declaratory judgment is not an independent cause of action. We have held
otherwise. See McIntosh v. Washington, 395 A.2d 744, 749 (D.C. 1978)
(upholding “the Superior Court’s authority to award declaratory judgments in cases
within [its] jurisdiction”).
Finally, Jemal’s/Carmine’s claim that it would be “inequitable to enforce
[the Odd Fellows’] purported easement” because of the difficulty in restoring the
vent shaft to house a restaurant exhaust system. This plea for equity was not raised
in the trial court. See Pajic v. Foote Props., LLC, 72 A.3d 140, 145–46 (D.C.
2013) (explaining that, as an appellate court, our review is generally limited to
preserved claims). 16 Moreover, Jemal’s/Carmine’s concerns about enforcement of
access to the easement are premature, as the only request for relief in this case was
declaratory judgment establishing that an easement was, in fact, created. We hold
16
For the same reason, we decline to address Jemal’s/Carmine’s contention
that granting judgment in favor of the Odd Fellows would be tantamount to
rendering an advisory opinion.
24
now that it was; a declaratory judgment should have been entered in favor of the
Odd Fellows.
IV. Conclusion
For the foregoing reasons, we hold that an express easement was created and
its location subsequently fixed as the vent shaft located in 425 7th Street NW,
along the southernmost wall abutting the Mayer Building. The judgment of the
trial court is reversed, and we remand with instructions to enter declaratory
judgment for the Odd Fellows.
So ordered.
25
APPENDIX A
26
APPENDIX B
27
APPENDIX C