Bd. of Trs. v. Carmine's DC, LLC, No. 17-CV-929

• Decision Date: 27 February 2020
• Docket Number: No. 17-CV-929
• Citation: 225 A.3d 737
• Parties: 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.
• Court: D.C. Court of Appeals

225 A.3d 737

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.

No. 17-CV-929

District of Columbia Court of Appeals.

Argued December 4, 2018

Decided February 27, 2020

Michael S. Steadman Jr., with whom Michael N. Russo, Jr., Annapolis, MD, was on the brief, for appellant.

Lance Robinson, with whom Mark London, Washington, 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 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.

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 Fellows¹ 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 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").

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 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) that the alley in question was, in fact, closed⁴ ; 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 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 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...