See 3 Powell on Real Property ¶ 410 (1993); William B. Johnson, Annot., Locating Easement of Way Created by Necessity, 36 A.L.R.4th 769 (1985); Bode v. Bode, 494 N.W.2d 301, 303 (Minn.Ct.App. 1992). WMAC relies on the decision in Myerberg, Sawyer Rue, P.A. v. Agee, 51 Md. App. 711, 446 A.2d 69 (1982), to support its contention that title is rendered unmarketable when there is no recorded right of ingress and egress between a property and a public roadway. The Maryland Court of Special Appeals in Myerberg concluded that title is not marketable "[i]f there is a reasonable probability that the purchaser may be subjected to the hazard of litigation to defend his title. . . ."
Although courts vary in their understanding of title marketability, compare Chicago Title Inc. Co. v. Kumar, 24 Mass. App. Ct. 53, 506 N.E.2d 154 (1987), with Myerberg, Sawyer Rue, P.A. v. Agee, 51 Md. App. 711, 446 A.2d 69 (1982), here the policy has a specific definition, and United Bank makes no effort to show that its concerns fell within this definition. The magistrate judge by-passed this issue by concluding that a "right of access" existed to the Spencer Lake property without regard to access through the intervening property.
That argument, which completely ignores the explicit policy language provided, does not lead to the finding that the trespassers' presence renders title unmarketable. See United Bank v. Chicago Title Ins. Co., 168 F.3d 37, 40 (1st Cir.1999) (“Although courts vary in their understanding of title marketability, compare Chicago Title Ins. Co. v. Kumar, 24 Mass.App.Ct. 53, 506 N.E.2d 154 (1987), with Myerberg, Sawyer & Rue, P.A. v. Agee, 51 Md.App. 711, 446 A.2d 69 (1982), here the policy has a specific definition, and United Bank makes no effort to show that its concerns fell within this definition.”). In the unmarketability provision context, moreover, “the insured will be indemnified for loss due to a finding that the title is unmarketable because of a defect which existed prior to the policy's effective date. It does not insure that the title will remain marketable in the future.”
As that court more recently reiterated, the "need for . . . litigation to hold or obtain good title is an essential element in determining marketability." Myerberg, Sawyer Rue, P.A. v. Agee, 51 Md. App. 711, 446 A.2d 69, 71 (1982) (citing and discussing Berlin v. Caplan, 211 Md. 333, 127 A.2d 512 (1956)). It follows from the foregoing discussion that the encroaching step footing constitutes a defect in or an encumbrance on KayFirst's title to Parcel 4 and, moreover, renders its title to that property unmarketable.
Whether title to real estate is marketable is a question of law for the court. Wilfong v. W.A. Schickedanz Agency, Inc., 85 Ill. App.3d 333, 40 Ill.Dec. 625, 406 N.E.2d 828, (1980); Myerberg, Sawyer Rue, P.A. v. Agee, 51 Md. App. 711, 446 A.2d 69 (1982). In this case, the fence encroached approximately 17 feet into the city street, the garage encroached approximately eight feet, and the actual residence encroached approximately four feet. Clearly, such substantial encroachments subjected Buyer to potential litigation involving the purchased property.
We find the following cases, however, persuasive in our consideration of the sufficiency of Taylor's objection.SeeMiller v. State , 380 Md. 1, 843 A.2d 803 (2004) ; Jones v. State , 229 Md. 472, 184 A.2d 809 (1962) ; Tichnell v. State , 287 Md. 695, 415 A.2d 830 (1980) ; Malaska v. State , 216 Md. App. 492, 88 A.3d 805 (2014) ; Robinson v. State , 209 Md. App. 174, 58 A.3d 514 (2012) ; Somers v. State , 156 Md. App. 279, 846 A.2d 1065 (2004) ; Myerberg, Sawyer & Rue v. Agee , 51 Md. App. 711, 446 A.2d 69 (1982) ; Huff v. State , 23 Md. App. 211, 326 A.2d 198, cert. denied , 273 Md. 721 (1974) ; White v. State , 8 Md. App. 51, 258 A.2d 50 (1969), cert. denied , 257 Md. 737 (1970) ; Mason v. State , 18 Md. App. 130, 305 A.2d 492 (1973).Horton v. State , 226 Md. App. 382, 130 A.3d 1002 (2016) ; Chaney v. State , 42 Md. App. 563, 402 A.2d 86 (1979), rev'd on other grounds , 304 Md. 21, 497 A.2d 152 (1985) ; Randolph v. State , 193 Md. App. 122, 996 A.2d 907 (2010) ; Morrow v. State , 47 Md. App. 296, 423 A.2d 251 (1980), aff'd , 293 Md. 247, 443 A.2d 108 (1982).
The defense argues that although the Plaintiff based its claims on a negligence theory, the claims are—in reality—an action for breach of contract. The defense further argues that, in that case, there can be no liability on the part of Chicago Title. In the case of Myerberg, Sawyer & Rue, P.A. [ v. Agee ], [51 Md.App. 711, 446 A.2d 69 (1982),] a law firm was hired to search title for the purchasers of real estate and, in doing so, failed to detect in its title search that there was no right of ingress and egress to the parcel to be purchased. The purchasers cured the defect themselves and then filed suit against the law firm.
"`A marketable title is one which is free from encumbrances and any reasonable doubt as to its validity and such that a reasonably intelligent person, who is well informed as to the facts and their legal bearing, and who is ready and willing to perform his contract, would be willing to accept in the exercise of ordinary business prudence.'" Myerberg, Sawyer Rue v. Agee, 51 Md. App. 711, 716, 446 A.2d 69 (1982), quoting Berlin v. Caplan, 211 Md. 333, 343-44, 127 A.2d 512 (1956). Moreover, the Policy makes the lack of a right of access a separate and independent ground of recovery.
Id.Sinks cited and distinguished Myerberg, Sawyer Rue, P.A. v. Agee, 51 Md. App. 711, 446 A.2d 69 (1982), in which a lawyer had ostensibly guaranteed access. The Mostrongs failed to establish either factually or as a matter of law that marketable title in this instance necessarily included legal access to the property.
That is ordinarily a jury issue. See Loch Hill Construction Company, Inc. v. Fricke, 284 Md. 708, 715, 399 A.2d 883 (1979); Myerberg, Sawyer Rue v. Agee, 51 Md. App. 711, 724, 446 A.2d 69 (1982). This is true even though, as is often the case, the facts upon which the resolution of the issue depends are undisputed. Where the question involves the reasonableness of an action, it must be determined by choosing from among the inferences which the undisputed facts permit.