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Adverse Possession in a Public Street??

The dispute between Nathans’ Associates and Ocean City, Maryland centers on a small commercial building located at 601 S. Atlantic Avenue, (hereafter, the Rapoport building) situated just east of the Ocean City Boardwalk. Nathans’ Associates is a partnership of various Rapoport family members who collectively have exercised dominion over the building since 1912.

The appellate decision is filed as Nathans’ Associates v. Mayor and City Council of Ocean City: 239 Md. App. 638; 198 A.3d 863 (2018). At first glance, this appears to be an easy decision for the court to make. Open possession for 104 years was associated with a permanent structure and continuous business operation, leaving little room for doubt. However, the building was also assumed by city representatives to be within a dedicated public way, which would render the disputed land immune to adverse possession under Maryland common law.

The dispute was simplified somewhat because the city attorney stipulated that all common law elements for adverse possession had been met by Nathans’ Associates and their predecessors. As a result of this stipulation, the only remaining question was whether the Rapoport building was within a dedicated and accepted public street. The stipulations also shifted the burden of proof to Ocean City representatives to prove that the Rapoport building was within a dedicated public way.

Two ultimate issues before the court reflected the critical nature of determining the existence and extent of a public way; both were survey-related.

--- First: Was the building located within the original limits of Ocean City as shown on the original city plat and as described in the original charter? An affirmative to this query was critical for Ocean City because the city attorney relied heavily on an early deed and associated subdivision plat along with the original Ocean City charter as proof that Atlantic Avenue was dedicated and accepted for public use.

Initial reactions by both the city attorney and the lower court judge applied an “everybody knows that” approach to determining the original city limits as described by the charter, but Ocean City failed ultimately to fulfill the burden of proof. No surveyor was on hand to testify on the cities’ behalf regarding the location of the original plat line, or to define the limits of the original city charter. This failure was largely due to the attempt by the city attorney to have an engineer testify on the stand regarding the location of the Rapoport building. The informal approach applied by the lower court was rejected on appeal.

--- Second: Was the Rapoport building located within the limits of a dedicated public highway? An early recorded map clearly shows a town with streets and lots laid out. Atlantic Avenue is shown apparently extending to the ocean shore. This plat would generally be considered a valid dedication of the streets as shown.

The original Ocean City charter was presumed by the city attorney to constitute an acceptance of the street as shown on the existing plat. However, the language of the original charter did not reference the recorded deed and plat, did not include express language of acceptance for any other city streets, and mentioned Atlantic Avenue only in a passing reference within the description of the city limits. This weakness was ignored by city representatives.

Although it would have been a simple matter for the drafters of the original city charter to reference an existing recorded plat and deed, there was no clear reference in the city charter to either the recorded deed or the associated plat of the proposed city.

In order to create a public way by dedication, both dedication and acceptance are required. Dedication of one road cannot be linked with acceptance of a separate area to create a public way.

Regardless of the issues described above, the city representatives ultimately failed to prove the location of the dedicated public way due to the lack of any expert surveyor to testify on behalf of the city.

It is apparent that the representatives of Ocean city made a critical error when they failed to retain a professional land surveyor who could testify as to the location of the various boundary lines in relation to the Rapoport building. As stated by the Maryland Court of Appeals: "Critically, Ocean City did not call, at any time, a licensed surveyor or any other expert witness who could have testified as to the original boundaries of Ocean City as established by the 1876 Deed or interpreted the Plat in relationship to the Property's actual location on the ground and the streets in existence today."

While numerous complex title issues were argued in this case—including practical location of easements, dedication & acceptance, estoppel against a city government, and total or partial abandonment of public easements—the outcome ultimately was determined by the lack of sufficient professional representation for Ocean City.


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