Daily Development for Thursday, January 18, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

WORDS AND PHRASES; "IMPROVEMENT:" A real estate developer does not create an "improvement" to real property within the meaning of the Maryland statute of repose when, in the course of development of a subdivision, including building streets and canals, and installing utilities, the developer removes gravestones marking grave sites without also relocating the remains beneath the stones.

Carven v. Hickman, 2000 WL 1868300 (Md. App. 12/22/00)

Plaintiffs alleged that in 1964 the defendant "left no headstone unturned" in clearing property for the development of a 150 lot subdivision. Defendant allegedly removed all the headstones from a family cemetery on the former farm property but did not relocate the remains beneath the headstones, as required by Maryland law.

Defendant raised the Maryland statute of repose, intended to protect builders and architects by setting an absolute time limit, regardless of discovery, within which claims must be brought for defective building activities. The court here reversed summary judgment in favor of defendants by interpreting the statute not to apply to these facts. Most notably, the court concluded that the defendant's activities did not constitute an "improvement."

The court's reasoning was that the removal of the headstones, in and of itself, was not a "work of improvement," and it was that act that the plaintiffs later alleged caused them injury. The court conceded that the digging of canals, the building of streets, and the installation of utilities were themselves "improvements."

The court also concluded that other elements of the Statute of Repose were not satisfied, in that the removal of the gravestones did not constitute a "defective and unsafe condition," and did not result in an "injury" within the meaning of the statute, which requires "damage to property or personal injury" rather than a simple allegation of reduction in value.

Comment 1: The editor takes issue with the courts extraordinarily narrow reading of the term "improvement," and notes that such a reading is likely to bedevil future courts, as it is a pointless interpretation that denies any real meaning to the statute. In many cases, the particular act that actually leads to the alleged injury be it painting with the wrong paint, installation of a too small warning sign, or any of a million other relatively insignificant acts or omissions, would not, standing in isolation, be regarded as a work of improvement. The point is that they are part of a larger project that is itself an improvement.

Here, the plaintiffs were not injured by the removal of the headstones alone. They allege injury because the defendants built a residential subdivision and sold them a lot on which to build a house next to a "yard full of bones." It is the overall work of constructing the subdivision in an inappropriate manner, and not the removal of the headstones themselves, that allegedly led to injury.

The term "improvement" or "work of improvement" is a "trigger word" for lots of legal relationships, from statutes of repose to mechanic's liens to zoning distinctions. The editor's concern is that the narrow focus of the court in this case can lead to misapplication of these terms in other contexts as well.

Comment 2: The editor has fewer concerns with the other interpretations in the court's opinion. Although a subdivision underlain with ancient bones may be "defective," it is not "unsafe" for that reason, and the statute apparently requires that both elements be satisfied. Further, statutes of repose often are limited to cases involving injury to person or property, and not, essentially, contract claims, as was the case here.

Comment 3: The editor includes this case as a DD partly because it does discuss a remedy for an unresolved graveyard in a subdivision, a condition that the editor has seen arise in several instances in the course of the suburban sprawl of metropolitan Kansas City.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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