Of Boilerplate and Black’s Law Dictionary

“Legalese” is an oft-cited reason researchers give for their aversion to using deeds. I won’t waste time on my soapbox, preaching about the miracles to be found in the Book of Deeds – just trust me that those miracles are in there, waiting to be discovered. To be sure, the terminology can be a little daunting. Many resources are out there describing the more common (and important) terms to understand such as quitclaim, fee simple, deed of warranty, etc. Most resources, quite correctly, mention learning to recognize standard legal phrasing – commonly called boilerplate.

Let me suggest that the very best thing you can do to get a better understanding of the language of deeds, is to both transcribe and abstract every deed of interest in your research. These are topics unto themselves, but in brief: Transcribing is copying the deed word-for-word, letter for letter (warts and all), while keeping the line breaks and page layout as close to the original as possible. Transcribing forces you to read every word on the page (and think about those words) without the mental “blah, blah, blah”  skimming that is easy to do when encountering a particularly wordy passage. Abstracting is the process of keeping each piece of the transcription (preserving the original order) that is unique to the document you are working with, and removing the rest (boilerplate). The purpose is to create a concise version, accurate to the original and containing all the pertinent information – a version that  is far easier to work with than the original.

Now it’s all well and good to say “remove the boilerplate,” but how do you go about knowing what is important and what isn’t? The short, but not necessarily easy answer, is experience . By doing the transcriptions and abstractions faithfully and regularly, you will begin to recognize the phrases (with variations, of course) that are standard. It’s not easy to maintain that discipline, but I guarantee you it is worth it in the long-run.  And as you start on the path to deed enlightenment, let Black’s Law Dictionary be your guide.

Black’s Law Dictionary is an invaluable reference, not only for deed and property research, but also probate, Common Pleas, or any other record generated by the courts. Take the time to look up words which with you are unfamiliar. Curiosity and relentlessness in the quest for understanding should be a trademark of your research as a whole, so why not take that same approach with the individual pieces? While it’s not necessarily inexpensive, you can find an older version of Black’s Law Dictionary at a reasonable price at half.com, Amazon, or other used or discount retailer. I personally have the 8th edition.[1]

So how about that boilerplate? Ever wonder what some of those words actually mean – those words that Microsoft Word tries to tell you aren’t words? Those words that no matter how sophisticated your voice recognition software, you find yourself arguing with your computer? Here are just a few:

1. Appurtenances

Something that belongs or is attached to something else <the garden is an appurtenance to the land>[2]

2. Hereditaments:

1. Any property that can be inherited; anything that passes by intestacy. 2. Real property; land.[3]

3. Messuages

A dwelling house together with the curtilage (land or yard adjoining a house), including  any outbuildings.[4]

4. Mesne

This is often seen in the chain of title (“…and through mesne conveyances…”) – “Occupying a middle position; intermediate or intervening, esp. in time of occurrence or performance.[5]

5. “To have and to hold”

This is pretty straightforward language in itself, however, this phrase ordinarily marks the beginning of something called the Habendum Clause – “The part of an instrument, such as a deed or will, that defines the extent of the interest being granted and any conditions affecting the grant.[6]Even though this phrase is a marker for boilerplate, and is often fairly standard, you really need to be sure to read the section that follows “to have and to hold” carefully to note any exceptions or interest withheld in the transaction. Below are a couple of terms dealing with future interest you might see in that section.

6. Remainder

1. A future interest arising in a third person – that is, someone other than the estate’s creator, its initial holder, or the heirs of either – who is intended to take after the natural termination of the preceding estate…2. The property in a descedant’s estate that is not specifically devised or bequeathed in a will.[7] This is one of those definitions that is almost more confusing than the term. However, you usually see this in the habendum clause – that any such remainder is also being transferred to the grantee.

7. Reversion

This one might hurt your brain – “1. The interest that is left after subtracting what the transferor originally had; spec., a future interest in land arising by operation of law whenever an estate owner grants to another a particular estate, such as a life estate or a term of years, but does not automatically dispose of the entire interest…2. Loosely, REMAINDER.[8] Similar to remainder, this clause is generally assuring that any rights of reversion of interest due the grantor is transferred to the grantee by the deed.

Again – with the above  terms, or any boilerplate really, it is still important to read through carefully to note any exceptions from standard wording. Those exceptions can be clues that are easy to overlook, as they are buried in terminology. Again, Black’ s Law Dictionary is your friend. As you can see, sometimes, the definition isn’t all that much clearer than the term. In those instances, turn to Google to help find examples that you might be able to better understand.

Sometimes, you may still not be able to completely get your head around a term or concept, but the important thing is to take the time to try, to work at it, to not pass it over because it is confusing and makes your eyes roll back in their sockets.

 


[1] Bryan A. Garner and Henry Campbell Black, Black’s Law Dictionary, 8th ed. (Minneapolis, MN: Thompson West, 2004).
[2] Garner and Black, Black’s Law Dictionary, p.111.
[3] Garner and Black, Black’s Law Dictionary, p.743.
[4] Garner and Black, Black’s Law Dictionary, p.1011.
[5] Garner and Black, Black’s Law Dictionary, p.1011.
[6] definition of Habendum Clause: Garner and Black, Black’s Law Dictionary, p.728.
[7] Garner and Black, Black’s Law Dictionary, p.1317.
[8] Garner and Black, Black’s Law Dictionary, p.1345.

This entry was posted in How-To, Thoughts and Musings. Bookmark the permalink.

Comments are closed.