Daily Development for Tuesday, August 10, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri firstname.lastname@example.org
EASEMENTS; GRANT; DESCRIPTION: Deed containing description of property parcel and stating that it is for "ingress and egress" is inherently ambiguous on the question of whether parties intended outright ownership or fee, and court will order extrinsic evidence.
Thrasher v. Arida, 888 So. 2d 1173 (Fla. App. 2003)
The 1969 deed carved ten acres (more or less - that's the question) from a forty acre parcel. It contained descriptions of two distinct granted parcels. The first parcel was described by a metes and bounds description set forth in a separate indented block. Everyone agreed that the deed conveyed outright ownership of that parcel. The second parcel was described in a paragraph that was not indented, but set forth at the left margin of the document, and stated: ". . . together with a 50 foot strip for ingress and egress described . . . " followed by a metes and bounds description of the 50 foot strip in question. Below this paragraph there appeared another paragraph, also flush with the left margin, describing the buildings and fixtures transferred that were connected with this chicken and egg farm property.
After transferring the deed, the grantors continued to occupy the retained thirty acres. Apparently the strip described in their 1969 deed also was the principle access for the grantors. They did not reserve an easement over the strip in the deed, but there is a suggestion that they continued to use it for those three years. Then they sold the remaining land in 1972, apparently describing the strip as part of the lands conveyed. The grantee of this deed retained the land from which the parcel had been cut out for three years, and then conveyed it to Thrasher in 1975.
Twenty five years later Arida acquired the property described in the 1969 deed and brought an action to quiet fee title in the strip. The trial court, basing its ruling on a Florida statute that provides that words of limitation in the conveyance of real estate shall be construed to vest fee simple title "unless a contrary intention shall appear in the deed," ruled in favor of Arida without taking any testimony other than studying the deed. The court did rule, however, that there was a common law easement in favor of the owners of the thirty acres remaining when Arida's predecessor got a deed in 1969.
On appeal: held: Reversed.
The court ruled that the 1969 deed was inherently ambiguous and that further evidence should have been taken. It noted the juxtaposition of the paragraphs and the words "for ingress and egress," both suggesting that an easement was created.
Once it concluded that the deed was ambiguous, it noted other evidence taken by the trial court (taken under reservation) to the effect that the original survey upon which the deed language was based identified the strip as an easement and that the grantor told the surveyor that it would be an easement. But the appeals court does not conclude that this evidence conclusively indicated an intent that the strip be an easement. It simply remanded.
Comment 1: One of the problems in relying upon contemporary evidence of the intent of the parties is that neither of the original parties is still holding the land. Both of the parties in this case took title in reliance on the record documents. If these documents were inherently ambiguous, of course they should have raised the issue at the time that they took. But courts should be aware of this reliance concern and not overreach to find ambiguities to overturn the expectations of third parties.
Comment 2: Although one might argue that the ambiguity here was patent, in fact language in deeds stating the property is granted for "ingress and egress" might easily simply state the reason for the grant, and not the nature of the interest. Further, although the paragraphing difference does carry some weight, this might have been purely typographical error. Remember that the personal property, the grantor clearly intended to convey, also was in a paragraph blocked at the margin.
Comment 3: The trial court was of the view that the Florida statute was designed to push aside minor ambiguities and favor fee simple (ownership) construction. Do we have enough here to justify ignoring the statute? If the statute really applies here, the editor would be dubious that there is enough here to overcome it..
But does the statute apply at all? Remember that we don't have a good word for "ownership of everything," in our legal system. "Fee simple" actually describes ownership over time, and is not a description of what use rights are given or retained. The statute used indicated that there was a preference for "fee simple title." The addition of the word "title" does suggest ownership, but the term is not consistently used. So there is a t least an argument that the statute may have nothing to do with this dispute.
Even so, shouldn't we err on the side of transfer of complete ownership and push to the party receiving the deed the duty to make sure that it describes what that party rely intends to acquire?
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