Deeds and the Determinacy Norm: Insights from Brandt and Other Cases on an Undesignated, Yet Ever-Present, Interpretive Method

39 Pages Posted: 20 Mar 2015 Last revised: 1 Mar 2017

Donald J. Kochan

Chapman University, The Dale E. Fowler School of Law

Date Written: Spring 2016

Abstract

The land one holds is generally only as good as the property rights contained in the deed. The rights contained in the deed are only as good as the ability to get those rights enforced. And, the enforcement is only valuable if it recognizes a determinate meaning in the deeds from the point of conveyance. This Article pens the term “determinacy norm” for deeds to explain a collection of rules for the interpretation of deed terms that aim to make the meaning of deed terms determinate. I contend that, in order to satisfy the determinacy norm for deed interpretation, courts must (and arguably do) interpret the terms in deeds and land grants as having a fixed meaning set contemporaneously with the transfer and based on the discernable intent and expectations of the parties at the time of the conveyance or grant. This norm runs through existing case law and is pivotal to facilitating an effective property system. But, courts have failed to recognize either the term (or even the organizing principle) that is the determinacy norm.

As an illustrative example, some see the 2014 U.S. Supreme Court case of Brandt Revocable Trust v. United States as just a railroad right-of-way decision. But a closer look reveals that it is a good exemplar of courts striving to add determinacy to deeds and equivalent instruments like statutory land grants. Brandt reveals a pattern of U.S. Supreme Court jurisprudence that the Court itself is not adequately articulating where the determinacy norm lurks in the substructure of opinions.

We should more directly recognize the determinacy norm’s presence in private deed and public land grant cases. Doing so will allow us to better monitor and check the actions of judges to be sure that they are living up to the constraints of the determinacy norm. Such monitoring will help us better identify and protect the rights in the deeds that help organize our property system.

Keywords: deeds, statutory land grants, statutory reservations, land patents, determinacy, indeterminacy, rule of law, real property, property rights, conveyances, conveyancing, real estate, predictability, certainty, neutrality, objectivity, land use

Suggested Citation

Kochan, Donald J., Deeds and the Determinacy Norm: Insights from Brandt and Other Cases on an Undesignated, Yet Ever-Present, Interpretive Method (Spring 2016). Florida State University Law Review, Vol. 43 (2016, Forthcoming); Chapman University, Fowler Law Research Paper No. 15-18. Available at SSRN: https://ssrn.com/abstract=2580779 or http://dx.doi.org/10.2139/ssrn.2580779

Donald J. Kochan (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States
714-628-2618 (Phone)
714-628-2576 (Fax)

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