Raistlin

There is a widely-believed caricature of the law and lawyers, at least in the US. It is that the law mandates the use of legalese in order to make sure no one but lawyers has any smurfing clue what we’re talking about, and thus creating business for lawyers. That the law relies on archaic rules and procedures that make no sense in any modern setting to anyone outside the club. That the law is all form and little substance, and that lawyers promote this insanity in order to enjoy their monopoly on knowledge of the correct form to use in order to reach the desired result. You clueless plebeians must then pay us $300/hour in order to translate your simple, brief, and, most worrisomely, understandable statements into an indecipherable haze of big words and confusing sentences that even Iceglow would refuse to read.

There is some basis to these stereotypes, but none more so than in real property law (which is the law governing land and real estate). Let me give you some examples of a possible line in a deed:

Originally Posted by Example 1

Alice gives the Property to Bob “as long as the Property is used as a farm.”

Originally Posted by Example 2

Alice gives the Property to Bob; “but if Bob stops using the Property as a farm, Alice gets the Property back.”

Originally Posted by Example 3

Alice gives the Property to Bob “to use as a farm.”

[Note for any actual lawyers or law students: for the purposes of making this readable, I am simplifying some legal topics and outright ignoring others. The Rule Against Perpetuities can go smurf itself.]

These may sound like the exact same thing, and we’ll assume that the two parties at issue intended the exact same thing in all three cases: Bob is given the property, but it will go back to Alice if he tries to change its use. But they’re not the same, because the magic words are different. And in real property law, the outcome is determined by magic words and rituals. If you don’t say “Abracadabra” exactly five times while waving a magic wand made of the rare breed of oak found only in northern Canada, you might end up with something quite different from what you expected.

Here’s the legal result for you: the first example gives Bob a fee simple determinable, with Alice retaining a possibility of reverter. The second one sets up a fee simple subject to condition subsequent, with Alice only having a right of reentry. The third one gives Bob a fee simple absolute and totally smurfs Alice.

Have you blown your brains out yet? Let’s look at Examples 1 and 2 first.

Despite the intent of the people involved, Example 1 uses magic words that are called “durational language” (“to B, as long as X”). Example 2 uses different magic words that are labeled under “conditional language” (“to B, but if X”).

Well so what? What does it matter if they’re called two different confusing things for completely arbitrary reasons? Obviously this is just part of the hazing ritual for new lawyers: you have to memorize a bunch of ridiculous terms for essentially same thing. “Ha ha,” I can hear you thinking, “you’re the moron studying for the bar and is the only one who gives a crap. This is what you get.” Well smurf you too.

But, no. There are actual consequences between the two. Let’s say in both situations that Bob tears down the barn, stops using the property as a farm, and starts looking for developers to sell the land to. In Example 1, the property rights automatically revert to Alice, and any attorney who tries to negotiate a sale will realize that in the deed. Oops, Alice has been the actual owner since last year when Bob stopped using the property! But in Example 2, Alice does not automatically get the property back, and must exercise her right of reentry: she must demand the property back from Bob, and then sue to get it back if he refuses. So in that hypothetical sale, Bob is free to do whatever he wants as long as Alice never finds out.

Why the difference? Because, and I can only surmise, two very similar cases in England about 400 years ago came out differently for different reasons, and we have followed their glorious and enlightened example ever since. In other words: because smurf you, that’s why.

Now let’s look at Example 3: “Alice gives the Property to Bob to use as a farm.” This example uses neither the durational nor conditional language in the previous examples, but it could be argued sets a condition (and let us say that the condition was intended, just like in the last two). In a rational legal doctrine, let’s say contracts, if a term is ambiguous then we would look at the intent of the parties. “Oh,” we would say, “Alice and Bob, in making the original transfer, clearly intended for Alice to get the property back if Bob tried to change it, so now she gets it back!” In a contract for the use of personal property, like a car, that’s just what would happen. No magic words, no specific language required. Just lay out what you want in understandable language, and we'll try to figure it out.

But this isn’t contracts or any other rational or consistent legal doctrine. This is real property law, and real property law is a fickle god. You may have danced naked around the fire and sacrificed a goat in your prayer for rain, but you forgot to wear the ritual headdress made from the skin of baby rabbits, and so no rain for you. Alice did not use the required magic words to set up any sort of reversionary interest in the property, and so Bob has complete ownership of the property now and forever.

Had enough? This is less than one page of my 80-page real property outline.