Read the Deed Carefully, Especially the Words “Subject To”

by Isaac Benmergui, Esq on February 4, 2014

Don’t you just hate it when a construction or property company changes things around, almost without your say in it? That’s such the case when Patrick Wagner throws his hands up in disgust as the Crossland Construction Company, Inc. burdens his property with a change or damage due to an express or implied roadway easement, claiming injunctive relief and damages. Sadly, though, the district court filed summary judgment for the construction company, examining the Englishrhetoric in the warranty deed from the perspective of the construction company without recognizing the plain language of these two words: “subject to.”

As always, with any legal niche, plain language is key. You almost have to be a grammar wiz to really get into this sort of stuff. Without a doubt, though, Wagner saw a problem, especially when the district court filed their opinion in favor of Crossland. So what did he do?

He took it to the Supreme Court, and rightly so. After reviewing the language of the law, it was clear as crystal. The words “subject to” in any warranty deed doesn’t really connote a reservation of rights as it can be used in some sentences. Rather, in this case, “subject to” refers to a limitation on the grantor’s warranty.

The Supreme Court effectively found that there were genuine issues related to material fact about an implied easement and whether it exists. While the justices reversed the decision, the case was, in fact, remanded for further deliberation – yet again, another case where just two words can change everything.

Previous post:

Next post: