Last week I saw this tweet by @Torcherama:
I review contracts in my day job and as a volunteer board member. I get the need for legal language – to a point. But, come on. Appurtenant? Don't make me look up words on top of having to read long, complex sentences. It means "belonging to". Lawyers, do better. #PlainLanguage
— Tracy Torchetti (@Torcherama) August 9, 2018
OK, so let’s look at appurtenant. Here’s how it’s defined in Black’s Law Dictionary:
appurtenant adj. (14c) Annexed to a more important thing.
And here’s the definition of the phrase I most associate with appurtenant:
– easement appurtenant (1810) An easement created to benefit another tract of land, the use of easement being incident to the ownership of that other tract. — Also termed appurtenant easement; appendant easement; pure easement; easement proper.
And then there’s the noun appurtenance:
appurtenance (ə-pərt-[ə-]nənts) n. (14c) Something that belongs or is attached to something else; esp., something that is part of something else that is more important <the garden is an appurtenance to the land>.
Appurtenant
You find appurtenant in contracts relating to real estate, securities offerings, and lending. Here are three examples plucked at random from Edgar:
Except for the Leased Real Property and the Beaumont Property and any Real Property rights appurtenant to the Beaumont Property, Seller does not occupy or have any interest in any Real Property.
such Liens are created within 180 days of construction, acquisition or improvement of such assets or property and do not encumber any other assets or property of the Borrower or any Restricted Subsidiary other than such assets or property and assets affixed or appurtenant thereto and the proceeds thereof;
Commercial General Liability Insurance, including Broad Form contractual liability covering the insured against claims of bodily injury, personal injury and property damage (including loss of use thereof) based upon or arising out of Tenant’s operations, occupancy or maintenance of the Project and all areas appurtenant thereto.
Such uses of appurtenant are unnecessarily legalistic. Furthermore, they’re imprecise, in that it’s not clear what the relationship is to the “more important thing.” I recommend using relating instead. Or better yet, be precise.
And instead of easement appurtenant, refer to an easement in the manner used in the Black’s definition.
Appurtenance
Regarding appurtenance, it was used as a defined term in a recent Carl Icahn merger agreement. Here’s the definition and, below it, the only non-inadvertent use of the defined term, in another definition:
“Appurtenances” means, with respect to each Property , the applicable RE Seller ’s, RE Lessee ’s or Propco’s right, title and interest, if any, in and to: (i) all minerals, oil, gas and other hydrocarbon substances on or under the Land ; (ii) all development rights, air rights, or riparian rights relating to the Real Property ; (iii) any interest in and to any streets, alleys, easements, rights-of-way and public ways adjacent to the Land ; and (iv) all strips and gores.
“Real Property” means, with respect to each Property, the Land, the Improvements, all leaseholds, easements, rights and Appurtenances relating to the Land and Improvements and the Fixtures.
Note that use of rights in the definition of Real Property sucks much of the use out of Appurtenance.
And here’s another definition of Appurtenance:
“Appurtenances” shall mean all tenements, hereditaments, easements, rights-of-way, rights, privileges in and to the Land, including (a) easements over other lands granted by any Easement Agreement and (b) any streets, ways, alleys, vaults, gores or strips of land adjoining the Land.
Gotta love tenements, hereditaments, and gores (meaning a small usually triangular piece of land).
If you really need a collective noun, why not use related rights instead of appurtenances? And if you need to use a defined term for the collective noun, strip out gore and other nonsense.
The Upshot
As described in chapter 1 of MSCD, some terms of art are essential in contract drafting. For example, good luck expressing the concept of a security interest without using the phrase security interest.
But many terms of art interfere with understanding without offering sufficient advantages. One example of an unnecessary term of art is hypothecate; I suggest that another is appurtenant and its variants. They’re obscure, and further obscurities trail in their wake.
I asked a knowledgeable real-estate lawyer about appurtenant. They said, “This is sort of a term of art. It ties to “appurtenances,” which goes with “hereditaments.” No one really knows what any of them are, but they often show up in broad descriptions of real property. I don’t think it’s so awful.” Hardly a ringing endorsement.
Hmm. Perhaps ask another real estate lawyer.
A hereditament is just an item of property, capable of being inherited (or otherwise dealt with), and either corporeal (a physical item) or incorporeal (a legal right).
An appurtenance is a hereditament that transfers automatically with some other land without being specifically mentioned. See for example https://www.gov.uk/hmrc-internal-manuals/capital-gains-manual/cg64255
The close association of “appurtenant” with “thereto” is a clue that it is somewhat antiquated, and you might wonder why these contracts bother to mention items “appurtenant thereto”, but is “related” any clearer? Related in what way?
In some jurisdictions, I believe you need to mention strips and gores and the like, otherwise a buyer risks failing to acquire such seemingly insignificant parcels of land. Not so insignificant when you find out that someone else owns the strip of land between your property and the highway.
You can be precise or imprecise. If you’re going to be imprecise, you can be straightforward about it or cloak it in blather and hope no one notices.
Interesting to see your definition of gore. It reminds me of the London street name, Kensington Gore, by the Royal Albert Hall.
https://en.wikipedia.org/wiki/Kensington_Gore
A former vice president of the US used to live near Tipper Gore.
Yes, that’s the only “gore” I’m familiar with.
Correct usage: “Mah family don’ live in a house. We all live in the appurtenance.”
You say ‘good luck expressing the concept of a security interest without using the phrase security interest’. I would define ‘security interest’ the same way I would ‘lien’: ‘a relationship between an asset and an obligation such that the asset can under some circumstances be made to answer for the obligation’.
That said, I also believe no adequate definition of ‘lien’ or ‘security interest’ exists.
As for ‘appurtenant’, I contrast it with ‘personal’. If my right to cross and recross Mr Black’s Blackacre, which abuts my Whiteacre, ends when Mr Black sells Blackacre, my right is personal. If my right survives the sale of Blackacre, it is ‘appurtenant’ to Whiteacre; it ‘runs with the land’ (‘the land’ meaning Whiteacre). Not sure ‘related rights’ captures the ‘runs with the land’ sense of ‘appurtenance’.
Not so fast. If instead of immediately looking at a legal dictionary you started with a general one, you’ll see that “appurtenant” is the adjectival form of “appertain,” which generally means belong or have to do with. In that sense you see it in contracts that have nothing to do with real estate. If real estate lawyers use it as a term of art, let’s let that be their problem.
I’m in general unimpressed with the argument that one has to constrict one’s vocabulary in contracts to the smallest one capable of supporting a claim to literacy (which seems to be an ever-narrowing spiral). Sometimes you just have to go for le mot juste even if someone has to resort to a dictionary (which is available with a right-click on most computers).
Real estate law has a lot of terms of art. Appurtenant is one of them. It is a useful term and it has a HIGHLY technical meaning, originating in small buildings attached to larger mansions. In short, it *is* precise.
By using it in real estate, you basically import a thousand years of very specific legal rulings related to real estate, and by not using it, you open yourself up to argument and the creation of additional estates in land owned by someone else. If you use “related to”, that doesn’t have a technical real property law meaning or a thousand years of rulings about *what* is appurtenant to the house and what *isn’t*.
You often don’t want to list them out specifically. You should *never* define appurtenance, since the whole point is to import the entire legal tradition. The family of things “appurtenant to” your piece of property is extremely well-defined, and the definition would take pages to write out and be really boring and irrelevant 99% of the time (with the 1% being weird lawsuits over fences, trees, drainage, and walking paths).
This is why the term is used in insurance companies’ liability contracts. It’s short.
Real property law has a different tradition than personal property law, to the point where wills and contracts can be interpreted differently when they’re about real property than when they’re about personal property even when the text is otherwise identical. One does have to be careful.
I don’t really see the function of the word outside real estate.