“Appurtenant”

Last week I saw this tweet by @Torcherama:

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.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.