MEbiz Real Esate Insider – Enfeoffing Your Emblements: Losing Lawyer Language

By Pete Van Hemel, real estate attorney

Pete Van Hemel

The next time you review a deed that you receive from your lawyer, check it for the word “behoof.” It typically occurs in the phrase “..and to its and their use and behoof forever.” If you find it, call your attorney and ask him or her what exactly that word means. Chances are you won’t get a particularly useful answer because the word no longer has a particularly useful meaning. It’s not even English– at least not as anyone living speaks the language. The word dates from Anglo-Saxon times and is derived from an Old English word that meant profit. Nowadays it is no more than a linguistic artifact that has come down through the ages alongside other ancient and disused words that seem to haunt real estate and other legal documents as ghosts of tradition.

Whatever vestigial meaning the word behoof may have, you may rest assured that the deed to your property is perfectly valid without it and we do not need to use it anymore. The same can be said of other ancient terms that still make their way into lavishly overdrafted real estate documents that are still in circulation. This is not to say that real estate lawyers can ignore the past; the successful practice of real estate – even in 2014 – must still include some understanding of concepts that have been around for centuries (although probably not the “enfeoffing of emblements.” If that ever happened, it would have been a medieval-style investiture ceremony bestowing a claim to the possession or value of crops grown by a tenant farmer despite the end of the tenancy at a point prior the harvest. Please call us immediately on our real estate emergency hotline if this applies to you). Portions of the modern law of real estate derive from common law principles that were developed in England during the Middle Ages, but while the concepts remain with us, there is no justification for hanging on to the legalese jargon of the 14^th century.

Some of the reasons why ancient and vaguely understood words should be avoided are practical and obvious. An easy example: your contract or mortgage should no longer provide for notices being given by telex or telegram—and even fax is a challenge these days. Contracts and deeds that define individuals (or entities) who have perfectly good names as the “Party of the First Part” and the “Party of the Second Part” rather than simply saying “Smith” and “ACME” seem to come right out of 1940s Hollywood films featuring some overwrought lawyer who has a giant dictation machine that looks like scuba gear sitting on his mahogany desk.

Some real estate lawyers are still fond of including throw-away recitals at the front end of deeds to property informing the world that the grantor is “lawfully seized thereof.” The fact of lawful ownership is important, but is made no more or less correct by including a self-serving recital that brings to mind a defective lawnmower engine rather than anything to do with a properly drafted deed. ME enacted the Short Form Deeds Act in 1967 to help do away with many of the hidebound formalities, recitals and magic words that used to plague the drafting of deeds and mortgages, but even today some drafters feel they are adding value by packing deeds with flowery preambles that have no legal effect.

The content of a deed is important, and once recorded, a deed– like a diamond– will last forever. Careful attention should be paid to ensure that the structural minimums are present and correct, and that any covenants or specific agreements which the clients have negotiated are clear and effective. That will often require careful thought and drafting to ensure accuracy, since clients are capable of developing intricate agreements that will require intricate drafting. Not everything can be expressed in one page. In all events the attention of the drafter should focus on minimizing surplus formal language. As the expression goes, you can’t put lipstick on a pig, nor should you try to apply polish to its behooves.