Saturday, June 21, 2014

The Secret Language of Lawyers

         All professions, be doctors, lawyers or baristas, have a secret language or code, which serves to both assist the profession by providing shortcuts for immediate explanations, but also to act as a barrier to entrance and to make the profession appear more important and above the normal person.  Lawyers are especially not immune to that view and the secret language of lawyers is a mixture of Latin, Old French and Old English.  While law schools these days try and teach “Plain English for Lawyers,” all new initiates seek to model their behavior like their peers, so the strange words continue to be used.  Here are some of the most popular still used by lawyers in the real estate world.

          Lis Pendens:   A Latin phrase for notice of a pending suit.  Whenever an action involving real property is filed, a Lis Pendens must also be filed to notify all parties that an action involving a specific property has been commenced.  Unlike pleadings, the Lis Pendens is also recorded in the public records and allows the lawsuit to have priority over subsequently filed liens, mortgages or other land interests (assuming the party that filed the Lis Pendens prevails).

          Ab Initio:  A Latin phrase that means from the start or beginning.  Useful for conveying, at a later date, that an obligation was meant to commence or was invalid at a certain point.  For example, a defective contract (missing a signature or key element) is often said to be void ab initio.

          Caveat Emptor:  A very popular Latin phrase for Buyer Beware.  In residential transaction, the Florida Supreme Court has held it no longer applies (imposing a duty on seller’s to disclose material information that affects the value of the house), it still is prevalent in commercial transactions, as well as many contractual arrangements (as they say, always read and understand the fine print, or get a lawyer).

          Allonge:     An Old French law term that means to draw out.  In common terms it is the endorsement on a negotiable instrument, such as a promissory note or a check (yes, when you sign your name on the back of a check you are creating an allonge in blank in favor of the bank which is cashing or depositing the check.  The phrase “Pay to the Order of XXX” is a classic example of an Allonge.

          Tenements, Hereditaments and Appurtenances, oh my: Latin phrases used in deeds to convey the bundle of rights in real property. Tenements grant the right to hold the land (as opposed to own, which is reserved for the King); Hereditaments grants the right of inheritance, used so that the land conveyed goes to the buyer and their heirs; and Appurtenances are the improvements and fixtures attached to the land.  An example is from a quit claim deed as follows: “TOGETHER with all the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining and all the estate, right, title, interest, lien, equity, and claim whatsoever of said Grantor, either in law or in equity, to only the proper use, benefit and behoof of said Grantee, his heirs, successors and assigns forever.”

          et al.: A Latin abbreviation for et alii, it simply means “and others” and is used as a useful shortcut to avoid having to list all parties to an action or contract. 

          Chattel:  Not to be confused with cattle (which are a form of chattel), it is an Old French Law term meaning personal property.  Mostly archaic, occasionally still used to describe personal property or car loans such as a Chattel Mortgage.

          Ultra Vires:  A Latin phrase meaning “beyond power,” it commonly comes up in disputes over corporate or substitute party actions as whether the act of the corporate officer or attorney-in-fact was beyond their legal authority.  Ultra vires actions are unenforceable.  In real estate, the use of powers of attorney are often subject to ultra vires attack, when actions are taken (sale or pledge of property) and the original owner contends that they did not grant that power to the attorney-in-fact.

          Hypothecation:  A Latin phrase to pledge collateral.  A mortgage on real property or chattel is a hypothecation.  In Spanish, the word for mortgage is hipoteca, derived from this Latin word.
          Fee Simple:  Derived from the Latin term fief, was a feudal right granted by a king or lord to allow use of lands in exchange for allegiance (which evolved into paying taxes).  Eventually came to mean the right to own, mortgage, sell and devise land without a higher authority claiming an ownership interest.  Most property interests today are conveyed in fee simple.

          Knowing a few Latin phrases can make you a hit at your next cocktail party.  Just remember in vino veritas (in wine, truth) before you claim to be an expert in Latin.  There are lawyers everywhere ready to out Latin the layman.

Michael J Posner, Esq., is a partner in Ward Damon a mid-sized real estate and business oriented law firm serving all of South Florida, with offices in Palm Beach County.  He is Board Certified in Real Estate Law and can assist sellers, buyers and community associations in all real estate matters.  He can be reached at 561.594.1452, or at