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.
