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Article
Deeds and the Determinacy Norm: Insights from Brandt and Other Cases on an Undesignated, Yet Ever-Present, Interpretive Method
Florida State University Law Review (2016)
  • Donald J. Kochan
Abstract
The land one holds is generally only as good as the property rights contained in the deed.
The rights contained in the deed are only as good as the ability to get those rights enforced.
And, the enforcement is only valuable if it recognizes a determinate meaning in the deeds from
the point of conveyance. This Article pens the term “determinacy norm” to explain a collection
of rules for the interpretation of deed terms that aim to make the meaning of deed terms determinate.
I contend that, in order to satisfy the determinacy norm for deed interpretation,
courts must (and arguably do) interpret the terms in deeds and land grants as having a fixed
meaning set contemporaneously with the transfer and based on the discernable intent and
expectations of the parties at the time of the conveyance or grant. This norm runs through
existing case law and is pivotal to facilitating an effective property system. But, courts have
failed to recognize either the term (or even the organizing principle) that is the determinacy
norm.
As an illustrative example, some see the 2014 U.S. Supreme Court case of Brandt Revocable
Trust v. United States as just a railroad right-of-way decision. But a closer look reveals
that it is a good exemplar of courts striving to add determinacy to deeds and equivalent instruments
like statutory land grants. Brandt reveals a pattern of U.S. Supreme Court jurisprudence
that the Court itself is not adequately articulating where the determinacy norm
lurks in the substructure of opinions.
We should more directly recognize the determinacy norm’s presence in private deed and
public land grant cases. Doing so will allow us to better monitor and check the actions of
judges to be sure that they are living up to the constraints of the determinacy norm. Such
monitoring will help us better identify and protect the rights in the deeds that help organize
our property system.
Keywords
  • deeds,
  • statutory land grants,
  • statutory reservations,
  • land patents,
  • determinacy,
  • indeterminacy,
  • rule of law,
  • real property,
  • property rights,
  • conveyances,
  • conveyancing,
  • real estate,
  • predictability,
  • certainty,
  • neutrality,
  • objectivity,
  • land use
Publication Date
Spring 2016
Citation Information
Donald J. Kochan. "Deeds and the Determinacy Norm: Insights from Brandt and Other Cases on an Undesignated, Yet Ever-Present, Interpretive Method" Florida State University Law Review Vol. 43 Iss. 3 (2016) p. 793 - 829
Available at: http://works.bepress.com/donald_kochan/49/