Say What You Mean–The Way A Court Will Read It

In writing legal agreements, it is best to be clear. Often this means that lawyers use legal jargon because courts have already ruled what such jargon means. But legal jargon used incorrectly can make trouble.

An easement agreement created an “exclusive” access easement was “for the sole and exclusive use” of both the grantor’s and grantee’s parcels. Courts have long interpreted an exclusive easement as being solely for the benefit of the grantee, barring the grantor from using the land covered by the easement so the first “exclusive” would mean just the grantee could use the driveway. Yet the second “exclusive” clearly said it was for both the grantee and the grantor. That usage was the opposite of the first and inconsistent with the long-standing interpretation of the term “exclusive”.

Not surprisingly, the parties ended up in court. The grantee testified he intended the easement to be just for his use while the grantor testified to the opposite. And in fact both parties used the driveway for some time. The court ruled that, because easements are presumed to be nonexclusive, with both parties allowed to use it, if the intent is to allow only the grantee to use it, the agreement needs to clearly and unequivocally say so. This agreement did not do that so both parties could use it.

Sloppy writing left the parties open to an expensive legal action. It is best to have legal documents drafted by an expert so that they mean what the parties intend.

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