What are the Rules of Construction, and why do we need to know about them? The Rules of Construction are court-made rules that have been developed over the centuries for the interpretation of legal documents. The courts use them when the interpretation of a document is confusing, uncertain, ambiguous, or in conflict.
The rules were probably first developed to help interpret the English common law as handed down by the King’s Bench and later to interpret the law as it became more codified. Today the courts use the rules to interpret legislation and other codified law, along with contracts and other legal documents such as deeds.
For our discussion, we are primarily focused on the legal description contained within a deed. If nothing else, the retracement surveyor should be an expert at interpreting legal descriptions and the rules are essential to that endeavor.
Deeds and contracts have many similarities, but they are treated differently when being interpreted by the courts. Contracts, for example and as a general rule, are strictly construed. This, in and of itself, is a rule of construction. The words will be given their plain meaning and extrinsic evidence (things that exist outside the four corners of the document), such as parol evidence, will not be considered. The courts seem to pride themselves on interpreting contracts and will not let the parties to the transaction tell the court what they think the contract terms mean if the court can figure it out on its own vis-a-vie the Rules of Construction.
Deeds, on the other hand, are liberally construed. In some jurisdictions a conservative approach is first taken, but if there is an ambiguity that is encountered then extrinsic evidence will be allowed to help with the interpretation. This is where we learn of the two types of ambiguity. The first and most obvious is a “patent ambiguity,” on the face of it the deed is ambiguous. An example would be a description that doesn’t close giving rise to more than one interpretation.
The other type of ambiguity is referred to as a “latent ambiguity,” not existing within the deed itself. A latent ambiguity often shows itself when there is an attempt to locate the property on the ground through surveying activity and the ambiguity is encountered, thus ushering in extrinsic evidence to explain or solve the ambiguity. In many cases parol evidence is the determining factor, but all too often it is ignored by the retracement surveyor.
Other jurisdictions always allow extrinsic evidence in to explain the conveyance and the interpretation of the deed description if there is a controversy. This is for the simple fact that the act of describing on paper the location of dirt that exists on the ground is born in ambiguity and imbued with uncertainty.
Legal descriptions have been written by all manner of people with or without the necessary skills to do so, and with or without surveying information to aid the process. This may or may not have given rise to the de minimus rule—de minimus non curate lex—the law does not concern itself with trivialities. Surveyors, on the other hand, always want to know “how close is close enough?” The courts never ask that question because it’s irrelevant.
The number one rule for the interpretation of deeds is to find the intent of the grantor and (as some courts have said) to a lesser extent the grantee. In other words, intent is king but if intent is king then ambiguities are the keys to the kingdom. When the intent of the conveyance is confusing, uncertain, ambiguous, or in conflict, extrinsic evidence and the rules for construing the words used must be employed to solve the conflict.
To my knowledge, there is no exhaustive list of all the Rules of Construction, but they often arise in boundary dispute cases, and some of them are already familiar to you. Our so-called “superiority of calls” are simply court-made Rules of Construction (i.e., natural monuments are superior to artificial monuments which are superior to bearings distances and acreage). Just because a deed does not close doesn’t mean it can’t be surveyed. There’s a rule for that as well. In my next column we will consider that rule and a few others.