Brault v. Welch, 2014 VT 44
By Andrew Delaney
Lake access is important when selling a property. In fact, it’s important enough that when a deed is even slightly ambiguous, the property owners affected might battle it out in court. That’s what happened in this case.
Back in the late 70s, a married couple owned two properties on a lakeside road. They deeded one of them to their son and daughter-in-law, which included a five-foot-wide right-of-way “leading to the lake along the existing block wall and southerly thereof.” Whatever that means. The Braults, appellants here, bought that same property nearly 20 years later at a foreclosure sale. Their deed did not include the “southerly thereof” language.
By Andrew Delaney
Lake access is important when selling a property. In fact, it’s important enough that when a deed is even slightly ambiguous, the property owners affected might battle it out in court. That’s what happened in this case.
Back in the late 70s, a married couple owned two properties on a lakeside road. They deeded one of them to their son and daughter-in-law, which included a five-foot-wide right-of-way “leading to the lake along the existing block wall and southerly thereof.” Whatever that means. The Braults, appellants here, bought that same property nearly 20 years later at a foreclosure sale. Their deed did not include the “southerly thereof” language.
The other property was sold in the early 80s to Ms. Welch and her former husband; their deed didn’t mention the right-of-way. In the 30-plus years Ms. Welch has owned the property, no neighbors entered her property to reach the lake along the southerly boundary. On occasion, she did allow them to access the lake across other parts of her property. Apparently, access to the lake as imagined by the Braults from the deed would require some engineering, two sets of stairs, and a walkway (or spidey-skills).
So, when the Braults decided to sell their property, and they advertised “lake access,” that led to a discussion we imagine went something like this:
Welch: “Do you folks really have lake access?”
Braults: “Of course we do! It’s, uh, right there.”
Welch: “Really? Where? I don’t see it.”
Braults: “Uh . . . .”
So the Braults filed an action for declaratory judgment, seeking access rights to the lake and rights to build over the property and such. They established that the concrete wall formed the boundary line of the property.
The trial court found the above-articulated deed language unambiguous, and that the language “southerly thereof” meant that the right-of-way was on the south side of the wall. The Braults argued that the “southerly thereof” language modified the “existing block wall” language, and therefore placed the right-of-way on the north side of the wall. The trial court was not convinced and said as much, opining that the Braults’ interpretation was “inconsistent with how the English language [is] spoken and read.” Ouch.
“C’mon,” said the Braults, “It makes sense given the context in which the deed was given!” The trial court disagreed, and explained that the Braults’ argument violated the parol evidence rule—which, though it sounds the same, is not a reference to supervision by the Department of Corrections. The parol evidence rule, in this context, requires courts to first look at the deed language, and only if there is ambiguity, then to look to evidence outside the deed. Without any such evidence—indeed, with no reason to go there—there just wasn’t enough evidence to support the Braults’ interpretation.
So, the court found that the Braults had failed to meet their burden and entered judgment in favor of Ms. Welch.
The Braults got an extension of time to file a motion to alter or amend, had a survey done, and then filed a motion to reopen the evidence with the survey attached. The trial court reasoned that it wasn’t “new evidence” or “previously unavailable evidence” and, for that and other reasons, denied the motion.
The Braults appealed.
On appeal, the Braults argue that the trial court should’ve found the deed right-of-way language ambiguous. They argue that it was a scrivener’s error, and they established the boundary line, so the right-of-way would just have to be on the north side of the wall.
The SCOV looks for ambiguity on a de novo basis on appeal. But that doesn’t help the Braults here. The SCOV sees no error in the trial court’s decision. The SCOV notes that the parties’ intent controls, and the first place to look is the deed language, though extrinsic evidence is allowed to a certain extent in determining the parties’ intent. But if the writing isn’t ambiguous, then it’s the terms as written that control.
Here, the SCOV notes that there was no evidence introduced of the parties’ intent at the time of the conveyance, so it goes to the deed language. The way the SCOV puts it, even if there was some ambiguity, the Braults are asking the Court to rewrite the deed so that “southerly” becomes “northerly.” SCOV-y don’t play that.
The Braults didn’t ask for reformation, so they don’t get it. It wasn’t pled and the trial court so found. The SCOV agrees.
As to the Braults’ the-trial-court-should’ve-granted-the-motion-to-alter-or-amend argument, the SCOV notes that’s reviewed under an abuse-of-discretion standard, and the SCOV finds no abuse of discretion here. The Braults had ample opportunity to present a survey at trial, but they didn’t. The SCOV isn’t about to second-guess the trial court on this point.
The right-of-way to the lake here just ain’t what the plaintiffs expected. Guess they’ll have to revise that listing accordingly.
So, when the Braults decided to sell their property, and they advertised “lake access,” that led to a discussion we imagine went something like this:
Welch: “Do you folks really have lake access?”
Braults: “Of course we do! It’s, uh, right there.”
Welch: “Really? Where? I don’t see it.”
Braults: “Uh . . . .”
So the Braults filed an action for declaratory judgment, seeking access rights to the lake and rights to build over the property and such. They established that the concrete wall formed the boundary line of the property.
The trial court found the above-articulated deed language unambiguous, and that the language “southerly thereof” meant that the right-of-way was on the south side of the wall. The Braults argued that the “southerly thereof” language modified the “existing block wall” language, and therefore placed the right-of-way on the north side of the wall. The trial court was not convinced and said as much, opining that the Braults’ interpretation was “inconsistent with how the English language [is] spoken and read.” Ouch.
“C’mon,” said the Braults, “It makes sense given the context in which the deed was given!” The trial court disagreed, and explained that the Braults’ argument violated the parol evidence rule—which, though it sounds the same, is not a reference to supervision by the Department of Corrections. The parol evidence rule, in this context, requires courts to first look at the deed language, and only if there is ambiguity, then to look to evidence outside the deed. Without any such evidence—indeed, with no reason to go there—there just wasn’t enough evidence to support the Braults’ interpretation.
So, the court found that the Braults had failed to meet their burden and entered judgment in favor of Ms. Welch.
The Braults got an extension of time to file a motion to alter or amend, had a survey done, and then filed a motion to reopen the evidence with the survey attached. The trial court reasoned that it wasn’t “new evidence” or “previously unavailable evidence” and, for that and other reasons, denied the motion.
The Braults appealed.
On appeal, the Braults argue that the trial court should’ve found the deed right-of-way language ambiguous. They argue that it was a scrivener’s error, and they established the boundary line, so the right-of-way would just have to be on the north side of the wall.
The SCOV looks for ambiguity on a de novo basis on appeal. But that doesn’t help the Braults here. The SCOV sees no error in the trial court’s decision. The SCOV notes that the parties’ intent controls, and the first place to look is the deed language, though extrinsic evidence is allowed to a certain extent in determining the parties’ intent. But if the writing isn’t ambiguous, then it’s the terms as written that control.
Here, the SCOV notes that there was no evidence introduced of the parties’ intent at the time of the conveyance, so it goes to the deed language. The way the SCOV puts it, even if there was some ambiguity, the Braults are asking the Court to rewrite the deed so that “southerly” becomes “northerly.” SCOV-y don’t play that.
The Braults didn’t ask for reformation, so they don’t get it. It wasn’t pled and the trial court so found. The SCOV agrees.
As to the Braults’ the-trial-court-should’ve-granted-the-motion-to-alter-or-amend argument, the SCOV notes that’s reviewed under an abuse-of-discretion standard, and the SCOV finds no abuse of discretion here. The Braults had ample opportunity to present a survey at trial, but they didn’t. The SCOV isn’t about to second-guess the trial court on this point.
The right-of-way to the lake here just ain’t what the plaintiffs expected. Guess they’ll have to revise that listing accordingly.
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