Nayereh Sahrapour v. LesRon, LLC and Shaw Centre, LLC

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 13-CV-724 and 13-CV-725
NAYEREH SAHRAPOUR, ET AL., APPELLANTS,
V.
LESRON, LLC
and
SHAW CENTRE, LLC
APPELLEES.
Appeals from the Superior Court
of the District of Columbia
(CAR-3370-08)
(Hon. Natalia Combs-Greene, Trial Judge)
(Argued September 30, 2014 Decided July 9, 2015)
Seann P. Malloy for appellants Nayereh Sahrapour and George Beheshtian.
Mikhael D. Charnoff, with whom Douglas P. Rucker, Jr. was on the brief,
for appellants Robert W. Haas, Haas & Associates, P.C., and Sovereign Title
Company.
2
David H. Cox, with whom Christopher A. Glaser was on the brief, for
appellee LesRon, LLC.
Benjamin A. Klopman, with whom Laurance J. Ochs was on the brief, for
appellee Shaw Centre, LLC.
Before BECKWITH and MCLEESE, Associate Judges, and NEWMAN, Senior
Judge.
Opinion for the court by Associate Judge MCLEESE.
Dissenting opinion by Senior Judge NEWMAN at page 27.
MCLEESE, Associate Judge: Appellants Nayereh Sahrapour, George
Beheshtian, Robert Haas, Haas & Associates, P.C., and Sovereign Title Company
appeal from orders granting summary judgment to appellees Shaw Centre, LLC
and LesRon, LLC and vesting title to a disputed alleyway in LesRon. Appellants
claim that Ms. Sahrapour purchased the disputed alleyway from Shaw Centre and
that Shaw Centre acted unlawfully by subsequently purporting to sell the alleyway
to LesRon. The trial court held that both the purchase agreement between Ms.
Sahrapour and Shaw Centre and a subsequent deed were unambiguously contrary
to appellants’ claim. The trial court therefore refused to consider extrinsic
evidence as to the meaning of those documents. We find both the purchase
agreement and the deed to be ambiguous. We therefore remand to the trial court
for further proceedings.
3
I.
The following facts are undisputed. Shaw Centre owned two adjacent
buildings, one at 1230 9th Street, NW and one at 1232 9th Street, NW. An
alleyway that is approximately four feet wide runs between the buildings. In May
2006, Shaw Centre agreed to sell 1230 9th Street to Ms. Sahrapour. Attorney
Robert Haas represented Ms. Sahrapour in the transaction. The purchase
agreement states that 1230 9th Street consisted of “approximately 3,027 square feet
of land . . . legally described as Lots 878, Block/Square 0368, Map 40 C.” The
property located at 1230 9th Street measures 3,026.4 square feet when the
alleyway at issue is included and 2,777.5 square feet when the alleyway is
excluded. The purchase agreement further states that it is binding and that “the
provision hereof shall survive the execution and delivery of the deed aforesaid and
shall not be merged therein.”
Mr. Haas prepared the deed for the sale of 1230 9th Street. The deed states
that Shaw Centre conveyed to Ms. Sahrapour “Lots 21 and 28 in Ambrose Roth’s
Subdivision of Lots in Square 368.” Lots 21 and 28 in Square 368 describe the
property located at 1230 9th Street without the alleyway; the alleyway is located in
4
Lot 22. The deed also identifies the tax lot as “Square 368, Lots 877 and 878.”
Tax lot 877 does not exist, and tax lot 878 describes only the front portion of the
property located at 1230 9th Street. The back portion of 1230 9th Street and the
disputed alleyway lie in tax lot 885. The deed also states that the property was
conveyed “TOGETHER WITH all improvements thereupon, and the rights, alleys,
ways, waters, privileges, appurtenances and advantages thereto belonging, or in
anywise appertaining.” The deed was recorded in October 2006.
In May 2007, Shaw Centre contracted to sell the adjacent property located at
1232 9th Street to Ronald and Leslie Schreiber, owners of LesRon. The original
purchase agreement describes the property to be conveyed as “1232-9th Street,
Northwest Washington DC Square 0368 Lot 0885.” At some point after the
purchase agreement was signed, Ms. Sahrapour’s husband, George Beheshtian,
informed Mr. Schreiber that Ms. Sahrapour had already purchased the alleyway
between 1232 9th Street and 1230 9th Street. Mr. Haas also informed LesRon’s
counsel of Ms. Sahrapour’s claim. Shaw Centre and LesRon subsequently
modified the purchase agreement to explicitly include the alleyway. A special
warranty deed reflecting the sale of 1232 9th Street was recorded on August 14,
2007. The alleyway is included in the property description in this deed.
5
Mr. Haas subsequently amended the October 2006 deed between Shaw
Centre and Ms. Sahrapour to specifically reflect the conveyance of the alleyway to
Ms. Sahrapour. Mr. Haas changed the designation from tax lot 877 to tax lot 885.
He also added that “a portion of Lot 22 as shown on the attached survey” was
conveyed to Ms. Sahrapour.
LesRon sued appellants, seeking a declaration that the amended deed was
void; money damages for slander of title; money damages for trespass; and a
permanent injunction enjoining further trespass. Ms. Sahrapour and Mr.
Beheshtian brought a cross-claim against Shaw Centre, seeking damages for
breach of contract; an order requiring Shaw Centre to record a deed or instrument
confirming the boundaries of the property that Ms. Sahrapour had purchased; an
order quieting title in and to the disputed alleyway; and indemnification if LesRon
prevailed in its suit.
Appellants proffered extrinsic evidence in support of their claim that Ms.
Sahrapour purchased the alleyway. Specifically, appellants claimed that the real-
estate agent stated that the alleyway was included in the sale; that a location
drawing confirmed by both parties at the closing indicated the alleyway was
included in the sale; and that Shaw Centre sealed the entrances from 1232 9th
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Street to the alleyway and provided a key to the door in the back of the alleyway to
Ms. Sahrapour. Appellees disputed appellants’ extrinsic evidence and countered
with extrinsic evidence of their own.
The trial court held that the purchase agreement between Shaw Centre and
Ms. Sahrapour and the October 2006 deed were both unambiguous and that
extrinsic evidence therefore could not be considered. The trial court also
concluded that the purchase agreement merged with the October 2006 deed and
that the October 2006 deed therefore represented the final written agreement
between the parties. The trial court granted summary judgment in favor of
appellees, vested title to the alleyway in LesRon, and declared the amended deed
prepared by Mr. Haas void.1
1
Although the trial court did not resolve all of the claims and counterclaims
in the case, we have jurisdiction because appellants seek review of an order
“changing or affecting the possession of property.” D.C. Code § 11-721 (a)(2)(C)
(2012 Repl.). Some of the appellants were not formally parties to this case in the
trial court but nevertheless were permitted to participate on the merits because they
were parties in closely related cases. The parties dispute whether those appellants
have standing to participate in the present appeal. We need not decide that issue,
however, because Ms. Sahrapour was a party in the trial court and has standing to
raise all of the arguments being raised in this appeal. See, e.g., Hazel v. Berry, 580
A.2d 110, 110 n.3 (D.C. 1990) (because some appellants had standing, court did
not need to decide whether another did as well).
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II.
We interpret contracts and deeds under the “objective” law of contracts,
meaning that the written language of the contract “govern[s] the rights and
liabilities of the parties, regardless of the intent of the parties at the time they
entered into the contract, unless the written language is not susceptible of a clear
and definite under[stand]ing, or unless there is fraud, duress, or mutual mistake.”
DSP Venture Grp., Inc. v. Allen, 830 A.2d 850, 852 (D.C. 2003) (internal quotation
marks and brackets omitted); see also Joyner v. Estate of Johnson, 36 A.3d 851,
855 (D.C. 2012) (applying “objective” law of contracts to deeds).
We review de novo a trial court’s ruling as to whether a contract or deed is
ambiguous. Joyner, 36 A.3d at 857; BSA 77 P Street LLC v. Hawkins, 983 A.2d
988, 993 (D.C. 2009). A contract or deed is ambiguous if “it is, or the provisions
in controversy are, reasonably or fairly susceptible of different constructions or
interpretations, or of two or more different meanings . . . .” Joyner, 36 A.3d at 856
(internal quotation marks omitted). A contract or deed is not ambiguous if “the
court can determine its meaning without any other guide than a knowledge of the
simple facts on which, from the nature of language in general, its meaning
depends.” Id. (internal quotation marks omitted).
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If a court determines that a contract or deed is ambiguous, “the court -- after
admitting probative extrinsic evidence -- must determine what a reasonable person
in the position of the parties would have thought the disputed language meant.”
Dyer v. Bilaal, 983 A.2d 349, 355 (D.C. 2009) (internal quotation marks omitted);
see also Foundation for Preservation of Historic Georgetown v. Arnold, 651 A.2d
794, 796 (D.C. 1994).2
III.
A.
We turn first to the purchase agreement between Shaw Centre and Ms.
Sahrapour. The trial court concluded that the purchase agreement “merged” with
the deed, and that the deed therefore was the document that determined the rights
of the parties with respect to the property at issue. It is true that, in general, the
2
At one time, this jurisdiction drew distinctions between latent and patent
ambiguities, permitting extrinsic evidence to be considered in resolving the former
but not the latter. See, e.g., Harten v. Loffler, 29 App. D.C. 490, 503 (1907). That
rule was long ago abolished in this jurisdiction. See, e.g., Mitchell v. Merriam, 88
U.S. App. D.C. 213, 215, 188 F.2d 42, 44 (1951) (“Distinctions between ‘latent’
and ‘patent’ ambiguities are arbitrary and outmoded.”). We therefore need not
decide whether any ambiguities in the documents at issue were latent or patent.
9
provisions of a purchase agreement that are satisfied by the delivery of a deed
merge into a subsequently delivered deed. Haviland v. Dawson, 210 A.2d 551,
554 (D.C. 1965). Such merger would “extinguish” the parties’ rights under the
purchase agreement. Burka v. Crestview Corp., 321 A.2d 853, 855 (D.C. 1974).
In the present case, however, the purchase agreement states that the agreement
“shall not be merged” with the deed. Thus, the provisions of the purchase
agreement do not merge into the deed, and appellants remain free to assert rights
arising under the purchase agreement. See, e.g., Meyers v. Antone, 227 A.2d 56,
57 (D.C. 1967) (rejecting argument that sales contract merged into deed, because
sales contract stated that provisions of sales contract “shall not be merged” into
deed).
We further conclude that the purchase agreement is ambiguous as to whether
the alleyway was included in the sale. The purchase agreement states that 1230 9th
Street consists of “approximately 3,027 square feet of land . . . legally described as
Lots 878, Block/Square 0368, Map 40 C . . . .” Nothing in the agreement -- neither
the street address, nor the square footage, nor the tax lot number -- unambiguously
indicates the boundaries of the property to be conveyed. The street address does
not indicate whether the alleyway was to be included in the conveyance, because
the alleyway is immediately adjacent to the building at that address and could
10
reasonably be considered part of the address. The approximation of 3,027 square
feet does not by itself clearly establish whether the alleyway was included, because
the agreement does not specify how that approximation was reached. The
approximation does tend to suggest, however, that the alleyway was intended to be
included in the conveyance, because it is undisputed that 1230 9th Street measures
3,026.4 square feet with the alleyway and 2,777.5 square feet without the
alleyway.3 Finally, the tax-lot number does not indicate whether the alleyway was
included, because the parties concede that the tax-lot number does not accurately
indicate the boundaries of the property to be conveyed. Tax lot 878 corresponds to
the front portion of the property, but does not encompass the back portion of the
property, which everyone agrees was intended to be conveyed. Because nothing in
the purchase agreement clearly indicated whether the alleyway was included in the
property to be conveyed, reasonable parties could have had different beliefs about
whether Ms. Sahrapour had contracted to purchase the alleyway. Thus, we
conclude that the purchase agreement is ambiguous on that point.
3
The parties dispute whether the purchase agreement in this case was a sale
“in gross,” i.e., whether the statement of the area to be conveyed was a mere
estimate that was not “of the essence of the contract.” See generally, e.g., Cavacos
v. Sarwar, 545 A.2d 46, 52 (Md. 1988) (internal quotation marks omitted). We
have not found any case discussing the “sale in gross” doctrine under District of
Columbia law. Under Maryland law, extrinsic evidence is apparently admissible
when it is unclear from the face of the contract whether the contract is a sale in
gross. See, e.g., Witmer v. Bloom, 288 A.2d 323, 325 (Md. 1972). Moreover, even
if the purchase agreement in this case were a sale in gross, we would still view the
purchase agreement and the deed as ambiguous, for the other reasons stated in text.
11
The trial court indicated that, even if there were ambiguity, extrinsic
evidence may not be considered unless there is clear and convincing evidence of
mutual mistake. We disagree. Extrinsic evidence may be admitted either in the
face of ambiguity or in cases of mutual mistake. E.g., DSP Venture Grp., 830
A.2d at 852 (the language of a contract governs “unless the written language is not
susceptible of a clear and definite under[standing], or unless there is fraud, duress,
or mutual mistake”) (emphasis added).
Appellants argue that, once extrinsic evidence is considered, the purchase
agreement should properly be understood to include the alleyway. Appellants
further argue that they obtained equitable title to the alleyway when the purchase
agreement was executed. The trial court did not address these issues, and we leave
them for the trial court on remand.
B.
We next turn to the interpretation of the October 2006 deed. The deed stated
that Shaw Centre conveyed to Ms. Sahrapour “Lots 21 and 28 in Ambrose Roth’s
Subdivision of Lots in Square 368 . . . . TOGETHER WITH . . . the alleys . . .
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thereto belonging, or in anywise appertaining . . . .” The disputed alleyway is
immediately adjacent to Lots 21 and 28. The deed does not indicate whether this
alleyway is an alleyway belonging or in anywise appertaining to the property
otherwise to be conveyed. This reference to alleyways contributes to our
conclusion that the deed is ambiguous. See Annapolis Rds. Prop. Owners Ass’n v.
Lindsay, 45 A.3d 749, 758-70 (Md. Ct. Spec. App. 2012) (affirming trial court’s
rulings that (1) plain language of deed transferring lot 19 and alleys and ways
“belonging or in anywise appertaining” was ambiguous as to whether deed
transferred strip of land adjacent to lot 19; and (2) after consideration of other
evidence, deed was properly interpreted to transfer adjacent strip of land), aff’d in
part and rev’d in part on other grounds, 64 A.3d 916 (Md. 2013); Kirkpatrick v.
Brown, 59 Ga. 450, 450-53 (1877) (deed that transferred south half of lot 27, with
“the rights, members, and appurtenances thereof . . . belonging, or in anywise
appertaining,” was ambiguous as to whether deed transferred strip of property
adjacent to south half of lot 27; trial court appropriately permitted consideration of
extrinsic evidence, and jury permissibly found that adjacent strip of property was
alleyway transferred by deed).
Moreover, the deed identifies the tax-lot numbers of the conveyed property
as “Square 368, Lots 877 and 878.” Tax lot 877 does not exist, and tax lot 878
13
makes up only a part of Lots 21 and 28. Because tax lot 877 does not exist and tax
lot 878 is smaller than Lots 21 and 28, the physical descriptions of the property in
the deed are unclear and to a degree contradictory. The parties have not cited, and
we have not found, local cases addressing whether such conflicts create ambiguity
permitting consideration of extrinsic evidence. Other courts, however, have held
that deeds were ambiguous, and extrinsic evidence therefore was properly
considered, where the property description in the deed was incomplete or
contradictory. See, e.g., Everett v. Bosch, 50 Cal. Rptr. 813, 818 (Dist. Ct. App.
1966) (deed ambiguous because description of property by metes and bounds
conflicted with description of property by lot number); Grimes v. Jordan, 260
S.W.2d 220, 223-24 (Tex. Civ. App. 1953) (same); Snow v. Gallup, 123 S.W. 222,
224-26 (Tex. Civ. App. 1909) (extrinsic evidence admissible where description of
property in deed omitted one of property descriptors necessary to enclose area
intended to be conveyed).
Appellees argue that the problems with the tax-lot numbers in the deed do
not give rise to ambiguity, because property in the District of Columbia must be
described in terms of subdivision lot numbers. Although properties may be
described in terms of subdivision lot numbers, appellees have not cited any
provision that requires that means of describing property. See D.C. Code § 1-1322
14
(2012 Repl.) (purchaser of subdivided property may refer to plat and record in
describing property). Nor have appellees cited any authority suggesting that
references to the subdivision lot numbers is dispositive even in the face of other
contradictory or ambiguous descriptions of the property to be conveyed. We
therefore are unable to accept appellees’ contention that the subdivision lot
numbers are controlling in the current setting.
We need not decide whether the problems with the tax-lot numbers in the
deed by themselves would suffice to render the deed ambiguous. Rather, we hold
that ambiguity is created by the combination of those problems and the deed’s
language about the conveyance of alleyways.
C.
The dissent concludes that, despite the errors and conflicts in the
descriptions of the conveyed property, both the purchase agreement and the deed
are so unambiguous as to preclude consideration of extrinsic evidence. Our
analysis differs from the dissent’s in a number of respects.
1. Although the dissent apparently would require a high degree of
ambiguity before permitting consideration of extrinsic evidence, our
15
cases provide substantial support for a less rigid approach. See, e.g.,
Aziken v. District of Columbia, 70 A.3d 213, 219 (D.C. 2013) (“Where
there is some lack of clarity in the terms of the contract, testimony
regarding the intent of the parties and the meaning of the terms in the
context may be required, and will properly be admitted in order to reach
an objective interpretation.”) (brackets, ellipses, and internal quotation
marks omitted).
2. The dissent understands Section 203 of the Restatement of Contracts
(Second) to forbid consideration of extrinsic evidence to resolve a
conflict between more specific and more general contract terms. We
understand Section 203 otherwise. In the first comment to Section 203,
the authors of the Restatement explain that the principles of contract
interpretation reflected in Section 203 “apply only in choosing among
reasonable interpretations. They do not override evidence of the meaning
of the parties, but aid in determining meaning or prescribe legal effect
when meaning is in doubt.” Restatement (Second) of Contracts § 203,
cmt. a (1981). More specifically, comment e to Section 203 states that
the rule favoring specific terms over general terms “yields to
manifestation of a contrary intention.” Id. at cmt. e. Section 203
therefore does not support a rule that extrinsic evidence may never be
16
considered to help resolve a conflict between more specific and more
general contract language. Although the dissent suggests that this court
adopted such a flat rule in Abdelrhman v. Ackerman, 76 A.3d 883, 891
(D.C. 2013), we disagree. The court in Abdelrhman stated only that
“greater weight” is given to specific language, not that such language
must always be given controlling weight. Moreover, the court rested
primarily on the conclusion that the allegedly conflicting language could
be reconciled. Id. at 890-91. Out-of-jurisdiction authority supports the
conclusion that extrinsic evidence may in appropriate circumstances be
considered in resolving a conflict between general and more specific
contractual language. See, e.g., Yerington v. La–Z–Boy, Inc., 124 S.W.3d
517, 521-23 (Mo. Ct. App. 2004) (finding contract ambiguous where
apparent conflict between general language and more specific language;
reversing for trial court to consider extrinsic evidence); Mulla v.
Maguire, 783 A.2d 93, 99 (Conn. App. Ct. 2001) (“Because the conflict
between the specific intent clause and the map showing the right-of-way
and the general granting clause introduces some ambiguity into the
instrument, we also consider extrinsic evidence . . . .”); see generally,
e.g., Thompson on Real Property § 90.02(d)(1) (3d Thomas ed. 2013)
17
(The “presumption favoring specific description will prevail unless it
appears that the parties intended otherwise . . . .”).
3. Similarly, the dissent appears to interpret Section 203 of the Restatement
to preclude consideration of extrinsic evidence to resolve a conflict
between a handwritten contract term and a typed or printed contract term.
The commentary to the Restatement contradicts such an interpretation.
Restatement (Second) of Contracts § 203, cmt. f (1981) (rule generally
favoring handwritten contract terms “yields to manifestation of a contrary
intention”).
4. The dissent further suggests that the descriptions of the property using
subdivision square and lot numbers as a matter of law trump the
descriptions using tax lot numbers. That is so, according to the dissent,
because (a) subdivision lots in the pertinent square are on average smaller
than the tax lots in that square; (b) each subdivision lot is wholly
contained within a single tax lot; (c) references to subdivision lots are
therefore more specific than references to tax lots; and (d) references to
subdivision lots therefore control and preclude the admission of extrinsic
evidence to help resolve the conflicting descriptions. As we have already
explained, we do not agree that the more specific of two conflicting
descriptions of property will necessarily control, without regard to other
18
indications of the parties’ intent, including extrinsic evidence where
appropriate. Leaving that aside, subdivision lot numbers and tax lot
numbers seem comparably specific ways to describe the location of a
property. Although the dissent indicates that each subdivision lot is
contained within a single tax lot, that is not clear to us from the record.
Moreover, we see no reason why controlling weight should be given in
this case to the references to subdivision lots simply because subdivision
lots are on average smaller than tax lots in the particular square where the
property is located. Nor are we aware of any authority supporting such
an approach. See generally, e.g., 14 Powell on Real Property
§ 81A.05[3][c], at 81A-97 (2015) (“The practical difficulty in employing
[the rule favoring specific language over general language] is the
determination of which language is more general and which is more
specific. [In some cases,] . . . the descriptions seem to be equally
general[, and the] selection of one over the other depends largely on the
opinion and viewpoint of the finder of fact.”) (citation omitted).
5. The dissent also concludes that the parties intended the subdivision lot
numbers to be controlling, because subdivision lot numbers are used in
recording deeds, whereas tax lot numbers are used “only for the taxation
of real estate.” Although subdivision lot numbers are a permissible way
19
to describe property for real-estate purposes, there is no requirement that
they be used. See, e.g., D.C. Code § 1-1322 (2012 Repl.) (permitting but
not requiring use of subdivision square and lot numbers). Moreover, it is
not unusual for parties to use tax lot numbers to describe property being
conveyed. See, e.g., Mueller v. Bohannon, 589 N.W.2d 852, 855-56
(Neb. 1999); Howe v. Greenleaf, 320 P.3d 641, 649-50 (Or. Ct. App.
2014). We see no basis to infer that the parties intended to give the
subdivision lot numbers controlling effect in the event of a conflict with
the tax lot numbers. Nor, for that matter, are we aware of authority
holding that subdivision lot numbers are generally to be given preference
over tax lot numbers.
6. The dissent states that “metes and bounds generally control when they
conflict with other descriptions of land unless . . . the metes and bounds
descriptions themselves are incomplete.” This case, however, does not
involve “metes and bounds” descriptions. See, e.g., B. Garner, Black’s
Law Dictionary 1141 (10th ed. 2009) (defining “metes and bounds” as
“[t]he territorial limits of real property as measured by distances and
angles from designated landmarks and in relation to adjoining
properties”); 14 Powell § 81A.05[2][b], at 81A-83 (discussing “metes
and bounds” method of describing real property). Rather, the conflicting
20
descriptions in this case involve two different systems by which the
government designates parcels of real property. See generally, e.g., 14
Powell § 81A.05[2][d], at 81A-92 (describing use of “plats” to describe
real property); 11 C.J.S. Boundaries § 16 (2008) (“A ‘plat’ is a
subdivision of land into lots, streets, and alleys, marked upon the earth,
and represented on paper.”). More generally, it is true that some courts
have identified various canons of construction concerning the relative
weight to give to differing types of property description when a
document contains conflicting descriptions. See generally, e.g., 14
Powell § 81A.05[3][a], at 81A-94- to -111. This court does not appear to
have squarely addressed the issue, however. Moreover, according to one
treatise, “some of [these canons of construction] are of questionable merit
or have fallen into disuse.” Id. at 81A-94. According to the same
treatise, “it is essential that a court first attempt to determine and interpret
the intention of the parties from the documents and the surrounding
circumstances before applying any of the canons of construction.” Id. at
81A-95. We need not delve further into these issues in this case, except
to say that, for the reasons we have explained, we conclude that the
purchase agreement and the deed in this case are ambiguous and that
21
extrinsic evidence should therefore be considered to help determine their
meaning.
7. In Everett, 50 Cal. Rptr. at 818, the court concluded that a deed
containing conflicting descriptions of the property to be conveyed was
ambiguous. The dissent suggests that Everett rests on unusual features of
California law, but the features the dissent identifies are not relevant to
the pertinent holding of Everett -- that extrinsic evidence may be
consulted when a deed contains two conflicting descriptions of the
property to be conveyed. 50 Cal. Rptr. at 818. In any event, there is
ample other authority to the same effect. See generally, e.g., 12 Am. Jur.
2d Boundaries § 103, at 478 (2009) (“Parol evidence is always
admissible to explain conflicts between calls in a description [of real
property being conveyed], or a variance between a description of land in
the deed and the plat or map of the land referred to therein . . . .”) (citing
cases); 23 Am. Jur. 2d Deeds § 249, at 255-56 (“If there are conflicting
descriptions which cannot be reconciled, that construction will be
adopted which best comports with the manifest intention of the parties as
shown by the whole deed and the circumstances of the case.”) (citing
cases); cf. 23 Am. Jur. 2d Deeds § 194, at 217 (“[A]ll uncertainties in a
conveyance are treated as ambiguities to be clarified by resort to the
22
intention of the parties as gathered from the instrument itself, the
circumstances attending and leading up to its execution, and the subject
matter and the situation of the parties as of that time.”) (citing cases); 11
C.J.S. Boundaries § 3, at 72 (“The important and controlling
consideration, where there is a conflict as to a boundary, is the parties’
intention, whether express or shown by surrounding circumstances.”).
8. The dissent expresses the view that the purchase agreement placed on the
buyer the burden of ensuring the correctness of the legal description of
the property. Specifically, the dissent relies on provisions in the purchase
agreement indicating that the property was being sold “as is.” Those
provisions, however, are by their terms focused on the condition of the
property, not on the legal description of what property was being
conveyed. See, e.g., Pitre v. Twelve Oaks Trust, 818 F. Supp. 949, 951
(S.D. Miss. 1993) (“‘As is’”, when utilized in the sale of real property,
means the property will be sold in its then existing physical condition.”).
We therefore do not view the “as is” clauses as fatal to appellants’ claims
that, properly interpreted, the purchase agreement and the deed conveyed
the alley at issue.
9. Finally, we disagree with the dissent’s interpretation of the clause in the
deed conveying not only the property otherwise described but also “the
23
rights, alleys, ways, waters, privileges, appurtenances and advantages
thereto belonging, or in anywise appertaining.” According to the dissent,
such language can only create an easement, as opposed to determining
the boundary of the land being conveyed. The sole District of Columbia
case cited by the dissent, however, involves circumstances critically
different from those of the present case. See May v. Smith, 14 D.C. (3
Mackey) 55, 59-60 (1884). The question in May was whether a deed
conveying described property and “ways, rights, . . . and appurtenances
unto the same” also conveyed title to, or an easement over, a strip of land
retained by the seller, in order to get access to a nearby alley. Id. at 56.
The deed did not refer to the alley, the alley was not adjacent to the
property described in the deed, and there was no preexisting way across
the strip of land at issue. Id. at 55-64. May therefore does not support a
conclusion that language explicitly conveying alleys belonging or in
anywise appertaining to a described property can never convey title to an
alley adjacent to the described property. Moreover, contrary to the
dissent’s suggestion, the Maryland Court of Special Appeals in Annapolis
Roads Property Owners Ass’n squarely held, on the basis of all of the
relevant circumstances including extrinsic evidence, that a deed
conveying alleys and ways “belonging or in anywise appertaining” to the
24
property otherwise described in the deed conveyed title to a strip of land
adjacent to the described property. 45 A.3d at 751 & n.1, 759, 768, 787
(strip of land at issue was “between Lots 18, 19, 20, and 21,” but title to
strip of land was conveyed by deed conveying Lot 19 and alleys and
ways “belonging or in anywise appertaining”). To be clear, we do not
hold as a matter of law that the deed in this case granted appellants title
to the alley. A substantial body of out-of-jurisdiction law addresses
whether references in particular deeds to roads, ways, alleys, rights-of-
way, or other related items convey title or instead only create an
easement, and the answer to that question can be very context-dependent.
See, e.g., Barber v. Southern Ry. Co., 274 S.E.2d 336, 337 (Ga. 1981)
(“It is true that in determining whether an interest conveyed is an
easement or fee simple title to land, each case depends on its own
particular facts and circumstances.”); see generally A.M. Swarthout,
Annotation, Deed as Conveying Fee or Easement, 136 A.L.R. 379,
§ II.b.2 (1942 & 2015 supp.) (language in deed conveying land generally
implies grant of title, whereas language conveying right to use land
generally implies grant of easement, but other indications in deed, such
as reference to land as road, way, or alley can affect interpretation of
deed; “The nature of such indic[ations] varies to such an extent from case
25
to case that it seems unwise to attempt to formulate any general rules
with respect to the effect of any given indic[ation] upon the broad
principle that a conveyance of a strip or parcel of land, rather than a right,
will pass a title in fee.”); see also id. at § II.d (“It appears to be well
established that a deed purporting to convey a ‘road,’ ‘roadway,’ ‘alley,’
‘street,’ ‘highway,’ or ‘way,’ will, in the absence of some indic[ation] of
a contrary intention of the parties, be construed as passing an easement
only and not a title in fee. (It should be pointed out, however, that in
many of the cases in which this result is reached the decision is not based
entirely, or even partly, upon the principle that a deed purporting to
convey a ‘road,’ etc., passes only an easement, but upon other indications
of the parties’ intention that an easement only should pass.)”). Rather,
we hold only that the deed’s language conveying alleys and the deed’s
conflicting descriptions of the property to be conveyed combine to make
the deed sufficiently ambiguous as to warrant consideration of extrinsic
evidence. We leave to the trial court on remand the question whether,
under all of the circumstances, the reference to alleys in the deed in this
case operated to convey title.
26
IV.
In sum, we find that both the purchase agreement and the 2006 deed are
ambiguous. Extrinsic evidence therefore should be considered in determining the
meaning of those documents. We thus remand the case for further proceedings.
So ordered.
27
NEWMAN, Senior Judge, dissenting: Sahrapour failed to properly examine
land conveyed by a deed and land purchase agreement. The two documents may
convey smaller parcels of land than Sahrapour subjectively intended to purchase;
this court should not intervene to correct her missteps absent a sufficient showing
of ambiguity in the documents. The majority’s opinion departs from this court’s
opinion in Abdelrhman v. Ackerman, 76 A.3d 883 (D.C. 2013), and implicitly
adopts the dissent’s method of resolving inconsistencies and ambiguities. Id. at
893 (McLeese, J., dissenting).
I dissent from the majority’s opinion because, in my view, neither the land
purchase agreement nor the deed is sufficiently ambiguous as to permit the
introduction of extrinsic evidence. In addition, I conclude that the corrected deed
is void and that Sahrapour did not acquire the alley through equitable conversion. I
would affirm the trial court’s decision.1
1
Whether Sahrapour might have other remedies is not an issue before us.
28
Deed
Under the objective law of contracts, this court solely relies on the language
of the written document to discern the intent of the parties “unless the written
language is not susceptible of a clear and definite undertaking, or unless there is
fraud, duress, or mutual mistake.” DSP Venture Grp., Inc. v. Allen, 830 A.2d 850,
852 (D.C. 2003) (citation and internal quotation marks omitted). Ambiguity exists
only if the court determines that the proper interpretation of the contract cannot be
derived from the contractual language exclusively, and requires consideration of
evidence outside the contract itself. Steele Founds., Inc. v. Clark Constr. Grp.,
Inc., 937 A.2d 148, 153 (D.C. 2007).
The Second Restatement of Contracts presents the following method for
contract interpretation:
In the interpretation of a promise or agreement or a
term thereof, the following standards of preference are
generally applicable:
(a) an interpretation which gives a reasonable, lawful,
and effective meaning to all the terms is preferred to an
interpretation which leaves a part unreasonable,
unlawful, or of no effect;
(b) express terms are given greater weight than course
of performance, course of dealing, and usage of trade,
29
course of performance is given greater weight than
course of dealing or usage of trade, and course of dealing
is given greater weight than usage of trade;
(c) specific terms and exact terms are given greater
weight than general language;
(d) separately negotiated or added terms are given
greater weight than standardized terms or other terms not
separately negotiated.
Restatement (Second) of Contracts § 203 (1981). This court follows § 203 and
applies the canon that the specific governs the general when both the general and
specific provisions “stand irreconcilably in conflict.” Abdelrhman, supra, 76 A.3d
at 891. Unlike the canon ‘construing the contract against the drafter,’ which
applies only after considering extrinsic evidence,2 the ‘specific governs the
general’ canon applies before considering extrinsic evidence. Id.
The panel in Abdelrhman split regarding the amount of ambiguity needed
before extrinsic evidence of the parties’ intent was admissible. Judge McLeese
2
“Ambiguous language in a contract is generally construed against the
drafter, at least where the parties were relatively equal in bargaining power. A
party who takes an agreement prepared by another, and upon its faith incurs
obligations or parts with his property, should have a construction given to the
instrument favorable to him. This canon of construction, known as contra
proferentem, is a secondary standard of interpretation, and inferior to extrinsic
proof of the parties’ agreement, or to other authority revealing that understanding.”
American Bldg. Maint. Co. v. L’Enfant Plaza Props., Inc., 655 A.2d 858, 862-63
(D.C. 1995) (citations and internal quotation marks omitted).
30
dissented in Abdelrhman because he “would hold that, when considered as a
whole, the language of the lease at issue was ambiguous and that extrinsic
evidence therefore should be considered in interpreting that language.” Id. at 893
(McLeese, J., dissenting). In particular, Judge McLeese’s dissent recognized the
‘specific governs the general canon’ but would not have relied “on the implication
of a specific provision as unambiguously trumping the express statement of a more
general provision” in this specific case. Id. at 894 (McLeese, J., dissenting). The
majority disagreed and found that the two provisions of the lease could be read
together, so there was no need to use the ‘specific governs the general’ canon to
resolve the inconsistency in the lease language. Id. at 891. Today, the majority’s
opinion essentially takes Judge McLeese’s dissent in Abdelrhman and makes it
binding precedent, in derogation of M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971).
There are two provisions in the deed that stand irreconcilably in conflict, the
description of the land, “Lots 21 and 28 in Ambrose Roth’s Subdivision of Lots in
Square 368,” and the tax lots numbers, “Lot 878 in square 368” and “Tax ID:
Square 368, Lots 877 and 878” (handwritten text in italics). The conflict in tax
identification (Tax ID) numbers can be resolved in favor of the handwritten
portion, “Lot 878 in square 368.” Restatement (Second) of Contracts § 203 cmt. f
31
(1981) (“It is sometimes said generally that handwritten terms control typewritten
and printed terms, and typewritten control printed.”).
The second conflict is between “Lots 21 and 28” and “Lot 878 in square
368.” The individual lot numbers are, on average, smaller and more specific than
the Tax ID lot numbers. Square 368 is divided into eighteen lots and eight tax lots
so, on average, the lot numbers provide a more specific description of individual
pieces of land than the tax lot numbers. The subdivision lots are wholly contained
within the tax lots so subdivision lots are more specific than tax lots—not merely a
different method to describe the same land. The canon that “specific terms and
exact terms are given greater weight than general language” resolves this
inconsistency. Restatement (Second) of Contracts § 203 (c). The individual lot
reflects a smaller parcel of land, and is therefore more specific than the tax lot
which reflects, on average, a larger parcel of land.
In addition, the method by which land is recorded in the District reflects the
above reading of the deed. In the District of Columbia, the Office of the Surveyor
uses lots of record to identify and record land records, but tax lot numbers are only
used for the taxation of real estate located in the District of Columbia. D.C. Code
§§ 1-1305–1322 (2012 Repl.) (land records); D.C. Code § 47-701 (2012 Repl.)
32
(taxation of real estate). Given that the deed contains two inconsistent descriptions
of land—one of which accurately cites to two plots of land in the same form used
by the Office of the Surveyor when recording deeds, and the other which cites to a
non-existent tax lot—I conclude that the parties intended the subdivision lot
numbers to reflect the scope of the land conveyed by the deed.
The majority’s opinion cites California and Texas cases for the proposition
that, when descriptions of land in the deed are in conflict, the more specific terms
do not necessarily control. These cases are distinguishable.3 Despite the majority
3
Courts often disagree about the degree of ambiguity needed before a court
can consider extrinsic evidence to discern the intent of the parties. The majority
opinion cites cases from other states that do not follow this court’s method for
resolving inconsistencies, and thus reduces the usefulness of those opinions.
Under California law, courts apparently do not apply canons of construction
to resolve inconsistencies prior to considering extrinsic evidence. In cases where
“metes and bounds [descriptions] clearly conflict[] with its description by lot
number,” “consideration may be given not only to actual uses being made at the
time of the grant, but also to such uses as the facts and circumstances who were
within the reasonable contemplation of the parties at the time of the conveyance.”
Everett v. Bosch, 50 Cal. Rptr. 813, 818 (Dist. Ct. App. 1966) (citation and internal
quotation marks omitted). In addition, California law contains unique statutory
and common law presumptions whereby “[a]n owner of land bounded by a road or
street is presumed to own to the center of the way, but the contrary may be shown”
and “[t]he grant of land adjoining a street or highway which has been wholly made
from, and upon the margin of, the grantor’s land is deemed to comprehend the fee
in the whole of the street.” Id. at 817 n.2, 819 n.3. (citations and internal quotation
marks omitted) (“[A] grantor’s intent to withhold his interest in an alley . . . will
never be presumed, reasoning that there would be no object in the retention by the
33
opinion’s contention otherwise, metes and bounds generally control when they
conflict with other descriptions of land unless if the metes and bounds descriptions
themselves are incomplete. 11 C.J.S. Boundaries § 84 (2015) (“Metes and bounds
in the description of property granted, if established, always control courses and
distances.”).
The majority’s opinion also contends that language located at the end of the
deed referencing “alleys” supports Sahrapour’s argument that the deed is
ambiguous. The deed states, “TOGETHER WITH all improvements thereupon,
and the rights, alleys, ways, waters, privileges, appurtenances and advantages
thereto belonging, or in anywise appertaining.” Courts have held for over 130
years that this language unambiguously states that certain features (easements and
covenants) travel with the land.4 See May v. Smith, 14 D.C. (3 Mackey) 55, 59-60
(1884) (quoting Oliver v. Hook, 47 Md. 301, 308 (1877)).
grantor of a narrow strip of land, which, when separated from the adjoining land,
would be of little or no use to him.”).
The metes and bounds descriptions, referenced in the two Texas cases cited
by the majority opinion, were incomplete and problematic so the court therefore
could not discern intent solely from those descriptions. Grimes v. Jordan, 260
S.W.2d 220, 223 (Tex. Civ. App. 1953); Snow v. Gallup, 123 S.W. 222, 224 (Tex.
Civ. App. 1909).
4
Maryland courts have held that this language in the deed validly assigns
“covenants [or easements] running with the land,” but none have held that this
34
In May, this court had to consider whether the language in the deed,
“together with all and singular the improvements, ways, rights, tenements, and
hereditaments and appurtenances unto the same belonging or in any way
appertaining,” conveyed “a right of way over the remaining part to the public
alley” that bordered the property described in the deed. Id. at 57. This court relied
upon Oliver for the proposition that the deed language, “all and every the rights,
privileges, appurtenances and advantages to the same belonging, or in any wise
appertaining,” would transfer a pre-existing easement through the deed. Id. at 59
(internal quotation marks omitted) (quoting Oliver, supra, 47 Md. at 308). The
factual inquiry that ensued focused on whether there was a pre-existing easement
over the public alley, not whether the deed conveyed title to the alley. Id. at 59-61.
language delineates the boundaries of a property. County Comm’rs of Charles
Cnty. v. St. Charles Assocs. Ltd. P’ship, 784 A.2d 545, 568 (Md. 2001); see also
Olde Severna Park Improvement Ass’n, Inc. v. Gunby, 936 A.2d 365, 373 (Md.
2007); Kobrine, L.L.C. v. Metzger, 846 A.2d 403, 414 (Md. 2004) (It is well-
settled Maryland law that “when a property owner subdivides property and makes
or adopts a plat designating lots as bordering streets, and then sells any of those
lots with reference to the plat, an implied easement of way passes from the grantor
to the grantee . . . over the street contiguous to the property sold” (emphasis added)
(internal quotation marks omitted)); Conrad/Dommel, LLC v. West Dev. Co., 815
A.2d 828, 839 (Md. 2003); Gosnell v. Roberts, 128 A. 276, 276-77 (Md. 1925);
Duvall v. Ridout, 92 A. 209, 210 (Md. 1914).
35
In my view, as established in May, this unambiguous language is not
intended to delineate the exact geographical boundaries of the land, but instead is
intended to clarify what features of the property the parties intend to transfer with
the deed. I see no reason to depart from 130 years of well-established case law to
find an ambiguity in Sahrapour’s deed.
The majority opinion cites Annapolis Rds. Prop. Owner’s Ass’n v. Lindsay,
45 A.3d 749, 784 (2012), aff’d in part, rev’d in part sub nom. Lindsay v. Annapolis
Rds. Prop. Owner’s Ass’n, 64 A.3d 916 (2013), for the proposition that the above-
quoted deed language is ambiguous as to the interest it conveys. I do not read this
opinion as does the majority. In Annapolis Roads, the Maryland Court of Special
Appeals had to decide whether the “the Strip,” a ten-foot strip of land located
between Lots 18 and 19 but wholly contained within Lot 19’s geographic
boundaries, was a roadway or a way. Id. at 767. The court did not struggle to
understand what features traveled with the land, but rather struggled to define
whether “the Strip” was a way, in which case the seller would retain no easement
over the way, or a roadway, in which case the seller would retain an easement. Id.
at 768. The ten-foot strip at issue in Annapolis Roads clearly fell within the
boundaries of Lot 19, so parties did not contest the geographic boundaries set forth
in the respective deeds. Id. at 752 & n.3. The majority is correct that the above-
36
quoted deed language was referenced in the court’s analysis, but it was merely
used to assess whether the owner retained any “rights and interests in the beds of
roadways,” not whether title to the alley was actually conveyed through the deed.
Id. at 768.
In sum, I would affirm the trial court’s ruling that the deed is not ambiguous.
I would rely on well-established canons of contract construction and Maryland law
to reach this conclusion.
Land Purchase Agreement
The majority’s opinion correctly concludes that the land purchase agreement
does not merge with the deed but, in my view, errs in concluding that the
agreement’s description of the land is ambiguous.
The land purchase agreement is similar to the deed but differs in two
significant ways. First, the purchase agreement does not reference the non-existent
Tax ID Lot 877. Second, and more importantly, the purchase agreement states that
the property to be sold is approximately 3,027 square feet. The approximately
3,027 square feet measurement is important because the size of Lot 878, referenced
37
in the purchase agreement, is smaller than 3,027 square feet. Regardless of the
exact discrepancy in square feet between Lot 878 and the 3,027 square foot
description, the parties intended the purchaser to bear the risk that the square
footage description may not match the legal description of the land. We need not
address whether this jurisdiction will adopt the Maryland “in gross presumption”
because the parties’ intent is clear from the purchase agreement.
The purchase agreement describes the relevant property as follows:
The subject of the property, known as 1230 9th Street
NW Washington D.C. 20001, is approximately 3,027 feet
of land improved with an approximately 3,893 square
feet building plus basement located in an area designated
as historic in the Election District 2, zoned C2A, and
legally described as Lots [sic] 878, Block/Square 0368,
Map 40 C in the public land records of the District of
Columbia together with the easements, rights,
appurtenances belonging to the same, and including
fixtures, furnishings, machinery, equipment owned by the
Seller situated on or about said property.
Lot 878 does not describe the entire land that was actually transferred to Sahrapour
because Lot 878 only corresponds to Lot 28 of the ALTA/ACSM Survey, but the
deed transferred both Lot 21 and 28 of the ALTA/ACSM Survey. Regardless of
the deviation of Lot 28’s square footage from the approximately 3,027 square foot
38
description, the purchaser bore the risk of the inaccurate description.
The purchase agreement allocates certain risks to the purchaser with the
following provisions: “15. LOCAL VIOLATIONS; CONDITION AND
OPERATION OF PROPERTY . . . Purchaser has inspected the property, is fully
familiar with the condition thereof and Purchaser agrees to take the Property AS IS
as of the Date of Agreement.” The Addendum to the Real Estate Purchase
Agreement (Addendum) also allocates additional risks to the purchaser:
A. FEASIBILITY STUDY PERIOD. The purchaser
has a thirty (30) days Feasibility Study Period from the
date of this Agreement during which Purchaser can
inspect the Property, perform its studies, place financing
and perform ministerial duties to settle on the Purchase.
During this period, Purchase and its’ [sic] employees,
agents or contractors may enter into the Property upon
prior notice to the Seller for the purpose of inspecting the
Property, performing surveys, studies and ministerial
duties it determines are necessary to determine the
feasibility of purchasing the Property. Prior to the end of
this Period, Purchaser may upon written notice and
receipt by Seller or its’ [sic] Agent terminate this
Agreement in its’ [sic] sole judgment. . . .
D. CONDITION. The property is sold “as is” except for
specific representations and warrantees made by the Seller in
this contract.
The Addendum gave Sahrapour thirty days to inspect the property, Lot 28, and
39
allowed Sahrapour to terminate the agreement whereby the deposit would be
returned. Since “approximately 3,027 square feet” is not a “specific representation
. . . made by the seller,” the purchase agreement and addendum place the burden of
surveying and inspecting the property on the purchaser, Sahrapour.
Because Sahrapour did not properly inspect and survey the property, which
would have revealed the size discrepancy, she now holds title to a piece of land
that may be smaller than what she subjectively intended to purchase. Any
additional land acquired through the deed is over and above what the parties
intended to transfer. The land purchase agreement stated that she would receive
Tax Lot 878 and, given that she signed an addendum which sold the land “as is”
and gave her permission to survey and inspect the land, she bore the risk that the
“approximately 3,027 square feet” description was not accurate. The fact that Tax
Lot 878 is not 3,027 square feet does not create an ambiguity in the description of
the property. I would not resort to extrinsic evidence to discern the intent of the
parties.5
5
Sahrapour would not acquire the disputed property through the doctrine of
equitable conversion because, in my view, the Land Purchase Agreement does not
intend to convey the disputed property, and in any event a valid deed was
executed. Under the doctrine of equitable conversion, this court “views a contract
of sale as immediately vesting the purchaser with beneficial ownership of the
realty, and limiting the property interest of the vendor to the promised
consideration . . . retaining legal title only as trustee for the purchaser until the
40
Corrected Deed
Sahrapour contends that the “corrected” deed reflected a clerical edit
because it did not materially alter what was conveyed in the first deed. I do not
find that persuasive.
A deed is void when the attorney who drafted the deed exceeded his
authority under a general power of attorney. Smith v. Wells Fargo Bank, 991 A.2d
20, 26-27 (D.C. 2010). A “clerical error” is “[a]n error resulting from a minor
mistake or inadvertence and not from judicial reasoning or determination;
[especially] a drafter’s or typist’s technical error that can be rectified without
serious doubt about the correct reading.” Black’s Law Dictionary 659 (10th ed.
2014). “Among the numberless examples of clerical errors are omitting an
appendix from a document; typing an incorrect number; mistranscribing or
omitting an obviously needed word; and failing to log a call.” Id.
The inclusion of “* and a portion of Lot 22 as shown on the attached
deed of conveyance is delivered.” Trustee 1245 13th St., NW No. 608 Trust v.
Anderson, 905 A.2d 181, 184 (D.C. 2006) (emphasis added) (quoting Gustin v.
Stegall, 347 A.2d 917, 922 (D.C. 1975)).
41
survey,” changing the Tax ID to include “and a portion of Lot 885,” and attaching
a new survey reveals that a labor requiring original thought was needed to arrive at
this edit. Merely changing “Lot 877” to “Lot 885” might be a clerical edit,
especially considering Lot 887 does not exist, but these intricate edits were not
indicative of mere clerical edits. Because Haas exceeded his authority under the
Power of Attorney, I would hold that the trial court correctly found the “corrected”
deed was void.
I respectfully dissent.6
6
Sahrapour has filed a legal malpractice claim against Haas which is stayed
pending resolution of the ownership of the disputed alley. Order to Stay,
Sahrapour v. Haas, No. 2011 CA 647 (D.C. Super. Ct. Aug. 30, 2011).