Tisha is a licensed real estate agent in Texas. She holds bachelor's in legal studies and a master's degree in criminal justice.
The Habendum Clause: How to Define and Understand This Clause
When we hear the phrase to have and to hold many of us will immediately think of marriage. This could cause one of two reactions: happiness or sheer terror. The reactions are dependent on each person, their current position in life, and how ready they are to make such a huge commitment. It comes to no surprise that to have and to hold refers to another huge commitment; purchasing a home. In marriage, a promise is made to commit ones life to another person and that's very close to buying a home.
When buying a home, the buyer is committing to years of mortgage payments, liabilities, and the headaches involved with unexpected repairs. A bride and groom, when marrying, is committing to much of the same. With real estate, to have and to hold is also known as the habendum clause. Before jumping into such a big ball and chain, it's important to understand everything about the habendum clause.
Real estate contracts are hard to understand and can lock someone in to years of responsibility. There are lots of legal terms that most people don't know the meaning of. For example, the legal definition of the habendum clause is: the phrase beginning with to have and to hold in a deed to real property that gives a description of the ownership rights that come with the property. But what does this mean? An example will follow.
The legal definition of the clause tells us what estate was granted and what interest in the estate was granted. We might think of a sprawling manor home complete with a maid and a butler when we hear the word estate but it could mean your grandmother's tiny little two bedroom house, your best friend's huge home on the golf course, or any home. The habendum clause tells us what property is being transferred and who it is being transferred to. It could even tell us who will get that particular estate in the future.
How would this clause work for us? Perhaps a woman swore off men after her husband ran off with the nanny, so she decided to leave her estate to her female heirs only. She could do this, using a habendum clause. The type of property being transferred in a habendum clause is fee simple absolute, so the person receiving it will have complete ownership of it. They don't have to worry about it being handed over to someone else or reverting back to the estate if they stop using the property in a particular way.
Why is this important? For the woman that swore off men, it would mean transferring her property to her female heirs to use as they please, without having to worry about the male members of the family having control of it.
We are all likely to have to deal with a real estate transaction at some point in our lives. Perhaps we are buying our home, a family member has passed away and we have to deal with their estate, or we have chosen real estate as our career. While figuring out the meanings of different clauses could be easy for a real estate agent, an heir who is trying to figure out if his grandmother left her home to him or her favorite niece may have a difficult time. The phrase to have and to hold may send someone running for the hills until they realize it's not a long-time girlfriend trying to get that ball and chain around her boyfriend's ankle.
A habendum clause simply names who is going to receive property and have complete ownership of it. It can help an owner control who their property goes to, and what they do with that property. It may make family members who would like to inherit property think about their behavior so they don't get left out when a relative dies. Let's just hope that great uncle didn't run off with the nanny and leave the great aunt despising the male race.
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