A habendum clause is a type of clause commonly found in property transfer documents, such as deeds or leases. Sometimes called the “to have and to hold” clause, the habendum clause lays out any specific restrictions regarding the extent of ownership and rights of the new owner or lessee. In addition to restrictions on what may be done with the property, the habendum clause may also detail for how long, or until what condition, the rights of the owner extend.
In most leases or deeds, the habendum clause is found directly beneath the granting clause. While the granting clause details what property is being transferred, the habendum clause specifies the rights of the owner regarding the property. The alternate name for this type of clause comes from the common legal wording of the section, which usually begins with the words “to have and to hold.”
If the property is being transferred fully, the clause may simply state that the owner has the right to do whatever he or she wishes with the property, without time restrictions, under applicable laws. Most real estate deeds that are drawn up as the result of a sale simply grant the new owner full and unlimited use of the property, without time restrictions. If there are any restrictions regarding ownership, this clause will outline them in specific detail.
Restrictions found in the the habendum clause may include the extent of the lessee's ownership. For instance, if a person purchases an interest in a time share condo, he or she is only entitled to the percentage of ownership purchased, not the full and absolute ownership of the condo. Another limitation of ownership might occur if a person has been granted the use of a piece of property only for his or her lifetime, that will revert to the original owner upon the lessee's death. In most cases, the habendum clause will detail this restriction, as well as defining who will receive the deed upon the death of the current lessee.
Usage restrictions are also detailed in this type of clause. Time share lessee's, for instance, may be restricted from taking certain actions during their tenancy at the time share, even though they technically possess some ownership of the property. Usage restrictions might include rules about damaging the property, or making permanent cosmetic alterations. Lessees may also be restricted from engaging in any type of illegal activity on the property, or from breaking Home Owner's Association rules that apply to the property.
