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Habendum Clause ensures transfer of absolute title

[b:8102d710aa]Habendum Clause[/b:8102d710aa] is a very common clause stated on deeds used to transfer ownership rights on property. The clause defines the nature of the estate granted to a person, the extent of the interest transferred and the rights and obligations on the property.
[b:8102d710aa]
What the clause implies[/b:8102d710aa]
The clause is written in the language - "To have and to hold the property herein granted to the party of the second part, the heirs and successors and assigns of the party of the second part, forever."

The statement implies that the owner of real property or the grantor also known as the "party of the first part" in the deed is transferring the property-title to the grantee or "the party of the second part."

[b:8102d710aa]Why the clause is included in a deed[/b:8102d710aa]
The clause is included in the deed in order to clarify that the grantor has transferred absolute title or ownership rights on the property to the grantee. This implies that the grantee receives title which is free of any lien or judgment.

For instance, in case of transfer of life estate, a grantee holds ownership rights on property and can use it only for his lifetime. Upon his death, the ownership rights are transferred back to the grantor. With such a title, the grantee holds ownership rights only for his/her lifetime and cannot pass on the rights to his heirs or beneficiaries. In order to clarify that the property transfer is free from such restrictions, a Habendum Clause is used.

[b:8102d710aa]How Habendum Clause differs from other Clause in a deed[/b:8102d710aa]
The Clause supplements the Granting Clause which is also a part of the deed. Unlike a Habendum Clause, the Granting Clause contains the words of the transfer of property to the grantee. These clauses help to determine the duration of the estate or other rights offered by the transfer in addition to the general rights of the parties involved in the transfer. In certain states like New York, a deed without a Habendum Clause creates an unmarketable title. Thus, both the Habendum and Granting Clauses make up a well drafted deed used to convey interest or title in the property.
Related Article:[list:8102d710aa][*:8102d710aa] Transferring Property Rights through Deed[/list:u:8102d710aa]Other Clauses in Mortgage[list:8102d710aa][*:8102d710aa] Demand clause allows lender to repayment the outstanding loan[*:8102d710aa] Assumption clause allow seller to transfer the mortgage [*:8102d710aa] 72 Hour Clause[/list:u:8102d710aa]

Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

my wife's parents quit claimed their house in equal parts to the four children the parents having right to remain until death. one son lives in the house with parents does the fact that he lives in the house bestow any additional rights to him. this is in massachusetts

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Samantha's picture
Samantha | Joined: September 16, 2005 11:59 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Jrb,

Welcome to MortgageFit Forums.

Your query has been attended here. Kindly check and do get back to us if you have any more query.

God bless you.

For Mortgagefit,
Samantha

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

I purchased a home in 1995, since then the mortgage lender/bank changed hands three times. I then filed bankruptcy ch 13 in 2002, in 2005 while out of state and attending college, I tried again to keep my home and refinanced online with a lender. My old loan was paid off in full and I received a loan satisfied certificate from the old lender, However, when I returned home, I began receiving letters from a totally different mortgage lender/loan processor. Ultimately the house was foreclosed on. How do I know if the deed of trust or chain of title is accurate or if it legally changed hands through all these transfers of lenders/processors?

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adonis's picture
adonis | Joined: October 22, 2005 05:04 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Hi Dave-Kim,

In my opinion, you should contact an attorney and take his opinion regarding the whole issue. If you had received a mortgage release certificate from your lender, then the other lender cannot foreclose the property. The attorney will be the right person to help you in this regard.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Jessica,

I fortunately never ran across a case involving what herein follows but was wondering if you had heard of it or had had experience with it.

The subject involves where the deceased leaves a debt rather than an asset and the beneficiary must take certain action to prevent suffering of a financial loss. The example I have heard about involved the transfer of title to a mineral interest (only) in a piece of land on which an oil well had been drilled, pumped dry, and had yet to be plugged. In other words, the "beneficiary," would, if the transfer were allowed to take effect, "inherit" the cost of plugging the dry hole. The remedy one of my books suggested was that the beneficary must file a "disclaimer" within a prescribed amount of time to prevent and nullify the bequest.

Your thoughts on this subject will be most appreciated.

Charles "Chuck" Neely

[size=9:eb8c42115d][color=Red:eb8c42115d][Email address deleted as per forum rules. Thanks.][/color:eb8c42115d][/size:eb8c42115d]

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riseabove's picture
riseabove | Joined: November 9, 2009 12:58 pm | Posts: 0 | Location: New Jersey | 00 Dollars($)

does the use of "forever" in this clause in any way affect the lenders rights in the event of foreclosure being required? Or are foreclosure arrangements detailed later in the document?

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

Foreclosure arrangements are later on detailed in the documents.

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

What are the relevance of habendum in a deed of assignment?

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Anonymous's picture
Anonymous | Joined: June 8, 2004 01:06 am | Posts: 0 | Location: New Jersey | 00 Dollars($)

It will be better to contact an attorney and he will explain the relevance of the clause.

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