EDWARD L. HAMM, JR.
CHARLES W. HAZELWOOD, JR., ADMINISTRATOR DBN FOR THE ESTATE OF MELBA BIGELOW CLARKE, DECEASED, ET AL.
The Circuit Court of Fairfax County, Grace Burke Carroll,
JUSTICE D. ARTHUR KELSEY
circuit court declared void a provision in a real property
deed that sought to create a contingent reversionary interest
in the grantor and her heirs. The beneficiary of that
interest, Edward L. Hamm, Jr., argues on appeal that the
provision, known as a possibility of reverter at common law,
lawfully vested him with the reversionary interest. We agree
and, thus, reverse the court's holding to the contrary.
1989, Dorothy Bigelow Hamm executed and recorded a deed of
gift transferring her one-half interest in a parcel of
property to her sister, Melba Bigelow Clarke. Dorothy's husband joined in the
conveyance. The deed of gift reserved a life estate for
Dorothy for the duration of her life. She died in 2004,
thereby extinguishing the life estate. In her will, Dorothy
left any interest she had in the property to her son, Edward.
Melba had children, including a son, Reginald Wayne Clarke,
at the time of Dorothy's deed of gift. In the deed of
gift, Dorothy included a provision that specifically
The PROPERTY hereby conveyed shall AUTOMATICALLY REVERT to
Dorothy Bigelow Hamm, one of the parties of the first part,
in the event Reginald Wayne Clarke, son of the party of the
second part, ever acquires any interest therein by grant,
inheritance or otherwise or is otherwise permitted to occupy,
even temporarily, any portion of said property.
J.A. at 7. Nothing in the record
explains Dorothy's reasons for including this provision
in the deed.
died intestate in 2012, eight years after her
sister. Melba's heirs included
six children, including Reginald, and her three
grandchildren. The administrator of Melba's estate,
Charles W. Hazelwood, Jr., filed a petition for aid and
direction seeking a judicial order declaring that the
possibility-of-reverter provision in the deed was void as an
impermissible restraint on alienation. Edward countered that
the provision was a lawful possibility of reverter limited in
scope and in time to the life of a single person, Reginald.
Id. at 54-55. Rejecting Edward's view, the
circuit court held that "the possibility of reverter
contained in the Deed of Gift is void and unenforceable under
Virginia law" and, thus, would be "hereby stricken
from the conveyance." Id. at 34.
appeal, Edward argues that nothing in either Virginia law or
any background principle of English common law forbids a
landowner from conveying property subject to this type of
contingent reversionary interest. We agree.
first premise of property law is that a lawful owner, as a
general rule, has the power to convey his real property to
whomever he wishes under whatever conditions they agree to.
"The exclusive right of using and transferring property,
" Chancellor Kent explained, "follows as a natural
consequence, from the perception and admission of the right
itself." 2 James Kent, Commentaries on American Law
257-58 (1827). At common law, a lawful owner's right to
property "consists in the free use, enjoyment, and
disposal of all his acquisitions, without any control or
diminution, save only by the laws of the land." 1
William Blackstone, Commentaries *138; see
Restatement (Second) of Property: Donative Transfers div. 1,
pt. 2, intro. note (1992) ("The power of the current
holder of property to alienate cannot be plenary unless he
can hamper the power of future holders to alienate it, either
directly or indirectly.").
deed of conveyance uses no "words of limitation, "
Virginia law treats it as a transfer of a fee simple interest
"unless a contrary intention shall appear." Code
§ 55-11. Such "contrary intention, "
id., could include an express reservation of a
contingent reversionary interest. The grantor's right to
impose such a condition, however, is not absolute. Centuries
of common-law jurisprudence have marked off the legal
boundaries of this presumptive right.
the best-known boundary is the historic maxim against
unreasonable restraints on alienation. In the late 1400s,
Judge Littleton declared void as "against reason"
conveyance conditions that denied a grantee the power to
"alien" the property conveyed "to any
person." Thomas Littleton, Littleton's Tenures,
§ 360 (Eugene Wambaugh ed., 1903). Lord Coke confirmed
this view, stating that under English common law such
conditions are "repugnant and against law." Coke
upon Littleton § 206b (Thomas Coventry ed., 1830);
see also id. § 223a (noting that if a condition
"ousts not the feoffee of his power to alien the land
whereof the feoffment is made . . . there is no repugnancy to
prohibition, however, did not apply to a condition against
alienating to a particular person, "naming his name, or
to any of his heirs, or of the issues" of such person,
because such a condition "do[es] not take away
all power of alienation from the feoffee."
Id. (emphasis added). "Similar statements may
be found in Year Book cases dating from the 15th
century." Restatement (Second) of Property: Donative
Transfers div. 1, pt. 2, intro. note (citing J. Gray,
Restraints on Alienation § 18 (2d ed. 1895)).
modern courts continue to hold to the ancient view that
"a condition in restraint of alienation general as to
time and person is void." 3 Thompson on Real Property
§ 29.05, at 793 (David Thomas ed., 3d ed. 2012); see
also 10 Powell on Real Property § 77.02, at 77-7
(Michael Wolf ed., 2016); 1 Raleigh C. Minor, The Law of Real
Property § 579, at 658-59 (1908). We, too, follow this
common-law principle and have applied it in various contexts.
See, e.g., Edwards v. Bradley, 227 Va. 224,
228, 315 S.E.2d 196, 198 (1984) ("[A] ...