Agreement or Contract for Deed for Sale and Purchase of Real Estate a/k/a Land or Executory Contract
VIRGINIA CODE
TITLE 55. PROPERTY AND CONVEYANCES
CHAPTER 1. CREATION AND LIMITATION OF ESTATES; THEIR QUALITIES.
§ 55-1. Aliens may acquire, hold and transmit real estate; when reciprocity required. -
Any alien, not an enemy, may acquire by purchase or descent and hold real estate in this Commonwealth; and the same shall be transmitted in the same manner as real estate held by citizens. However, whenever it appears to a court of this Commonwealth that the laws of a foreign country or sovereignty effectively deny a Virginia resident, legatee or distributee of the benefit, use or control of money or other property held in that jurisdiction, a judgment, order or decree issued in the Commonwealth concerning the rights of a resident of that foreign country or sovereignty to the benefit, use or control of money or property held in the Commonwealth, may direct that the money or property be paid into the court for the benefit of the alien. The money or property paid into court shall be paid out only upon order of the court or pursuant to the order or judgment of a court of competent jurisdiction. Any of the money or property remaining with the court upon expiration of three years from the decedent's death shall be paid out by the court as if the alien had predeceased the decedent.
Code 1919, § 66; 1993, c. 535 .
§ 55-2. When deed or will necessary to convey estate; no parol partition or gift valid.
No estate of inheritance or freehold or for a term of more than five years in lands shall be conveyed unless by deed or will, nor shall any voluntary partition of lands by coparceners, having such an estate therein, be made, except by deed; nor shall any right to a conveyance of any such estate or term in land accrue to the donee of the land or those claiming under him, under a gift or promise of gift of the same not in writing, although such gift or promise be followed by possession thereunder and improvement of the land by the donee or those claiming under him.
Code 1919, § 5141.
§ 55-3. When gift of goods or chattels invalid.
No gift of any goods or chattels shall be valid unless by deed or will, or unless actual possession shall have come to and remained with the donee or some person claiming under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be a sufficient possession within the meaning of this section. This section shall not apply to personal paraphernalia used exclusively by the donee.
Code 1919, § 5142; 1973, c. 401.
§ 55-5. Estates to lie in grant as well as in livery.
All real estate shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery.
Code 1919, § 5146.
§ 55-6. Same estates may be created by deed as by will.
Any interest in or claim to real estate, including easements in gross, may be disposed of by deed or will. Any estate may be made to commence in futuro, by deed, in like manner as by will; and any estate which would be good as an executory devise or bequest shall be good if created by deed.
Code 1919, § 5147; 1962, c. 169.
§ 55-9. Conveyance of estate or interest in property by grantor to himself and another.
Any person having an estate or interest in real or personal property may convey the same to himself or to himself and another or others, including to himself and his spouse as tenants by the entireties or otherwise, and the fact that one or more persons are both grantor or grantee or grantors and grantees in the same conveyance shall be no objection to the conveyance. The grantee or grantees in any such conveyance shall take title in like manner and the estate vested in them shall be the same as if the conveyance had been made by one or more persons who are not also grantee or grantees therein.
All such conveyances made prior to July 1, 1986, are validated notwithstanding defects in the form thereof which do not affect vested rights.
1945, p. 39; Michie Suppl. 1946, § 5147a; 1986, c. 583; 1987, c. 186; 1999, c. 196.
§ 55-10. Deed good for grantor's right; operation of warranty.
A writing which purports to pass or assure a greater right or interest in real estate than the person making it may lawfully pass or assure shall operate as an alienation of such right or interest in such real estate as such person might lawfully convey or assure; and when the deed of the alienor mentions that he and his heirs will warrant what it purports to pass or assure, if anything descends from him, his heirs shall be barred for the value of what is so descended or liable for such value.
Code 1919, § 5148.
§ 55-11. Grant, etc., without words of limitation.
When any real estate is conveyed, devised or granted to any person without any words of limitation such devise, conveyance or grant shall be construed to pass the fee simple or other whole estate or interest which the testator or grantor has power to dispose of in such real estate, unless a contrary intention shall appear by the will, conveyance or grant.
Code 1919, § 5149.
§ 55-13. Certain limitations construed.
Every limitation in any deed or will contingent upon the dying of any person without heirs, heirs of the body, issue, issue of the body, children, offspring or descendant, or other relative, shall be construed a limitation to take effect when such person shall die not having such heir, issue, child, offspring, descendant, or other relative, as the case may be, living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise plainly declared on the face of the deed or will creating it.
Code 1919, § 5151.
§ 55-17. In what conveyances possession transferred to the use.
By deed of bargain and sale, or by deeds of lease and release, or by covenant to stand seized to the use, or deed operating by way of covenant to stand seized to the use, the possession of the bargainor, releasor or covenantor shall be deemed transferred to the bargainee, releasee or person entitled to the use, for the estate or interest which such person has in the use, as perfectly as if the bargainee, releasee or person entitled to the use had been enfeoffed with livery of seisin of the land intended to be conveyed by such deed or covenant.
Code 1919, § 5155.
§ 55-18. Deed of release effectual.
Every deed of release of any estate or interest capable of passing by deeds of lease or release shall be as effectual for the purposes therein expressed, without the execution of a lease, as if the same had been executed.
Code 1919, § 5156.
VIRGINIA CODE
TITLE 55. PROPERTY AND CONVEYANCES
CHAPTER 4. FORM AND EFFECT OF DEEDS AND COVENANTS; LIENS
ARTICLE 1. FORM AND EFFECT OF DEEDS AND LEASES
§ 55-48. Form of a deed. -
Every deed and corrected or amended deed may be made in the following form, or to the same effect: "This deed, made the ....... day of ........, in the year .........., between (here insert names of parties as grantors or grantees), witnesseth: that in consideration of (here state the consideration, nominal or actual), the said ....... does (or do) grant (or grant and convey) unto the said ........, all (here describe the property or interest therein to be conveyed,
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including the name of the city or county in which the property is located, and insert covenants or any other provisions). Witness the following signature (or signatures).”<br />
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Code 1919, § 5162; 1990, cc. 208, 374; 2011, c. 701; 2014, c. 338.<br />
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§ 55-49. How construed.<br />
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Every such deed conveying lands shall, unless an exception be made therein, be construed to include all the estate, right, title, and interest whatever, both at law and in equity, of the grantor in or to such lands.<br />
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Code 1919, § 5163.<br />
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§ 55-49.1. Construction of generic terms.<br />
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In the interpretation of deeds, adopted persons and persons born out of wedlock are included in class gift terminology or terms of relationship in accordance with rules for determining relationships for purposes of intestate succession unless a contrary intent appears on the face of the deed. In determining the intent of a grantor, adopted persons are presumptively included in such terms as “children,” “issue,” “kindred,” “heirs,” “relatives,” “descendents” or similar words of classification and are presumptively excluded by such terms as “natural children,” “issue of the body,” “blood kindred,” “heirs of the body,” “blood relatives,” “descendents of the body” or similar words of classification.<br />
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1987, c. 604.<br />
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§ 55-50. Appurtenances, etc., included in deed of land; relocation of easement.<br />
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Every deed conveying land shall be construed to include all buildings, privileges and appurtenances of every kind belonging to the lands therein embraced unless an exception therefor is made in the deed. The owner of land which is subject to an easement for the purpose of ingress and egress may relocate the easement, on the servient estate, by recording in the office of the clerk of the circuit court of the county or city wherein the easement or any part thereof is located, a written agreement evidencing the consent of all affected persons and setting forth the new location of the easement. In the absence of such written agreement, the owner of the land which is subject to such easement may seek relocation of the easement on the servient estate upon petition to the circuit court and notice to all parties in interest. The petition shall be granted if, after a hearing held, the court finds that (i) the relocation will not result in economic damage to the parties in interest, (ii) there will be no undue hardship created by the relocation, and (iii) the easement has been in existence for not less than ten years.<br />
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Code 1919, § 5168; 1992, c. 373 .<br />
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§ 55-50.1. Enjoyment of easement.<br />
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Unless otherwise provided for in the terms of an easement, the owner of a dominant estate shall not use an easement in a way that is not reasonably consistent with the uses contemplated by the grant of the easement, and the owner of the servient estate shall not engage in an activity or cause to be present any objects either upon the burdened land or immediately adjacent thereto which unreasonably interferes with the enjoyment of the easement by the owner of the dominant estate. The term “object” as contained in this section shall not include any fence, electric fence, cattle guard, gate, or division fence adjacent to such easement as those terms are defined in §§ 55-298.1 through 55-322. Any violation of this section may be deemed a private nuisance, provided, however, that the remedy for a violation of this section shall not in any manner impair the right to any other relief that may be applicable at law or in equity.<br />
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2003, c. 774; 2007, c. 931.<br />
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§ 55-50.2. Utility easements.<br />
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Where an easement, whether appurtenant or gross, is expressly granted by an instrument recorded on or after July 1, 2006, that imposes on a servient tract of land a covenant to provide an easement in the future for the benefit of utility services, to relocate, construct, or maintain facilities owned by a entity that provides utility services, or pay the cost of such relocation, construction, or maintenance, such covenant shall be deemed for all purposes to touch and concern the servient tract, to run with the servient tract, its successors, and assigns for the benefit of the entity providing utility services, its successors, and assigns.<br />
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“Utility services” for the purposes of this section, means any products, services and equipment related to energy, telecommunications, water and sewerage.<br />
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2006, c. 795.<br />
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§ 55-51. Deeds good between parties.<br />
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Any deed, or a part of a deed, which shall fail to take effect by virtue of this chapter shall, nevertheless, be as valid and effectual and as binding upon the parties thereto, so far as the rules of law and equity will permit, as if this chapter had not been enacted.<br />
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Code 1919, § 5169.<br />
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§ 55-52. Conveyance of property not owned but subsequently acquired.<br />
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When a deed purports to convey property, real or personal, describing it with reasonable certainty, which the grantor does not own at the time of the execution of the deed, but subsequently acquires, such deed shall, as between the parties thereto, have the same effect as if the title which the grantor subsequently acquires were vested in him at the time of the execution of such deed and thereby conveyed.<br />
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Code 1919, § 5202; 1958, c. 424; 1990, c. 831 .<br />
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§ 55-53. Vendor’s equitable lien abolished.<br />
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If any person hereafter convey any real estate and the purchase money or any part thereof remain unpaid at the time of the conveyance, he shall not thereby have a lien for such unpaid purchase money, unless such lien is expressly reserved on the face of the conveyance.<br />
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Code 1919, § 5183.<br />
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§ 55-54. Certain deeds to county real estate validated.<br />
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All deeds executed prior to January 1, 1920, by a county commissioner, or commissioners, or board of supervisors, conveying any part of the real estate previously acquired by such county for county purposes, are hereby validated, and declared to have effectually passed the title to the part so conveyed even though the conveyance thereof reduced the real estate of the county to an area less than the county was required by law to own at the time of such conveyance.<br />
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1934, p. 228; Michie Code 1942, § 5183a.<br />
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§ 55-55. Validation of sales, etc., by county courts prior to 1860.<br />
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All sales or leases made prior to the year 1860, by the county court, or court of monthly session, of any county, of any land or building then owned by such county and situated within the limits of land previously acquired by such county as a site for its courthouse and other public buildings, when the consideration therefor has been fully paid and the purchaser, or lessee as the case may be, and those claiming through or under him, shall have held continuous possession of such land or building from January 1, 1860, until January 1, 1934, are hereby validated and declared to be forever binding upon such county.<br />
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1934, p. 311; Michie Code 1942, § 5183b.<br />
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§ 55-56. Deeds and writings executed for persons in military service, etc., under defective powers.<br />
All deeds or other writings executed by an agent or attorney in fact for a person in the armed forces or military service of the United States, or for a person who after executing a power of attorney or agency agreement entered the armed forces or military service of the United States, or for a person who departed from the United States by permission or direction of any department or official of the United States in connection with work relating to the prosecution of the war, when the power of attorney or agency agreement under which the deed or other instrument was signed was not executed in such a manner as to be valid as a sealed instrument, shall be held, and the same are hereby declared, valid and effective in all respects if otherwise valid according to the law then in force.<br />
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The provisions of this section shall not operate to affect adversely intervening vested rights.<br />
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1946, p. 190; Michie Suppl. 1946, § 5145a.<br />
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§ 55-57. Form of a lease.<br />
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A deed of lease may be made in the following form, or to the same effect: “This deed, made the .… day of …….., in the year ………., between (herein insert the names of parties), witnesseth: that the said ….… doth (or do) demise unto the said …….., his personal representative and assigns, all (here describe the property) from the ….… day of ………., for the term of ………., thence ensuing, yielding therefor during the said term the rent of (here state the rent and mode of payment). Witness the following signature and seal (or signatures and seals).”<br />
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Code 1919, § 5165.<br />
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§ 55-57.1. Memoranda of leases and options.<br />
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A. In lieu of the recording of a lease, there may be recorded with like effect a memorandum of such lease, executed by the lessor and the lessee in the manner which would entitle a conveyance to be recorded. A memorandum of lease thus entitled to be recorded shall contain at least the following information with respect to the lease: the name of the lessor, the name of the lessee and a reference to the lease; the addresses, if any, set forth in the lease as addresses of such parties; its date; a description of the leased premises; and a statement of the term, commencement date or termination date and rights of extension or renewal, if any, to the extent required to determine the period for which or date to which the lease may be in effect.<br />
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B. In lieu of the recording of an option to purchase real estate, there may be recorded with like effect a memorandum of such option, executed by the grantor of the option in the manner which would entitle a conveyance to be recorded. A memorandum of option to purchase real estate thus entitled to be recorded shall contain at least the following information with respect to the option:<br />
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1. The name of the person granting the option;<br />
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2. The name of the optionee and a reference to the option;<br />
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3. The addresses, if any, set forth in the agreement as addresses of such parties;<br />
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4. Its date;<br />
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5. A description of the optioned premises;<br />
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6. The option price or reference to the document containing the method with regard to how the option price is computed; and<br />
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7. The statement of the term, commencement date or termination date, and rights of extension or renewal, if any, to the extent required to determine the period during which or date to which the option may be in effect.<br />
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1978, c. 628; 1982, c. 365; 1984, c. 573.<br />
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§ 55-57.2. Effect of option; recording.<br />
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A. Any option to purchase real estate, and any memorandum, renewal or extension thereof, shall be void as to (i) all purchasers for valuable consideration without notice not parties thereto and (ii) lien creditors, until such instrument is recorded in the county or city where the property embraced in the option, memorandum, renewal or extension is located.<br />
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B. Notwithstanding any rule of law or equity denominated “fettering,” “clogging the equity of redemption” or “claiming a collateral advantage” or any similar rule:<br />
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1. A party secured by a mortgage or deed of trust, without adversely affecting his security interest, may acquire from a borrower any direct or indirect present or future ownership interest in the collateral encumbered thereby, including rights to any income, proceeds or increase in value derived from such collateral; and<br />
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2. An option to acquire an interest in real estate granted to a party secured by a mortgage or deed of trust, other than an option granted to such party in connection with a mortgage loan as defined in § 6.2-1600, is effective according to its terms and takes priority as provided in subsection A of this section if the right to exercise the option is not dependent upon the occurrence of a default under the mortgage or deed of trust.<br />
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1989, c. 596 .<br />
VIRGINIA CASE LAW<br />
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Contracts for deed have been specifically recognized in Virginia. While not favored in law because of the opportunity both for fraud and for their failure to reflect the true nature of the transaction, and, further, because of the draconian consequences to a defaulting purchaser, nonetheless such legal vehicles of conveyance remain valid in Virginia. Treasurer of Fairfax v. Henretty, 48 Va.Cir. 255 (1999)<br />
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The fact that a vendor in a contract for the sale of land does not have the capacity to convey good title on the date of a contract does not invalidate the contract or affect the vendor’s right to damages for breach if he acquires capacity to convey good title on the date fixed for delivery of the deed. Waskey v. Thomas, 218 Va. 109 (1977)<br />
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Where a contract for the sale of land calls for purchase by installment payments and delivery of a deed upon final payment, and a vendor misrepresents his capacity to convey what he has contracted to convey, or concealed defects in the title, the general rule of a vendor’s right to is subject to exception. Id.
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