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Definition: Habendum Clause
Habendum Clause is a clause in a deed or lease defining type of interest/rights available to the grantee or lessee. A clause in real estate – is usually a contingency clause defining conditions/actions to be met in order for a binding real estate contract. The contingency clause becomes part of a binding sales contract when both buyer and seller agree to the terms of the contract and sign on it.
A Habendum clause in specific is a section in real estate contracts granting transfer of property ownership without any restrictions(It provides a comprehensive description of the ownership rights of the transferee of such property.). The owner of a property with such a clause has absolute ownership of the property, he can sell it, bequeath it, etc in accordance with government laws and powers. Typically, in a deed or contract the hadendum clause begins with the phrase, “to have and to hold”, and hence the habendum clause is popularly referred to as the “to have and to hold clause”.
Habendum Clause is usually a part of an instrument, i.e will or deed defining the extent of interest that is granted or conveyed and the conformant conditions. The clause provisions must be in agreement with those stated in the granting clause. The property title transferred using a habendum clause is called a "fee simple absolute" type transfer. This grants complete ownership of a property, subject to government laws and powers.
Habendum clauses are found in leases, especially oil & gas leases. It can define how long interest granted extends. Oil and gas leases generally provide for a primary and secondary term. The Habendum Clause is usually the part of the Oil & Gas lease definint how long your land will be covered by the lease.
While a granting clause may contain the words of transfer of an interest, a habendum clause defines the estate granted and declares the extent of the interest conveyed.
Example of a Habendum clause:
"To have and to hold the premises herein granted unto the faction of the first part, and to the male heirs of the faction of the first part hereon."
This habendum clause qualifies the estate granted by effectively limiting its inheritance to the sons/male heirs of the grantee.