If a county fails to maintain a historic building on land deeded from the state, can the state take the land back?

Plain-English summary

Fort Boykin is a Civil War-era earthwork fort on a 14.43-acre property in Isle of Wight County. Sarah Elizabeth Jordan, the last private owner, deeded the property to the Commonwealth of Virginia in 1974. In 1999, the Department of Conservation and Recreation deeded it on to Isle of Wight County (the surrounding locality) under authority granted by the General Assembly.

The deed contained four covenants that ran with the land:
1. Properly maintain and preserve Fort Boykin and its breastworks as an ancient fort.
2. Maintain a bronze memorial plaque on the grounds.
3. Maintain and preserve the existing dwelling (Sarah Jordan's former home) in good condition.
4. Use, maintain, and regularly keep the property open to the public for recreational and park use.

By April 2012, the dwelling had fallen into substantial disrepair (termite damage, foundation issues from improperly sized floor joists, water leakage). On March 20, 2013, an accidental electrical fire severely damaged the dwelling, with damage exceeding the structure's value. The Isle of Wight County Attorney asked the AG two questions: did the county breach the covenant, and if so, could the Commonwealth reclaim title to the entire Fort Boykin property?

The AG's answer was nuanced.

On the covenant. The deed's covenant required maintenance and preservation "in good condition." Maintenance under Virginia Supreme Court precedent means keeping "in a state of repair" and includes the obligation to "fix or restore what is torn or broken." Preserve carries an additional duty to take reasonable measures to protect from injury, harm, or destruction. So the maintenance obligation reached both routine repair and reasonable protective measures.

Based on the facts, the county appears to have breached the covenant through its years of inaction on the visible deterioration. The AG could not determine whether the electrical fire itself was a breach because the cause was an undetermined electrical malfunction in the panel box; the AG would have needed more facts to say whether the county had failed to take reasonable protective measures against electrical risk.

On the reverter. This is where the deed structure controlled. A deed covenant by itself does not automatically allow the grantor to reclaim title; the breach only gives the right to sue for damages or specific performance. To trigger reverter, the deed must contain a "condition subsequent" specifically tied to the breached covenant.

The Fort Boykin deed did contain a condition subsequent and reverter clause. But the language was specific: it triggered reverter if (a) Fort Boykin (the fort itself, its breastworks, and other remaining physical features) was not properly maintained as an ancient fort, or (b) the property was not used as a public park.

The condition subsequent did not mention the dwelling. The dwelling covenant stood alone as a covenant, with no associated condition-subsequent trigger.

Virginia law disfavors forfeitures and strictly construes conditions subsequent. As the Virginia Supreme Court has said, "a party who insists upon a forfeiture of an estate for breach of a condition must bring himself clearly within the terms of the condition." The Commonwealth here could not, because the dwelling was not part of the forfeiture-triggering language.

The practical upshot. The Commonwealth had legal remedies for the breach of the dwelling covenant: it could have sued for damages. Specific performance was effectively obviated by the total loss of the dwelling. But it could not reclaim the entire Fort Boykin property as a remedy for failing to maintain the dwelling. That tracked closely the structure the parties had chosen in the 1999 deed.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The general principles here (Virginia disfavor of forfeitures, strict construction of conditions subsequent, distinction between covenants and conditions) are durable, but anyone facing a specific deed-interpretation question should consult current law and counsel familiar with the property's specific deed history.

Common questions

What is a covenant in a deed?
A promise by the grantee (or grantor) that runs with the land, binding the current and future owners. Covenants are enforceable through ordinary contract remedies (damages, specific performance), but they do not automatically forfeit title.

What is a condition subsequent?
A more powerful drafting device. A condition subsequent creates a possibility that title will return to the grantor if a specified event happens. Unlike a covenant, the breach of a condition subsequent can trigger forfeiture of the entire estate, subject to the grantor's enforcement action.

Why isn't a covenant enough to trigger a take-back?
Because Virginia (like most states) disfavors forfeitures. Forfeitures are powerful: they cancel the grantee's investment in the property and reverse a previously completed transaction. So Virginia requires that any forfeiture-triggering language be explicit. A general covenant to "maintain" something doesn't get there; the deed must say that breach of that specific obligation triggers reverter.

What can the state do here?
Sue for damages for breach of the dwelling-maintenance covenant. Specific performance is essentially impossible because the dwelling is gone. So the Commonwealth's practical remedy is monetary damages, which depends on calculating the value of the lost dwelling and any related harm to the historic site.

Could the deed have been drafted to allow reverter for dwelling neglect?
Yes. Had the condition-subsequent language said something like "if any of the foregoing covenants are breached, all right, title and interest shall revert," the dwelling covenant would have been within the forfeiture trigger. The 1999 drafters chose narrower language tied only to the fort and the park use.

What does "strictly construed" mean in deed law?
The court reads the language literally and narrowly, resolving ambiguities against the party seeking the harsh result (here, forfeiture). When the grantor wants to take property back, the grantor has to point to clear, unambiguous language authorizing exactly that result.

What if both the fort and the dwelling had been neglected?
That would change the analysis. Neglect of the fort itself, or failure to maintain park use, would have triggered the reverter clause directly. So if Isle of Wight had stopped maintaining the breastworks, or had closed the property to the public, the Commonwealth could have used the reverter.

Background and statutory framework

The deed and statutory framework:
- 1998 Va. Acts ch. 41: authorized the DCR to convey Fort Boykin to Isle of Wight County.
- Deed of Conveyance, Instrument #99-5244, recorded September 29, 1999, in the Office of the Circuit Court Clerk, Isle of Wight County.
- Va. Code § 8.01-131: ejectment procedure (the mechanism for enforcing reverter).

The interpretive principles the AG applied:
- Look only at the four corners of the deed when language is clear (Forster v. Hall).
- "Maintenance" means keeping "in a state of repair"; "preserve" includes taking reasonable protective measures.
- A maintenance obligation generally does not require improvements (Montgomery v. Columbia Knoll).
- A condition subsequent does not execute automatically; the grantor must take affirmative action through an action of ejectment to enforce reverter.
- Forfeitures are disfavored; conditions subsequent are strictly construed; the party seeking forfeiture bears the burden of bringing themselves clearly within the condition's terms.

Citations

• Va. Code § 8.01-131 et seq. (ejectment)
• Forster v. Hall, 265 Va. 293, 576 S.E.2d 746 (2003)
• Montgomery v. Columbia Knoll Condo. Council, 231 Va. 437, 344 S.E.2d 912 (1986)
• Neal v. State-Planters Bank & Trust Co., 166 Va. 158, 184 S.E. 203 (1936)
• Adams v. Seymour, 191 Va. 372, 61 S.E.2d 23 (1950)
• Commonwealth Transp. Comm'r v. Windsor Indus., Inc., 272 Va. 64, 630 S.E.2d 514 (2006)
• Pence v. Tidewater Townsite Corp., 127 Va. 447, 103 S.E. 694 (1920)
• Roadcap v. Rockingham Cnty. Sch. Bd., 194 Va. 201, 72 S.E.2d 250 (1952)
• Copenhaver v. Pendleton, 155 Va. 463, 155 S.E. 802 (1930)
• Epperson v. Epperson, 108 Va. 471, 62 S.E. 344 (1908)
• Peoples Pleasure Park Co. v. Rohleder, 109 Va. 439, 61 S.E. 794 (1908)
• 1977-79 Op. Va. Att'y Gen. No. 61
• 1998 Va. Acts ch. 41
• 2 Thompson on Real Property §§ 20.01 through 20.05 (2004)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-026_Popovich.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

September 20, 2013

Mark C. Popovich, Esquire
County Attorney, County of Isle of Wight
Post Office Box 80
17090 Monument Circle, Suite 128
Isle of Wight, Virginia 23397

Dear Mr. Popovich:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.[1]

Issues Presented

You inquire as to whether the deed by which the Commonwealth of Virginia conveyed Fort Boykin to Isle of Wight County entitles the Commonwealth to reclaim title to the property if the County has failed to maintain and preserve a specific dwelling located thereon in accordance with the requirements of a covenant within the deed. In addition, you inquire whether the deed entitles the Commonwealth to reclaim title to the property as a result of that dwelling having been deemed a total loss as a result of a recent fire.

Response

It is my opinion that the deed obligated Isle of Wight County to maintain and preserve the dwelling in good condition, including to take reasonable measures to protect it from catastrophic loss. It is further my opinion that the county's failure to maintain and preserve the dwelling does not give rise to a right of entry and reverter under the deed, so as to entitle the Commonwealth to reclaim title to the Fort Boykin property.

Background

On August 21, 1974, Sarah Elizabeth Jordan conveyed to the Commonwealth of Virginia, Department of Conservation and Economic Development, Division of Parks (a predecessor agency to the current Department of Conservation and Recreation or "DCR"), some 14.43 acres of real property generally referred to as "Fort Boykin." In accordance with authority granted by the General Assembly, DCR subsequently conveyed the Fort Boykin property by deed to the surrounding locality, Isle of Wight County (the "County").[2]

In your opinion request and the accompanying materials, you relate that the residential dwelling on the property, formerly the home of Sarah Elizabeth Jordan, had fallen into substantial disrepair. As of April 24, 2012, the dwelling suffered from the effects of termite damage, foundation damage due to improperly sized floor joists, and water leakage around windows. Then, on March 20, 2013, an accidental fire severely damaged the dwelling. According to the Fire Scene Examination Report issued by the Virginia State Police, the dwelling suffered such damage that the cost to repair the structure will equal or exceed its value.[3]

Applicable Law and Discussion

DCR conveyed Fort Boykin to the County pursuant to a Deed of Conveyance, dated January 21, 1999. The deed sets forth the obligations of the County and enumerates four distinct covenants "which shall run with the land and be binding upon" the County.[4] One of the four covenants requires that "the existing dwelling or farm house on said property, formerly the home of Sarah Elizabeth Jordan, shall be maintained and preserved in good condition."[5]

Courts will not look beyond the four corners of a deed when the language is clear, unambiguous, and explicit.[6] Consistent with the plain definition of the term, the Supreme Court of Virginia has found the word "maintenance" to mean, "to preserve or to keep 'in a state of repair,' and 'repair' means to fix or 'restore what is torn or broken.'"[7] Moreover, the concomitant obligation to "preserve" may extend to taking reasonable measures to protect an object; a former opinion of this office relied on that word's plain definition to find the imposition of an obligation, "to keep safe from injury, harm, or destruction."[8]

Based upon the facts that you provide, and for the purposes of this opinion, it appears that the County breached the covenant to maintain and preserve the dwelling in good condition when it failed to prevent or repair the damage related to termite infestation, improperly sized floor joists, and water leakage around windows, all of which disrepair was evident in 2012.[9] Because the accidental fire appears to have arisen from an electrical malfunction of undetermined cause, upon the facts provided I cannot herein conclude whether or not the County breached its covenant obligation to take reasonable measures to protect the dwelling from catastrophic loss.

With respect to covenants within the deed, it further contains conditions subsequent, the breach of which trigger a right of DCR, on behalf of the Commonwealth, to take steps to reclaim title to the Fort Boykin property through a right of entry and reverter:

In the event that Fort Boykin, including its breastworks and other remaining physical features, are not properly maintained and preserved as an ancient fort, or in the event that all of said property is not used as a public park or for public park purposes or is not maintained and regularly open for public recreational and park use, then all right, title and interest in and to the said property shall revert to [DCR], which reverter interest shall entitle the Commonwealth to immediate right of entry and control in the event of a breach or violation of any of said conditions.[10]

At common law, as in this deed, a covenant may be coupled with a condition subsequent, and a breach of that condition may enable the grantor to enforce a forfeiture of the grantee's fee simple title.[11] Upon breach, the grantor may choose to enforce the covenant by seeking legal damages or specific performance thereof, or to enforce the condition by seeking forfeiture of the grantee's title.[12] However, when such possibility of reverter exists, it is not self-executing upon breach of the condition subsequent; instead, title to the property remains with the grantee unless and until the grantor takes appropriate action to enforce it through exercising a right of entry in an action of ejectment.[13] Such forfeitures are not favored at common law, and the terms of conditions subsequent "are strictly construed, because they are calculated to defeat a vested estate and give rise to a situation by which the grantor can again obtain the granted property."[14] The intent of the condition subsequent respecting forfeiture must be clear,[15] and "a party who insists upon a forfeiture of an estate for breach of a condition must bring himself clearly within the terms of the condition."[16]

A careful reading of the deed reveals that none of its conditions subsequent relate specifically to the covenant to maintain and preserve in good condition the dwelling on the Fort Boykin property. Instead, by their unambiguous language, those conditions pertain only to the covenants requiring satisfactory maintenance and preservation of the ancient fort and its appurtenances, and the public recreational and park use of the Fort Boykin property as a whole. Therefore, I conclude that the County's apparent breach of the covenant to maintain and preserve the dwelling did not trigger the deed's right of entry and reverter provisions.[17]

Conclusion

Accordingly, it is my opinion that the deed obligated Isle of Wight County to maintain and preserve the dwelling in good condition, including to take reasonable measures to protect it from catastrophic loss. It is further my opinion that the county's failure to maintain and preserve the dwelling does not give rise to a right of entry and reverter under the deed, so as to entitle the Commonwealth to reclaim title to the Fort Boykin property.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] You have made two opinion requests on related topics, and my responses to them are consolidated into this opinion.

[2] See 1998 Va. Acts ch. 41.

[3] The report's narrative attachment concluded that "The area of origin for the fire occurred in the kitchen, around the area of the panel box. This is where the heaviest fire damage was found in the kitchen. A distinct fire pattern was noted on the wall around the panel box. A hole was seen on the wall where the panel box was originally mounted. The interior of the panel box showed signs of arcing to the wiring. The cause of the fire is found to be accidental. The damage surrounding the panel box and the signs of arcing in the panel box show the most probable cause to be an electrical malfunction."

[4] Deed of Conveyance between the Commonwealth of Virginia, Department of Conservation and Recreation, and Isle of Wight County, Instrument #99-5244, recorded Sept. 29, 1999, in the Office of the Circuit Court Clerk, Isle of Wight County, at Page 41.

[5] The covenants require that (1) Fort Boykin, including its breastworks and other remaining physical features, shall be properly maintained and preserved as an ancient fort in keeping with prudent preservation practices for a historic fort of this type; (2) a bronze memorial plaque ... shall be maintained on the grounds of Fort Boykin; (3) the existing dwelling or farm house in said property, formerly the home of Sarah Elizabeth Jordan, shall be maintained and preserved in good condition; and (4) the 14.43 acres of real property herein conveyed, including the Fort, shall be used, properly maintained and regularly kept open to the public at reasonable times and subject to such reasonable rules and regulations, as determined by the Grantee, for recreational and park use. Id.

[6] Forster v. Hall, 265 Va. 293, 301, 576 S.E.2d 746, 750 (2003).

[7] Id.

[8] See 1977-79 Op. Va. Att'y Gen. No. 61, 62 (citing Webster's Seventh Collegiate Dictionary (1972)); see also Merriam-Webster's Collegiate Dictionary 920 (10th ed. 2001), wherein the verb "preserve" is defined as, "to keep safe from injury, harm or destruction: PROTECT ... to keep ... free from decay ... MAINTAIN".

[9] I note that an obligation to maintain a structure generally does not include an obligation to make improvements upon it. See, e.g. Montgomery v. Columbia Knoll Condo. Council, 231 Va. 437, 439, 344 S.E.2d 912, 913 (1986). Nevertheless, the breach of a deed covenant may give rise to an election to claim for legal damages or for specific performance. See Neal v. State-Planters Bank & Trust Co., 166 Va. 158, 164-65, 184 S.E. 203, 205-206 (1936); and see Adams v. Seymour, 191 Va. 372, 61 S.E.2d 23 (1950).

[10] Deed of Conveyance, supra note 4.

[11] Neal, 166 Va. at 164-65, 184 S.E. at 205-206. See also 2 Thompson on Real Property §§ 20.01 through 20.05 (2004).

[12] Id.

[13] Id., and see Commonwealth Transp. Comm'r v. Windsor Indus., Inc., 272 Va. 64, 78-79, 630 S.E.2d 514, 520-21 (2006); and Pence v. Tidewater Townsite Corp., 127 Va. 447, 452-55, 103 S.E. 694, 695-96 (1920). See also Va. Code Ann. § 8.01-131 (2007), et seq. (ejectment).

[14] Roadcap v. Rockingham Cnty. Sch. Bd., 194 Va. 201, 205-207, 72 S.E.2d 250, 253 (1952); and see disc'n Copenhaver v. Pendleton, 155 Va. 463, 477-80, 155 S.E. 802, 806-807 (1930).

[15] Epperson v. Epperson, 108 Va. 471, 475, 62 S.E. 344, 346 (1908).

[16] Peoples Pleasure Park Co. v. Rohleder, 109 Va. 439, 445, 61 S.E. 794, 796 (1908), reh'g denied, 109 Va. 439, 63 S.E. 981 (1909) (citing "Dev. on Deeds, sec. 973 and note").

[17] As discussed above, a breach of the covenant pertaining to the dwelling's proper maintenance and preservation entitled DCR to seek damages at law against the County, however, the structure's total loss by fire of indeterminate cause obviated any putative right to seek specific performance of the covenant's obligations.