Level One Contact, Inc., v. BJL Enterprises, LLC, No. A10A1196 (Ga. App. 2010) considered a commercial lease between Paul Green, as landlord, and, as tenant, Samuel Winters on behalf of Level One Contact, Inc. After execution of the lease, Green conveyed the property to John Lunsford by warranty deed. Lunsford later conveyed the property to BJL Enterprises, LLC, Lunsford’s family business, by a deed that the Court of Appeals variously describes as a warranty deed and a quitclaim deed. After about two years, Level One sold substantially all its business assets to North Star Chemicals, Inc. North Star notified Lunsford that it was vacating the property and terminating the lease. Level One stopped paying rent.

BJL sued Level One and Winters for unpaid rent and for other claims. Level One and Winters responded with multiple counterclaims. A jury found in favor of BJL for, inter alia, past due rent.

On this appeal, Level One and Winters argued that BJL was without standing to enforce the lease because there was no written assignment of the lease from Green to Lunsford or from Lunsford to BJL. The Court of Appeals, while agreeing that BJL’s standing required written assignments, found that the habendum clauses of the two deeds subsumed them. The warranty deed from Green to Lunsford included this language: “To have and to Hold the said described property, with all and singular the rights, members

[and] appurtenances thereof, to the same being, belonging or in anywise appertaining, to the only proper use, benefit and behoof of the said Grantee forever in FEE SIMPLE.” The deed from Lunsford to BJL included the language “with all the rights, members and appurtenances to the said described premises in anywise appertaining or belonging.” The Court, observing that mere conveyances of title would not have been sufficient to show assignments of the lease, determined that the foregoing habendum clauses could be read as lease assignments. The Court somewhat backed into this conclusion: “Level One and Winters do not cite to any case, and we can locate no case, holding that such language in a deed does not constitute an assignment of a lease.”

One school of thought holds that the habendum clause is obsolete and meaningless. For example, Pindar states that ”[the habendum], although it may be impressive to the layman, actually serves no useful purposes and could be omitted entirely.” Hinkel, Pindar’s Georgia Real Estate Law and Procedure, 6th ed., § 19-27. It served a very useful purpose in this case, especially, I’m sure, in the view of the drafters of the deeds. Perhaps we should be more circumspect about discarding what appear to be no more than archaic formalisms.