5.24 Exceptions And Reservations

5.24.1

In General

Deeds may contain exceptions and reservations. They both have in common the fact that each diminishes the interest a grantee would have otherwise taken under the deed in which they may appear.

Occasionally, deeds reflect the erroneous draftsmanship practice of equating exceptions with reservations.

5.24.2

Exceptions

An exception in a deed has the purpose of eliminating or excepting out of the grant a part of the property or thing granted which:

  • Then remains in the grantor; or,
  • Was previously granted by the grantor to another; or,
  • Was never owned by the grantor.

Example:

A conveys to B: Lot 1, Block 1, Blackacres, a subdivision in ___________, except the north 50 feet thereof.

In this situation, the portion excepted from the conveyance (the north 50 feet of lot 1) has not passed to B.

5.24.3

Reservations

A reservation in a deed has the purpose to create a right for the benefit of the grantor in the property granted which did not exist prior to the reservation as a separate and distinct right.

In a reservation, nothing is withheld or excepted from the grant, but the grantor retains in the grantor's name a new right to the property which would otherwise pass by the grant.

Example:

A conveys to B: Lot 1, Block 1, Blackacres, a subdivision in ________________.

  • Reserving to the grantor, the grantor's heirs and assigns forever, an easement for a road and right-of-way twenty feet in width along the west line of said parcel of land for its full length; or,

  • Reserving in a life estate in this property, in favor of B , the grantor herein, during his life; or,

  • Reserving one-half of the oil, gas, and other minerals on the subject property.

5.24.4

Reservation In Favor Of Stranger Or Spouse Not In The Record Chain Of Title

Deeds may be encountered in which a reservation is made in favor of a stranger not appearing in the record chain of title. Some courts have held that such a reservation creates no interest in favor of the stranger or spouse and such a deed should not be relied upon for the purpose of insuring title. On the other hand, exception in the commitment and policy must be made as to any such reservation.

5.24.5

Exceptions And Reservations As Exceptions

Recitals in deeds creating reservations or exceptions of whatever nature or conditions must be shown as proper title exceptions either within the legal description (some excepted parts of the property) or as part of the commitments or policies, unless these matters are properly disposed of record.

Title exceptions should not be eliminated on reliance of the possible illegality of reservations in favor of strangers or spouses not in the record chain of title.

5.24.6

Insurance Of Reservations

Please refer to Easements (5.00) and Life Estates (11.20).