Seyfarth Synopsis: The Supreme Court of Virginia issued a unanimous opinion recently holding a 15-year commercial lease unenforceable since it was not executed with the formalities of a deed as required under Virginia law. In overturning the lower court’s ruling in The Game Place, L.L.C., et al. v. Fredericksburg 35, LLC, 813 S.E.2d 312 (Va. 2018), the Court held that, due to the fact that the lease was for more than five (5) years and did not contain a seal nor did it comply with any statutory seal substitutes, the lease was unenforceable with respect to the claims that the landlord brought. The Court held that the lease violated the Statute of Conveyances that requires that any lease for a term of more than five (5) years must be accomplished by will or deed and satisfy certain technical requirements.

Facts of the Case

The case stemmed from a dispute in which Fredericksburg 35, LLC (“Fredericksburg”), a commercial landlord, sued its tenant, The Game Place, L.LC. (“Game Place”) and its guarantor, after Game Place vacated the premises it was leasing from Fredericksburg prior to the expiration of the 15-year term and terminated what Game Place referred to as its “month-to-month periodic tenancy.” At the time Game Place terminated, it was current on its rent. Fredericksburg sued Game Place for unpaid rent that accrued after Game Place vacated the premises. Game Place argued that its lease was unenforceable under the Statute of Conveyances (Section 55-2 of the Code of Virginia) because it was not in the form of a deed, containing the common law requirements of a seal or a seal substitute available under Section 11-3 of the Code of Virginia.


Applicable Law

Section 55-2 of the Code of Virginia, also known as the Statute of Conveyances, provides in pertinent part “[n]o estate of inheritance or freehold or for a term of more than five years in lands shall be conveyed unless by deed or will…”

Pursuant to Section 11-3 of the Code of Virginia, there are several seal substitutes that are alternatives to a seal that will make a written instrument a “deed”: (1) a “scroll by way of a seal”; (2) an imprint or stamp of a “corporate or an official seal”; (3) the use in the body of the document of the words “this deed” or “this indenture,” or other words importing a sealed instrument or recognizing a seal; and (4) a proper acknowledgement “by an officer authorized to take acknowledgments of deeds.”

Court Ruling

The lease at...