Commonwealth Transp. v. Windsor Industries

Present: All the Justices

COMMONWEALTH TRANSPORTATION COMMISSIONER
OPINION BY
v. Record No. 051335 JUSTICE LAWRENCE L. KOONTZ, JR.
June 8, 2006
WINDSOR INDUSTRIES, INC.

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge

In this appeal, we consider whether the chancellor

correctly determined in a declaratory judgment action that

property acquired by the Commonwealth of Virginia in 1973 should

be reconveyed by the Commonwealth Transportation Commissioner to

the successor-in-interest of the original owner for the original

purchase price by operation of Code § 33.1-90.1

1
The parties do not dispute that in 1973 the Commonwealth
of Virginia acquired the property in question on behalf of its
agency formerly designated as the Department of Highways and now
designated as the Virginia Department of Transportation. In the
intervening years, the agency and its directing authority have
undergone several changes of designation, though the
responsibilities of each remained essentially unchanged. The
agency is now subject to the direction of the Commonwealth
Transportation Board, which is chaired by the Secretary of
Transportation. Code § 33.1-1. The Commonwealth Transportation
Commissioner is the vice-chair of the Board and the
administrative head of the agency. Id.; Code § 33.1-3. For
clarity in this opinion, we will refer to the Virginia
Department of Transportation as “VDOT” and to the Commonwealth
Transportation Commissioner as “the Commissioner” in accord with
the current designations.

1
 BACKGROUND

The issues raised in this appeal are questions of law

decided by the chancellor on the written record and cross-

motions for summary judgment by the parties, and the facts are

undisputed. Accordingly, we will review the record and consider

the issues de novo. See, e.g., Davenport v. Little-Bowser, 269

Va. 546, 552, 611 S.E.2d 366, 369 (2005); Wilby v. Gostel, 265

Va. 437, 440, 578 S.E.2d 796, 798 (2003); Eure v. Norfolk

Shipbuilding & Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663,

667 (2002).

By a deed dated October 1, 1973 and recorded on November

27, 1973 among the appropriate land records, 1314 West Main

Corporation conveyed to the Commonwealth of Virginia in fee

simple two lots consisting of 1.773 acres, more or less, in

Chesterfield County for $21,000. The property was acquired in

anticipation of its eventual use by VDOT in State Highway

Project 0288-020-101, RW-204, for the construction and

improvement of Route 288, a non-interstate highway. J. Kenneth

Timmons, Jr. (“Timmons”) executed the deed in his capacity as

president of 1314 West Main Corporation.

On March 31, 1977, 1314 West Main Corporation merged with

another entity of which Timmons was also president to become

Windsor Industries, Inc. At that time, Timmons became president

2
of Windsor Industries, as well as its majority stockholder.

Windsor Industries was dissolved by operation of law as of

September 1, 1988 after failing to pay its annual registration

fee to the State Corporation Commission.

In a letter dated September 10, 2002 to David A. Schneider,

the District Right of Way and Utilities Manager for VDOT’s

Richmond District, Timmons sought reconveyance of the 1314 West

Main Corporation property pursuant to Code § 33.1-90. In that

letter, Timmons stated that “[a]bout 3 years ago I contacted

[VDOT] and asked them to consider conveying the lots to me for

the consideration that I received in 1973. I was told that the

lots would be used temporarily for the construction office for

the contractor doing work on Route 711.” Noting that “[t]he

work on [Route] 711 seems to be completed,” Timmons requested

that VDOT reconvey these lots to him for the consideration of

$21,000.

After an unexplained delay of over a year, Schneider

responded to Timmons in a letter dated November 21, 2003.

Noting that “Windsor Industries, Inc., the successor to 1314

West Main Corporation, was dissolved as of September 1, 1988,”

Schneider maintained that “[t]he ability of Windsor to demand

reconveyance under the law did not arise until twenty years

after the acquisition. This would have been November 27, 1993,

3
at the latest.” Schneider further maintained that “[a]t that

time Windsor Industries had been dissolved and its right to

request restoration had expired.” Schneider advised Timmons

that “because the property is suitable for independent

development, VDOT will offer the property for sale to the public

at its current fair market value.”

On January 7, 2004, counsel for Timmons wrote to Schneider

contesting Schneider’s determination that the dissolution of

Windsor Industries “extinguished” the right to seek reconveyance

of the 1314 West Main Corporation property under Code § 33.1-90.

Rather, counsel contended that Timmons, as the sole director of

the dissolved corporation, had the authority under Code § 13.1-

745 to control the assets of the dissolved corporation and “to

pursue remedies which existed prior to [the corporation’s]

termination” including the ability “to convey property which has

been overlooked or not conveyed for some reason in a

liquidation.”

Subsequently, Timmons and his counsel met with Schneider

and another VDOT employee to discuss the matter. Following that

meeting, Timmons’ counsel by a letter dated July 6, 2004

reiterated “some of the points that were made at” the meeting.

It was Timmons’ position that Code § 33.1-90, as in effect when

the property was conveyed in 1973, permitted the successor or

4
assignee of 1314 West Main Corporation to seek reconveyance of

the property and that the statute placed no time limit on when

the seller is required to demand that reconveyance.

On July 14, 2004, VDOT advised Timmons’ counsel that one of

the two lots previously conveyed to the Commonwealth by 1314

West Main Corporation would be offered for sale by sealed bid on

August 2, 2004. VDOT provided Timmons’ counsel with a copy of

the public notice of the sale and the necessary forms to permit

Timmons to submit a bid for the lot.

On July 22, 2004, Timmons’ counsel filed in the trial court

a motion for declaratory judgment on behalf of Windsor

Industries, “a Virginia corporation in dissolution, proceeding

under Section 13.1-745 of the Code of Virginia (as amended),

successor in title and interest to 1314 West Main Corporation,”

against the Commissioner. Windsor Industries sought a

determination that it was entitled to reconveyance of the 1314

West Main Corporation property under Code § 33.1-90. Pending

resolution of that matter, Windsor Industries also sought a

temporary restraining order barring the Commissioner from going

forward with the planned sale on August 2, 2004.

Following a hearing on Windsor Industries’ request for a

temporary restraining order and over the Commissioner’s

objection, the chancellor granted Windsor Industries the

5
requested injunction. VDOT thereafter complied with the

injunction order and also halted the planned sale of the second

lot previously owned by 1314 West Main Corporation pending the

outcome of the declaratory judgment action.2

In his answer to the motion for declaratory judgment, the

Commissioner asserted a plethora of legal and equitable theories

under which he contended Windsor Industries should be barred

from seeking reconveyance of the 1314 West Main Corporation

property. Ultimately, Windsor Industries and the Commissioner

filed cross-motions for summary judgment supported by memoranda

of law.

The chancellor heard oral argument from the parties and

took the matter under advisement. On February 3, 2005, the

chancellor issued an opinion letter stating that “[a]ccording to

the parties there are four issues to be determined by the

[c]ourt.” The chancellor summarized those issues as follows:

(1) What is the nature of the inchoate statutory
benefit [of Code § 33.1-90]? (2) Was it possible for
Windsor Industries, Inc. (“Windsor”), a subsequent
corporation, to obtain the reconveyance opportunity?

2
While the precise status of the second lot is not
established in the record before us, the motion for declaratory
judgment clearly referenced the entire parcel of land acquired
by the Commonwealth under the 1973 deed, and the Commissioner
does not contend that the chancellor’s judgment was limited in
its effect to only one lot in that parcel. Accordingly, our
reference herein to the 1314 West Main Corporation property is
intended to include the entire parcel consisting of two lots.
6
 (3) When did the reconveyance opportunity come into
existence, if at all? (4) Has Windsor waited too long
in making its demand upon the Commonwealth?

The chancellor initially concluded that, pursuant to Code

§ 13.1-745(B), a dissolved corporation such as Windsor

Industries “retains its directors as trustees of corporate

assets by operation of law.” The chancellor further concluded

that “Mr. Timmons fits this definition and is thus a proper

party to make written demand for reconveyance on the

Commonwealth.”

The chancellor then addressed the respective positions of

the parties, considering first what result would obtain if Code

§ 33.1-90 created a property right in the form of a possibility

of reverter, as Windsor Industries contended, and then the

result which would obtain under the Commissioner’s contention

that the statute created only “a legislative gratuity that could

be withdrawn or redistributed at any time without creating a

constitutional issue.” The chancellor opined that although a

possibility of reverter is not a vested property right, it is a

property right subject to vesting and, therefore, cannot be

subsequently modified by statutory amendment. Thus, the

chancellor, citing Code § 1-16 and Citizens Mutual Building

Association v. Edwards, 167 Va. 399, 404, 189 S.E. 453, 455

(1937), opined that if Windsor Industries, as the successor of

7
1314 West Main Corporation, received a possibility of reverter

under Code § 33.1-90, the contingencies for reversion and the

vesting of the right to reconveyance of the property were

established by the version of the statute as it was in force at

the time of the original transfer of the property in 1973.

Under this reasoning, the chancellor concluded that Windsor

Industries’ “right to make demand on the Commonwealth would have

commenced in 1984 [prior to the corporation’s dissolution in

1988]” and Windsor Industries “would have a successful claim,

subject to the issue of the timeliness” of its claim.

The chancellor then considered what effect the statute

would have if it provided only a “legislative gratuity.” The

chancellor noted that “[t]his argument is primarily based on

federal case law arising from other states, and the [c]ourt is

not convinced that such a concept is the law of this

Commonwealth.” See, e.g., Harrison v. Phillips, 185 F. Supp.

204, 207 (S.D. Tex. 1960). Nonetheless, the chancellor

concluded that even by accepting the Commissioner’s contention,

Windsor Industries would still be entitled to seek reconveyance

of the property in question because the various versions of the

statute resulting from subsequent amendments of Code § 33.1-90

never expressly limited or withdrew the contingent right of the

original property owner for reconveyance, and the current

8
version provides for specific time periods in which the demand

for reconveyance must be made. The chancellor noted that one of

those time periods is “within thirty days from publication in a

newspaper” of VDOT’s notice of intent to offer the property for

sale to the public. The chancellor opined that Timmons’

original written demand on VDOT, which the chancellor concluded

had resulted in the Commissioner’s decision to offer the

property in question for sale, and the filing of the declaratory

judgment action within 30 days of the Commissioner’s notice of

the intent to sell, “equate to substantial compliance with [Code

§ 33.1-90].”

The chancellor did not expressly decide whether Windsor

Industries’ authority to seek reconveyance was premised upon a

property right in the form of a possibility of reverter or a

mere statutory gratuity. Rather, the chancellor determined that

under either rationale the demand for reconveyance made in 2002

was not barred by the express terms of any version of Code

§ 33.1-90.

The chancellor then considered the Commissioner’s

assertions that Windsor Industries’ demand for reconveyance was

untimely. The chancellor first concluded that the former one-

year limitation of Code § 8.01-248, which the Commissioner

relied upon, did not apply to a claim involving real property.

9
Gilley v. Nidermaier, 176 Va. 32, 41, 10 S.E.2d 484, 488 (1940).

Additionally, the chancellor opined that “[t]here is no statute

of limitations that is applicable to the right to demand

reconveyance under § 33.1-90.” The chancellor further concluded

that laches could not apply to the claim for reconveyance

because despite “a substantial delay in the exercise of the

reconveyance opportunity . . . the Commissioner has simply not

been prejudiced by this delay.” Thus, the chancellor concluded

that under any version of Code § 33.1-90, the demand for

reconveyance in this case was not untimely or barred by laches.

The Commissioner filed a motion for reconsideration. After

receiving briefs from both parties, the chancellor advised the

parties in a letter dated March 17, 2005 that he remained of

opinion that Windsor Industries was entitled to reconveyance of

the property. In a final decree dated March 30, 2005,

incorporating by reference the rationale stated in the prior

opinion letters, the chancellor entered judgment for Windsor

Industries. The final decree expressly directed that “upon

payment to the Commonwealth Transportation Commissioner of the

original purchase price, with no interest, the Commissioner

shall forthwith re-convey to [Windsor Industries], or its

assigns, by appropriate deed, the [1314 West Main Corporation]

property.” We awarded the Commissioner this appeal.

10
 DISCUSSION

Initially, we note that although the 1973 deed by which the

Commissioner obtained the property in question on behalf of the

Commonwealth did not reference Code § 33.1-90, the Commissioner

does not dispute that the acquisition of the property was

consummated subject to the provisions of that statute. We also

note that this deed did not create a true reversion or vested

property right in favor of the grantor, 1314 West Main

Corporation, at that time.

While the chancellor concluded that it was unnecessary to

determine “the specific nature of the inchoate statutory

benefit” created by Code § 33.1-90, the resolution of this issue

is central to our analysis in this appeal. Thus, we begin our

analysis by determining what right or interest, if any, the

General Assembly intended to give a property owner by providing

for the possible reconveyance of property acquired by the

Commissioner in 1973 pursuant to Code § 33.1-90.

On brief, the Commissioner appropriately describes the

purchase of the 1314 West Main Corporation property as an

“advanced acquisition.” This term is not defined in the Code of

Virginia. However, there can be no doubt that such an

acquisition of real property by the Commissioner is advantageous

to the Commonwealth by facilitating the timely and economical

11
acquisition of real property for transportation construction or

improvement which the Commissioner anticipates will be needed in

the future. Advance acquisitions of property for transportation

projects by the Commissioner are the subject matter of Code

§ 33.1-90, which in 1973 and in its current version provide that

the Commissioner determine in advance of acquisition that the

property will be required for construction of a transportation

project that does not involve the Interstate Highway System,

such as the present case, within 10 years of his determination.

At the time the Commissioner acquired the property in

question, Code § 33.1-90 provided, in pertinent part, with

regard to the property owner that:

In the event that the highway project . . .
contemplated has not been let to contract or
construction commenced within a period of . . . eleven
years . . . from the date of the acquisition of such
property, upon written demand of the owner or owners,
their heirs, or assigns, such property shall be re-
conveyed by the Commonwealth of Virginia to such owner
or owners, their heirs or assigns, upon repayment of
the original purchase price, without interest.

Former Code § 33.1-90 (Supp. 1973).

The Commissioner maintains that this provision of Code

§ 33.1-90 creates merely “an inchoate statutory right,” which he

says “is analogous to the inchoate dower right” once provided

for by statute. Like rights of dower, the Commissioner

maintains that the right granted to the landowner by Code

12
§ 33.1-90 is a “statutory gratuity” subject to alteration or

revocation by the General Assembly. Upon this premise, the

Commissioner contends that at the time it sold the property in

question to the Commonwealth, 1314 West Main Corporation

retained no right or estate in the property. Accordingly, the

Commissioner further contends that Windsor Industries, as

successor in interest to 1314 West Main Corporation, could not

acquire the right to exercise the “statutory gratuity” granted

by Code § 33.1-90, because that right had not yet accrued at the

time Windsor Industries was dissolved as a corporation.

In contrast, Windsor Industries contends that Code § 33.1-

90, as it was in effect at the time the property was conveyed to

the Commonwealth in 1973, created a property right in the form

of a “possibility of reverter.” As a property right, the

possibility of reverter was assignable as part of the assets of

1314 West Main Corporation when that entity merged with another

to create Windsor Industries and, thus, was an asset of Windsor

Industries at the time of its dissolution. Accordingly, Windsor

Industries contends that Timmons, as the principal officer and

majority stockholder of Windsor Industries, was empowered as a

trustee of the dissolved corporation to exercise the possibility

of reverter if and when it accrued.

13
 “ ‘A possibility of reverter . . . is not an estate,

present or future, but a possibility of having an estate.’ ”

Sanford v. Sims, 192 Va. 644, 648, 66 S.E.2d 495, 497 (1951)

(quoting Copenhaver v. Pendleton, 155 Va. 463, 479, 155 S.E.

802, 806 (1930)). “ ‘In the case of a fee limited upon a

condition subsequent [a possibility of reverter] is a contingent

right of re-entry upon condition broken.’ ”3 Id.

The 1973 version of Code § 33.1-90 expressly provided the

conditions subsequent or contingencies which limited the fee

simple ownership obtained by the Commonwealth in the property in

question. As material to the present case, those contingencies

were that the anticipated highway project not be let to contract

or construction commenced within a period of 11 years from the

date of the acquisition of the property by the Commonwealth.

Upon the occurrence of either contingency, the statute

authorized the original owner, or its assigns, to demand

3
A possibility of reverter may also arise where a grant or
devise creates a “qualified fee limited to determine upon a
contingency which may never happen.” In such a case, the
occurrence of the contingency results in the immediate revesting
of the fee. The person entitled to the fee does not have to
make a re-entry. Copenhaver, 155 Va. at 479, 155 S.E. at 806.
As will become apparent, here we are not concerned with this
form of a possibility of reverter because the statute clearly
requires affirmative action in the form of a written demand on
the part of one claiming the right to enforce a breach of a
condition subsequent.

14
reconveyance of the property by the Commonwealth. Upon a

written demand, the statute provided that the property “shall be

reconveyed.” These provisions of the statute clearly evince the

intent of the General Assembly to grant a landowner more than a

mere “statutory gratuity.” Rather, we are of opinion that the

General Assembly intended to grant the property owner a

contingent right to reconveyance of the property acquired by the

Commonwealth in anticipation of its need for a public highway

project if the property so acquired is not ultimately used for

that purpose within 11 years. Accordingly, we hold that upon

conveying its property to the Commonwealth on October 1, 1973,

1314 West Main Corporation was granted an interest in that

property in the form of a possibility of reverter pursuant to

Code § 33.1-90.

However, a possibility of a reverter, while an interest in

real property, does not accrue into an enforceable right to

reconveyance until the contingencies for the forfeiture of the

fee occur. See Copenhaver, 155 Va. at 478, 155 S.E. at 806.

Thus, at the time of the 1973 conveyance, 1314 West Main

Corporation had “only a bare possibility that the land [would]

return to [it], upon the happening or failure to happen of the

various contingencies upon which the estate granted [depended].

The interest of the grantor [was] purely contingent.” Id.

15
(quoting 1 Frederick D.G. Ribble, Minor on Real Property § 780,

at 1012-14 (2d ed. 1928)) (emphasis in original). Accordingly,

we now consider whether 1314 West Main Corporation’s possibility

of reverter ripened into an enforceable right to reconveyance

and, if so, when that occurred. Sanford is particularly

instructive on this point.

Where there is a breach of a condition subsequent
upon which the possibility of reverter depends, the
estate vested in the grantee does not cease in him and
revest ipso facto in the grantor or his successors,
but remains unimpaired in the grantee or his
successors until entry, or its equivalent, by the
grantor or his successors; for the right to enforce
the forfeiture may be waived, and the law, favoring
the vested estate, will not permit its destruction
until the right to forfeit has been exercised.

Sanford, 192 Va. at 649, 66 S.E.2d at 497; see also Copenhaver,

155 Va. at 479, 155 S.E. at 806.

In this case, as we have noted, the possibility of reverter

was granted by Code § 33.1-90 rather than by the terms of the

1973 deed conveying the property to the Commonwealth. In

addition to the contingencies upon which the possibility of

reverter depended in order to accrue into an enforceable right,

the statute established the procedures for the property owner to

exercise that right. In this context, the statute is broad in

scope. Thus, we are of opinion that until the possibility of

having an estate in the property vested into an enforceable

right, the contingencies upon which it depended and the
16
procedures for exercising the right accrued remained subject to

modification by future amendment. Such modification includes

extending the period of time before the right could accrue and

also establishing periods of limitation on enforcing the right,

so long as such amendment did not fully extinguish the former

owner’s possibility of reverter. See, e.g., Haas v. Lee, 263

Va. 273, 276, 560 S.E.2d 256, 257-58 (2002) (holding that

“matters of procedure, such as statutes of limitations, may be

altered or curtailed by the legislature if a reasonable

opportunity and time are afforded to enforce and protect any

interests and rights, provided vested interests and contractual

rights are neither impaired nor destroyed”); see also Board of

Supervisors v. FCS Bldg. Ass’n, 254 Va. 464, 467, 492 S.E.2d

634, 636 (1997); Harris v. DiMattina, 250 Va. 306, 313, 462

S.E.2d 338, 341 (1995); Buenson Div., Aeronca, Inc. v. McCauley,

221 Va. 430, 432, 270 S.E.2d 734, 735-36 (1980).

Prior to 1314 West Main Corporation’s possibility of

reverter ripening into an accrued right, in 1983 the General

Assembly amended Code § 33.1-90. 1983 Acts ch. 146.4 In

4
Code § 33.1-90 has been amended a number of times since
1983, but generally those amendments are not material to the
issues presented in this appeal. Accordingly, we will only
reference those amendments that are germane to our analysis
without addressing the full provisions of those amendments. See
17
pertinent part, the 1983 amendment changed the time for letting

the transportation project to contract or commencing

construction on the property from 11 to 20 years. Id. The

Commissioner does not dispute that in the 20 years following its

acquisition, the 1314 West Main Corporation property had not

been permanently utilized in a project for the construction or

improvement of Route 288.5 Thus, the first date on which 1314

West Main Corporation or its successor potentially could have

obtained the right to demand reconveyance would have been

October 1, 1993, rather than in 1984.

As the quoted passage from Sanford, supra, makes clear,

however, when there has been an actual breach of a condition

subsequent upon which a possibility of reverter depends, as in

this case, the fee vested in the Commonwealth by the 1973 deed

did not automatically revest in the original grantor or its

successor. Rather, the original grantor, or its successor, was

required to make “entry, or its equivalent” to exercise the

right to reconveyance. The landowner does so by “written

1988 Acts. ch. 80, 1992 Acts ch. 108, 1998 Acts ch. 426, and
2000 Acts ch. 898.
5
The record suggests that the property was used for
subsidiary support for this and other road improvement projects
over the years, but that no permanent improvements were made on
the property itself.

18
demand” pursuant to the provisions of Code § 33.1-90.

Significantly, the 1973 and 1983 versions of the statute placed

no time limitation within which the demand was required to be

made. No written demand for reconveyance was made until at

least 1999, when Timmons made his first inquiry to VDOT

concerning the property. Thus, before that date, the

Commonwealth remained vested with title to the property, and the

contingencies and procedures for making the demand for

reconveyance remained subject to change by amendment of Code

§ 33.1-90.

In 1997, the General Assembly extensively revised

Code § 33.1-90 and significantly altered the procedures under

which a former owner of property acquired by the Commonwealth

could demand reconveyance of that property. 1997 Acts ch. 93.

As relevant to this case, Code § 33.1-90 was amended to provide

that:

If the transportation project contemplated . . . has
not been let to contract or construction commenced
within a period of twenty years from the date of the
acquisition of such property and a need for the use of
such property has not been determined for any
alternative transportation project, upon written
demand of the owner or owners, their heirs or assigns,
received within ninety days from the expiration of
such twenty-year period . . . or within thirty days
from publication in a newspaper of general circulation
in the political subdivision in which the property is
located of a notice of the Commissioner’s intent to
dispose of such property and [the Commissioner] shall
notify to the extent practical, the last known
19
 owner(s) of said property by certified mail, such
property shall be reconveyed by the Commonwealth of
Virginia to such owner or owners, their heirs or
assigns, upon repayment of the original purchase
price, without interest. Unless the reconveyance is
concluded no later than six months from the receipt by
the Commissioner of a written demand, the reconveyance
opportunity shall lapse.

(Emphasis added.)

In addition to altering the contingency upon which the

possibility of reverter depended so as to permit the

Commissioner to assess the property for use in an alternative

transportation project, the clear import of this change in the

law was to provide for specific time periods in which the

written demand for reconveyance is required to be made upon the

occurrence of one or more of the contingencies and to require

any such reconveyance to occur in a timely manner. The

provisions of the statute accomplish this in principal part by

requiring the Commissioner, upon determining that the property

acquired pursuant to the statute is not needed for a

transportation project and will be offered for sale to the

public, to give notice of that intended sale, and to make a bona

fide effort to locate the original owner or his heirs or

assigns, who would then be required by written demand to seek

reconveyance of the property within 30 days of that notice. As

the chancellor correctly noted, this notice requirement and the

corresponding requirement that the written demand be made within
20
30 days thereafter are stated in the disjunctive and, thus, are

not dependant upon a prior timely demand having been made by the

former owner within 90 days from the expiration of the 20 year

designated timeframe.

The provisions in the 1997 amendment to Code § 33.1-90 were

clearly intended to provide certainty in the disposition of

property acquired by the Commissioner for anticipated

transportation projects, while allowing sufficient time and

opportunity for VDOT to use the property so acquired to the best

interest of the public. The salutary function of the amendment

is to make certain that, to the extent practicable, property

acquired by “advance acquisition” but not ultimately used for

any public transportation project should be reconveyed to the

original owner, provided the owner can be found and desires to

recover it for the original purchase price. As pertinent to the

present case, the provisions of the 1997 version of Code § 33.1-

90 became applicable to the determination of when the

possibility of reverter under consideration ripened into an

enforceable right to reconveyance. This is so because the prior

versions of the statute placed no time limitation within which

the landowner was required to make a written demand for

reconveyance and, thus, avoid a waiver of the right to enforce

the forfeiture.

21
 In determining when the possibility of reverter granted by

Code § 33.1-90 ripens or accrues into an enforceable right to

reconveyance, the comprehensive structure of the statute is

significant. As amended in 1997, the statute provides not only

the contingencies upon which this property right depends, but

also the method and time limitations for exercising that

contingent right in the event of the occurrence, or breach, of

those contingencies. The statute necessarily permits the

Commissioner to refuse a written demand for reconveyance made

within 90 days from the expiration of the 20-year period when

the Commissioner has determined a need to use the property for

any “alternative transportation project.” Implicit in the

statute’s requirement that the original property owner make a

written demand is that the right to enforce reconveyance accrues

when and if the demand is refused by the Commissioner without

proper justification. In the absence of a written demand and

refusal by the Commissioner following expiration of the 20-year

period, the statute permits the original property owner to make

a written demand for reconveyance within 30 days from the

publication of the Commissioner’s intent to dispose of the

property to the public. Without question, that publication

invokes the statute’s requirement that the owner make a written

demand to enforce its then accrued right to reconveyance within

22
30 days of that publication in order to avoid a waiver of that

right.

In the present case, the property in question was not let

to contract or had construction commenced on it within 20 years

of its acquisition. Assuming that the inquiry made in 1999 and

alluded to in Timmons’ September 10, 2002 letter, was a demand

for reconveyance, it was not made within the 90 day requirement

of the statute as in effect on that date. Moreover, because it

would appear that the Commissioner had determined that the

property was amenable for use in an “alternative transportation

project” for construction work on Route 711, even if the demand

had been timely, the Commissioner was statutorily authorized to

retain the property and refuse the demand.

However, when the Commissioner subsequently determined that

the property was no longer needed for any alternative

transportation project and that it would be offered for sale to

the public, the possibility of reverter vested into an

enforceable right, and the alternative procedure for exercising

that right pursuant to Code § 33.1-90 as in effect at that time

became operative. We agree with the chancellor that the

publication of notice of the intent to sell triggered the 30 day

time period in which 1314 West Main Corporation or its successor

could again demand reconveyance of the property at its original

23
price.6 We further agree that the initiation of the declaratory

judgment action within 30 days of that notice constituted

substantial compliance with the requirement for a written demand

for reconveyance. Accordingly, we hold that the terms of Code

§ 33.1-90 for reconveyance of the property to its original

owner, or its assigns, have been met.

The Commissioner contends, however, that even if Code

§ 33.1-90 provides the original owner of property acquired by

the Commissioner with a continuing property interest in the form

of a possibility of reverter, Windsor Industries never acquired

that interest. Because that interest could not accrue into an

enforceable right to reconveyance before October 1, 1993, the

Commissioner contends that there was no vested property right

for 1314 West Main Corporation to assign to Windsor Industries

in 1977 when the later entity was created and received the

assets of the former. We disagree.

While a possibility of reverter is not a vested interest in

real property, it is a property interest. Although

6
While the record contains a copy of the public notice of
sale, it does not contain a certification that this notice was
published in a newspaper of general circulation as required by
the statute. However, we will assume that such is the case
because we will not presume that the Commissioner would have
intended to proceed with the sale of the property in question on
August 2, 2004 without fully complying with the notice
requirements of the statute.
24
possibilities of reverter were inalienable at common law, they

are alienable by both deed and will under the provisions of Code

§§ 55-6 and 64.1-46. See Sanford, 192 Va. at 648, 66 S.E.2d at

497; Copenhaver, 155 Va. at 496, 155 S.E. at 812. Accordingly,

though not yet an accrued right of re-entry, the possibility of

reverter of the 1314 West Main Corporation property was an

alienable property interest, which Windsor Industries acquired

when the former entity was merged into the latter.

The Commissioner further contends that a dissolved

corporation cannot seek to enforce a right that accrues after

its dissolution. Again, we disagree.

While it is true that a corporation in dissolution cannot

“carry on any business except that appropriate to wind up and

liquidate its business and affairs,” it nevertheless “continues

its corporate existence” and the trustees of the dissolved

corporation are nonetheless required to collect and account for

the corporation’s assets. Code § 13.1-745(A). Moreover, until

the winding up of affairs of the corporation are concluded, the

fact of dissolution does not “[p]revent commencement of a

proceeding by or against the corporation in its corporate name.”

Code § 13.1-745(B).

In this case, the possibility of reverter was a property

interest of Windsor Industries and, thus, was an asset of the

25
corporation at the time of its dissolution. The duty of

Timmons, as the principal stockholder and chief executive

officer of the corporation, was to act as a trustee in

dissolution and secure that asset for proper distribution to the

dissolved corporation’s creditors and/or stockholders. See,

e.g., Craddock-Terry Co. v. Powell, 181 Va. 417, 451, 25 S.E.2d

363, 377 (1943) (holding that “[o]n dissolution, the board of

directors of a corporation . . . holds the assets as a trustee

to be paid or distributed to . . . stockholders”). The fact

that the possibility of reverter had not accrued into an

enforceable right to reconveyance of the property in question at

that time is not relevant. Accordingly, we hold that Timmons,

as trustee of the assets of the dissolved Windsor Industries,

was the proper party to make demand on the Commissioner for

reconveyance of the 1314 West Main Corporation property and the

subsequent declaratory judgment action was properly filed in the

name of Windsor Industries pursuant to Code § 13.1-745.

Finally, we turn to consider the Commissioner’s remaining

assertion that Windsor Industries’ claim for reconveyance is

time-barred either by operation of Code § 8.01-248, Code § 8.01-

246(4), or upon the application of the doctrine of laches. The

Commissioner’s reliance upon these statutes is misplaced; nor do

we agree with the assertion that in the absence of their

26
applicability there is no statute of limitations that is

applicable to the right to demand reconveyance under Code

§ 33.1-90.

Although not mentioned by the Commissioner, we take this

opportunity to note that Code § 8.01-255.1, among other things,

applies to actions for re-entry on land by reason of a breach of

a condition subsequent and imposes a limitation of 10 years for

the action to be commenced or entry to be made from the time the

breach of the condition occurs. Beyond question, this statute

is applicable to a possibility of reverter such as, for example,

one created by the provisions of a particular deed. However, in

the case of a possibility of reverter granted to the landowner

under the provisions of Code § 33.1-90, the provisions of Code

§ 8.01-255.1 are superseded by the more specific time

limitations provided in Code § 33.1-90. The same rationale

disposes of the Commissioner’s reliance upon Code §§ 8.01-248

and -246(4). Our determination that Windsor Industries’ demand

for reconveyance, in the form of the motion for declaratory

judgment, was timely under the 30 day requirement of Code

§ 33.1-90 results from the comprehensive and broad scope of the

statute which in effect contains its own statute of limitations.

Similarly, the Commissioner’s argument concerning the

equitable doctrine of laches is misplaced. Although this case

27
was brought as a chancery action for declaratory judgment, as in

Sanford, the “remedy for enforcing the forfeiture is purely

legal.” Id. at 649, 66 S.E.2d at 498. As was made clear in

Sanford, where an action brought in equity is subject to a legal

remedy, although the chancellor retains jurisdiction and can

administer complete relief, “equity will respect the applicable

statute of limitation[s].” Id.; see also Kappa Sigma

Fraternity, Inc. v. Kappa Sigma Fraternity, 266 Va. 455, 467,

587 S.E.2d 701, 708 (2003); Belcher v. Kirkwood, 238 Va. 430,

433, 383 S.E.2d 729, 731 (1989).

CONCLUSION

For these reasons, we hold that the chancellor did not err

in concluding that Windsor Industries was entitled to the

reconveyance of the 1314 West Main Corporation property.

Accordingly, we will affirm the judgment below requiring the

Commissioner to convey the property to Windsor Industries, or

its assigns, upon payment of the original purchase price of

$21,000, with no interest.

Affirmed.

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