HERNDON, VA — A Fairfax County judge ruled that the Town of Herndon is not entitled to reclaim nearly five acres of downtown property from Comstock, finding that a right of re-entry contained in earlier development agreements did not survive the deed that transferred the land to the developer.
Fairfax County Circuit Court Judge Tania M.L. Saylor granted Comstock Herndon Venture LC's motion for summary judgment and denied Herndon's competing motion in a Sept. 17 opinion letter obtained by Patch.
The ruling turns largely on a critical difference between the deed the parties originally contemplated and the deed they ultimately signed in December 2020: The final deed did not contain the right-of-re-entry language that Herndon later sought to enforce.
"For the reasons stated herein, the Court finds that the Comprehensive Agreement and Amendment were not collateral, were extinguished upon execution of the Deed, and therefore Herndon is not entitled to a reconveyance of the Property," Saylor wrote.
Herndon selected Comstock as its development partner and entered into a comprehensive agreement with the company in November 2017 for redevelopment of the town-owned downtown property.
Plans called for a multilevel town center with 280 residential units, street-level retail, a 763-space parking garage, pedestrian plazas and an 18,000-square-foot arts center.
RELATED: Herndon Sues Comstock Holdings To Regain Downtown Property
The parties amended their agreement in December 2020, allowing Herndon to transfer the undeveloped property to Comstock before all conditions for closing had been satisfied.
That amendment also allowed Comstock to issue a "Notice Not to Proceed" and said Herndon would then have the right of re-entry described in a form deed attached to the original comprehensive agreement.
But Saylor found that the special warranty deed actually used to convey the property to Comstock on Dec. 14, 2020, was not the same form deed.
The executed deed did not include the right-of-re-entry provision from the proposed deed and did not incorporate that right by reference, according to the opinion.
Although the final deed mentioned the comprehensive agreement and amendment in introductory clauses, Saylor concluded those references were insufficient to preserve Herndon's right to reclaim the property.
Saylor based her decision on Virginia's "merger doctrine," under which a deed generally becomes the final expression of a real estate transaction and conflicting provisions of an earlier contract are extinguished.
The judge found the deed and the earlier agreements to be in "patent and irreconcilable conflict" on possession of the property.
"Herndon's failure to utilize the form deed attached as Exhibit C to the Comprehensive Agreement or one like it, is fatal to Herndon's position," Saylor wrote.
Saylor also rejected the argument that the earlier comprehensive agreement and amendment survived as separate, or "collateral," agreements. Although they addressed matters beyond the deed, she found they affected title to the property and conflicted with the final deed.
Comstock issued its Notice Not to Proceed on Dec. 6, 2024, following several extensions of the development timetable.
Herndon responded Jan. 23, 2025, by exercising what it believed was its contractual right of re-entry and demanding that Comstock return the property.
Comstock refused, and Herndon sued July 11, 2025.
The town's complaint sought an order compelling Comstock to return the property. Herndon also originally sought a declaration that it did not have to reimburse Comstock for predevelopment expenses, although the town later nonsuited that count.
The parties filed competing motions for summary judgment in January, and Saylor heard arguments Feb. 27. The judge found there were no disputed material facts preventing the case from being decided as a matter of law.
Her Sept. 17 final order granted Comstock's motion and denied Herndon's.
Mayor Keven LeBlanc said in a statement on Saturday that the town strongly disagreed with the decision.
"We believe it runs counter to the terms and intent of our agreement, and to the important legal protections available to municipalities," LeBlanc said.
The mayor said the decision leaves Comstock in control of nearly five acres in the center of Herndon.
"This is not the end of our fight," LeBlanc said. "They may have this ruling, but they do not have our resolve."
LeBlanc said the town was preparing for "next steps in this legal process" but did not specify what those steps would be.
The final order gave the parties 10 days to file objections to the ruling and set a Sept. 25 status hearing. The order directed that the case be removed from the court's docket after that hearing.
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