deed of gift assignment

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Donors of historical materials   are individuals or organizations that give materials to repositories, including historical societies, archives, or special collections libraries. Donated materials often include papers, records, and digital material documenting personal lives and family history or the history of organizations such as businesses, community associations, and religious groups. Repositories are administered by professional archivists, curators, or librarians, who assemble these materials, preserve them, and make them available for research. The relationship between you—as a donor—and a repository must be based on a common understanding of your wishes and the ability of the repository to carry out its mission and responsibilities. You should review the materials being offered for donation with the archivist or curator and discuss the repository’s policies and procedures for the care and use of donated materials. Most repositories have a collecting policy that informs their decisions about what they can accept. If both parties agree that the repository is an appropriate place for preservation of the materials, then both parties sign a deed of gift.

The Deed of Gift

The deed of gift is a formal and legal agreement between the donor and the repository that transfers ownership of and legal rights to the donated materials. A legal agreement is in the best interest of both donor and repository. After discussion and review of the various elements of the deed, the donor or donor’s authorized agent and a representative of the repository both sign it. The signed deed of gift establishes and governs the legal relationship between donor and repository and the legal status of the materials.

The Elements of a Deed of Gift

Various elements are essential to a deed of gift; others may be specific to the repository to which the materials are donated. The typical deed of gift identifies the donor, describes the materials, transfers legal ownership of the materials to the repository, establishes provisions for use, specifies ownership of intellectual property rights, and indicates disposition of unwanted materials. If you have any questions about the language of the deed of gift, ask for an explanation from the archivist or curator or from your attorney.

Name of the Donor and the Recipient

If you created and/or collected the materials you are donating, all that is needed in this section is your full legal name. If you are acting on behalf of someone else who created and/or collected the materials, include information about your relationship to that person or entity. You might note, for example, a sister, niece, son, or business agent. If you are not the creator of the materials, the repository may ask you for verification that you have the legal authority to donate them. The repository will provide its full name as the recipient.

Title and Description of the Materials Donated

This is generally a summary, such as “John Doe Papers,” or “Records of the First Baptist Church of Detroit,” and is written by the repository staff in consultation with the donor. The repository may wish to be more specific in describing the materials or append a detailed listing of the materials to the agreement.

Transfer of Ownership

In this section, the donor formally agrees to transfer legal ownership and physical custody of the materials, including future donations, to the repository. The deed will specify a point in time when the materials become the legal property of the repository (usually upon signing the deed or upon physical transfer of the materials to the repository). The repository will manage and care for them according to accepted professional standards and its mission and objectives.

Repositories prefer to accept materials through transfer of ownership. The cost of storing, preserving, and making collections available for research is so high that repositories generally can afford to do so only for materials they own. Most repositories do not accept materials on loan; those that do will generally not accept them without a legal deposit agreement outlining the terms and fixed duration of the loan. If you are donating materials that were created in digital formats, the repository may make it a condition of the gift that you not donate the same files to another repository.

After transfer of ownership, the staff of the repository will review the materials and may find that there is a reason to reformat some or all of those materials. For example, long-term preservation of fragile materials is a primary reason for microfilming, digitizing, creating multiple digital versions, or copying materials for use by researchers. The repository may also publicly present the digital versions on its website to the extent allowed under copyright law. Unless you note to the contrary in the gift agreement, when you transfer legal ownership of your materials to the repository, you agree that the staff may make reformatting and display decisions.

The archivist or curator will discuss with you the means by which your collection can be transported to the repository. In some cases this will involve a visit by an archivist or curator to your home or office. The repository may prefer to capture digital material directly from your computer. Part of that process is discussing how you use your computer in your work or personal life, including organization, file names, and file storage, especially storage in places other than your personal computer. The archivist or curator will need to know the current location of all the digital material that you wish to donate, such as backup disks or thumb drives, other computing devices, networked or cloud storage, or on the Internet.

Access to the Collection

  An essential mission of repositories is to make their collections open and available for research use. They accomplish this because most donors do not limit access to donated materials. There may be instances, however, when a donor or repository feels it is appropriate to restrict access to all or a portion of the materials for a limited and clearly stated period of time.

If the materials you donate contain student records, financial records, medical records, or legal case files relating to third parties (individuals other than you, your immediate ancestors, or your organization), federal or state privacy laws may apply. If you know that such materials exist, bring this to the attention of the archivist or curator. You may request that the archivist or curator discuss with you any such materials that the repository discovers during cataloging.

Be aware that any digital materials that you donate, including computers, computer disks, and other digital storage media, may contain passwords, web browsing history, other users’ files, and copies of seemingly deleted files. Whether or not these files are apparent to researchers will depend on the initial method of transfer and on the reposi-tory’s access policies and procedures for handling digital material, which may change over time as technology evolves. Discuss any concerns about deleted content with the archivist or curator.

If your concerns go beyond these types of materials, explain them to the archivist or curator, and be as specific as possible when you discuss the papers or records you want to restrict. If needed, the archivist or curator will work with you to arrive at language regarding a restriction for a limited time that is acceptable to you and which can be enforced by the repository.

Transfer of Intellectual Property Rights

When you sign the gift agreement, you transfer legal ownership of the physical and/or digital materials you donate. Ownership of intellectual property rights (primarily copyright, but including trademarks and patent rights) may also be legally transferred by the deed of gift. Copyright generally belongs to the creator of writings or other original material, such as photographs or music. Donors are encouraged to transfer to the repository all rights they possess in the donated materials; this assists researchers in their scholarship by making it easier to quote from or publish documents. If you wish to retain all or a portion of the intellectual property rights you own, you may include such a provision in the deed of gift, but you and the archivist or curator should agree on a date when full rights will be transferred to the repository. A separate license for digital content, distinct from copyright ownership, may help a repository to manage the preservation and use of that content. You cannot transfer ownership of rights to the works of others, such as letters written to you by others, included in the materials you donate.

Under the terms of U.S. Copyright Law, repositories may provide copies of items in their collections for scholarly research use, regardless of who owns the copyright. Under the “fair use” exemption, the law permits that researchers may publish portions of an item under copyright. Permission to publish or quote extensively from the material must still be obtained from the copyright holder. To learn more about copyright, see www.copyright.gov or ask your attorney.

Separations

In the course of arranging and describing the materials you donate, the repository’s staff will retain substantive materials of enduring historic value and separate out those materials that are duplicative or outside the collecting scope of the repository. Discuss with the archivist or curator your preferences for the disposition of separated materials and arrive at an agreement that can be stated in the deed of gift. Options include shredding out-of-scope materials, transferring them to another repository, or returning them directly to you. These options can be spelled out in the deed of gift.

Other Elements

Repositories vary widely in the kinds of materials they collect, the users they serve, and the facilities in which they preserve materials and make them available for research. As a result, a repository may require or permit the deed of gift to contain language related to a wide range of other issues. If you have any questions or concerns about what is or is not included in a deed of gift, it is important that you raise these with the archivist or curator before signing the agreement. Although a repository may not be able to accommodate a specific request, it is best to discuss all relevant issues.

Signing the Deed

It is important to sign the deed of gift as soon as you and the archivist or curator have discussed and agreed on its provisions. Few repositories will accept a collection without a signed deed of gift. If necessary, the deed of gift can be amended if both sides concur. Amendments should be signed and dated by both the donor and the repository’s representative.

Tax Deductions

In certain circumstances, it may be possible for a donor to take a tax deduction for the donation of a collection to a repository. Speak with your tax accountant or attorney about this possibility. Archivists cannot give tax advice, nor are they permitted to appraise the monetary value of a collection that is under consideration for donation to their repository. The archivist may be able to provide you with a list of local manuscript appraisers who can (for a fee) make monetary appraisals. It is up to you, as the donor, to arrange and pay for any such appraisal.

Lasting Benefits

The deed of gift confirms a legal relationship between the donor and repository that is based on a clearly articulated and common understanding. This relationship ensures that the donated materials, which help illuminate our past and its influence on us, are preserved and made available to future generations.

This work is licensed under a  Creative Commons Attribution 4.0 International License .

Originally prepared in the 1990s as a joint project of the Manuscript Repositories Section and Acquisitions and Appraisal Section of the Society of American Archivists (SAA). Christine Weideman served as principal author. Revised in 2013 by SAA’s Manuscript Repositories, Acquisitions and Appraisal, and Electronic Records sections. Images in print edition of brochure courtesy of Atlanta University Center Robert W. Woodruff Library; Beinecke Rare Book and Manuscript Library, Yale University; Carleton College Archives; Daily Herald, Lehi, Utah; Boy Scouts of America; Girl Scouts of Western Ohio; Labor Archives and Research Center, San Francisco State University; Louis Round Wilson Special Collections Library, University of North Carolina at Chapel Hill; Louisiana State University Libraries Special Collections; National Archives and Records Administration; New York Transit Museum; The Newberry Library; Raynor Memorial Libraries, Marquette University; iStockphoto; Bob Dylan/Grateful Dead concert staff pass © Wolfgang’s Vault.

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A gift deed is a legal paper that transfers the right of property, asset, or funds from one individual to another without exchanging consideration or money. Moreover, it is a voluntary act of the contributor who plans to gift the asset or property to the recipient. Besides, a gift deed is executed when the contributor is alive, and the recipient obtains the gift during the donor's lifetime. The transfer of ownership is quick and irrevocable, which implies that once the gift deed is signed, the donor cannot cancel or revoke the gift.

Key Components of a Gift Deed

A gift deed must fulfill certain prerequisites to be valid and enforceable.

• Competent Parties: The donee and donor must be competent to contract and have a sound mind.
• Acceptance: The donee must accept the gift during the donor's lifetime. If the donee dies before accepting the gift then it becomes invalid.
• Free Consent: The donor must execute the gift deed willingly without coercion, undue influence, fraud, or misrepresentation.
• Registration: A gift deed must be documented with the Sub-Registrar of Assurances in the property's jurisdiction.
• Delivery: Delivery of possession of the property or asset must be made to the donee when signing the gift deed.

How to Create a Gift Deed

The process of creating a gift deed involves the following steps:

• Drafting of a Gift Deed. The primary step in drafting a gift deed is to prepare the gift deed by adding the relevant details. A gift deed must incorporate the details of the recipient and donor, the property's value, a description of the property, and any other terms and conditions agreed upon by the recipient and donor.
• Stamp Duty and Registration. Once the gift deed is drafted, it must be stamped and registered as per the prevailing laws of the state where the property is situated. The stamp duty and registration charges vary from state to state.
• Delivery of Possession. After the gift deed is signed, the donor must provide possession of the property or asset to the recipient. The transfer of ownership is concluded only when the possession of the property is provided to the recipient.
• Execution of the Gift Deed. After the gift deed is registered and stamped, the donor and the recipient must execute the gift deed in the presence of two appointed witnesses. The named witnesses must also sign the gift deed.

Features of a Gift Deed

Below are some important features of a gift deed.

• Voluntary Transfer: A gift deed is a voluntary transfer of ownership from one individual to another.
• No Consideration: A gift deed transfers ownership without exchanging funds or consideration. The donor grants the asset or property to the recipient without accepting anything in return.
• Quick and Irrevocable Transfer: The transfer of ownership is quick and irrevocable. Once the gift deed is executed, the donor cannot cancel or withdraw the gift.
• Stamp Duty and Registration: A gift deed must be registered and stamped as per the state's prevailing regulations where the property is located. In addition, the registration costs and stamp duty differ from state to state.

Benefits of Gift Deeds

A gift deed offers several benefits for both the donor and the recipient.

One of the most prominent advantages of a gift deed is that it lets the donor transfer the right of their property to someone else without executing any financial transaction. It can be exceptionally beneficial for parents who want to transfer the right of their property to their kids without causing any financial obligation to them. And by gifting their property, parents can guarantee their kids can use their property and assets without spending money.

By gifting property during one's lifetime, individuals can bypass the probate process, which can be costly and time-consuming, and ensure a smooth transfer of their assets to their loved ones.

Gift deeds also offer tax benefits to both the recipient and the donor. In addition, any gift obtained from a relative or immediate family member is exempt from tax. It implies that you do not have to settle any tax if you obtain a gift from your siblings, parents, spouse, or children. Also, a donor can claim tax advantages for charitable donations made through a gift deed.

Gift deeds can also be valuable for safeguarding assets. For instance, a person facing bankruptcy or a lawsuit may risk losing their assets. By gifting their property to another individual, they can guard it against creditors' taking it. Nevertheless, it is essential to note that gift deeds may be deemed fraudulent if made to defraud creditors.

Ultimately, gift deeds can provide better peace of mind to both the recipient and donor. By transferring ownership of their property to someone else, donors can guarantee that their assets are being used as planned. For recipients, gift deeds can offer a sense of safety and stability, knowing they have access to the assets and property they require.

Key Terms for Gift Deeds

• Gift Deed: A legal paper used to share ownership of an asset or property from one individual to another as a gift.
• Donee: The person who accepts the gift in a gift deed.
• Donor: The person who is providing the gift in a gift deed.
• Property: The asset or object gifted in a gift deed.
• Consideration: Something of worth that is given in exchange for property transfer. In the case of a gift deed, there is no consideration concerned.
• Stamp Duty: A tax imposed on the worth of the gift deed.
• Registration: The process of officially recording the gift deed with the appropriate government authority.
• Immoveable Property: A property that cannot be transferred from one location to another, such as buildings, land, or other structures.
• Notary: A public official entrusted to confirm and authenticate legal papers.
• Title: The legal right of the property or asset being moved.
• Succession: The process of transferring the right of property or assets after the owner's demise.

Final Thoughts on Gift Deeds

A gift deed is a prevalent way of transferring property ownership among friends, family members, or acquaintances. It is a voluntary transfer of ownership from one individual to another without exchanging money or consideration.

The transfer of ownership is immediate and irrevocable, and once the gift deed is executed, the donor cannot revoke or cancel the gift. A gift deed must be stamped and registered as per the state's prevailing laws where the property is situated, and the stamp duty and registration charges vary from state to state.

In conclusion, utilizing a gift deed can be a beneficial estate planning strategy for individuals who wish to transfer their property to loved ones during their lifetime. It can help avoid probate, streamline the transfer process, and provide peace of mind knowing that their property is being transferred according to their wishes. However, it's important to seek legal advice and carefully consider the implications of gifting property before proceeding.

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What is a Deed of Gift?

The Deed of Gift is a formal and legal agreement between you, the donor, and Special Collections that transfers ownership of and legal rights to the donated materials. The relationship between you, as a donor, and Special Collections must be based on a common understanding of your wishes and the ability of Special Collections to carry out its mission and responsibilities. You should review the materials being offered for donation with a Special Collections archivist or curator and discuss its policies and procedures for the care and use of your donated materials. Special Collections has a collecting policy that informs its decisions about what we can and cannot accept. Donors are encouraged to examine the Special Collections Deed of Gift .

What are the Elements of a Deed of Gift? The Special Collections Deed of Gift identifies you, the donor, describes the materials, transfers legal ownership of the materials to Special Collections, establishes provisions for use, specifies ownership of intellectual property rights, and indicates disposition of unwanted materials. If you have any questions about the language of the Deed of Gift, ask for an explanation from a Special Collections archivist or curator or from your attorney. Names of the Donor and the Recipient If you created and/or collected the materials you are donating to Special Collections, all that is needed in this section is your full legal name. If you are acting on behalf of someone else who created and/or collected the materials, include information about your relationship to that person or entity. You might note, for example, a sister, niece, son, or business agent. If you are not the creator of the materials, Special Collections may ask you for verification that you have the legal authority to donate them. Special Collections will provide its full name as the recipient.

Transfer of Ownership The Deed of Gift will specify a point in time when the materials become the legal property of Special Collections (usually upon signing the deed or upon physical transfer of the materials to the repository). Special Collections will manage and care for them according to accepted professional standards and its mission and objectives. Special Collections prefers to accept materials through transfer of ownership. The cost of storing, preserving, and making collections available for research is so high that Special Collections can afford to do so only for materials they own. Most repositories do not accept materials on loan; those that do will generally not accept them without a legal deposit agreement outlining the terms and fixed duration of the loan. If you are donating materials that were created in digital formats, Special Collections may make it a condition of the gift that you not donate the same files to another repository. After transfer of ownership, the staff of Special Collections will review the materials and may find that there is a reason to reformat some or all of those materials. For example, long-term preservation of fragile materials is a primary reason for microfilming, digitizing, creating multiple digital versions, or copying materials for use by researchers. The repository may also publicly present the digital versions on its website to the extent allowed under copyright law. Unless you note to the contrary in the Deed of Gift agreement, when you transfer legal ownership of your materials to the repository, you agree that Special Collections may make reformatting and display decisions.

Transfer of Intellectual Property Rights When you sign the Deed of Gift agreement, you transfer legal ownership of the physical and/or digital materials you donate. Ownership of intellectual property rights (primarily copyright, but including trademarks and patent rights) may also be legally transferred by the Deed of Gift. Copyright generally belongs to the creator of writings or other original material, such as photographs or music. Donors are encouraged to transfer to Special Collections all rights they possess in the donated materials; this assists researchers in their scholarship by making it easier to quote from or publish documents. If you wish to retain all or a portion of the intellectual property rights you own, you may include such a provision in the Deed of Gift, but you and the Special Collections archivist or curator should agree on a date when full rights will be transferred to Special Collections. A separate license for digital content, distinct from copyright ownership, may help Special Collections to manage the preservation and use of that content. You cannot transfer ownership of rights to the works of others, such as letters written to you by others, included in the materials you donate. Under the terms of U.S. Copyright Law, Special Collections may provide copies of items in their collections for scholarly research use, regardless of who owns the copyright. Under the “fair use” exemption, the law permits that researchers may publish portions of an item under copyright. Permission to publish or quote extensively from the material must still be obtained from the copyright holder. To learn more about copyright, see www.copyright.gov or ask your attorney.

Separations In the course of arranging and describing the materials you donate, the Special Collections staff will retain substantive materials of enduring historic value and separate out those materials that are duplicative or outside the collecting scope of Special Collections. Discuss with the Special Collections archivist or curator your preferences for the disposition of separated materials and arrive at an agreement that can be stated in the Deed of Gift. Options include shredding out-of-scope materials, transferring them to another repository, or returning them directly to you. These options can be spelled out in the Deed of Gift.

Signing the Deed of Gift It is important to sign the Deed of Gift as soon as you and the Special Collections archivist or curator have discussed and agreed on its provisions. Few repositories will accept a collection without a signed Deed of Gift. If necessary, the Deed of Gift can be amended if both sides concur. Amendments should be signed and dated by both the donor and a Special Collections representative.

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Deed of Gift

 IS A DEED OF GIFT A VERITABLE INSTRUMENT OF TRANSFER OF INTEREST IN LAND?

There is no gainsaying to the fact that a land can be acquired through any of these means:

• First settlement
• Sales of land
• Inheritance

However, this article will center on the acquisition of a land via a Deed of Gift. A Deed of Gift is a legal instrument which transfers title in real/personal property from one person to another without monetary consideration. As a general rule, it is only a person who has a property that can transfer same. T his principle is derived from the latin maxim, “Nemo dat quod non habet”which means you cannot give what you don’t have.

In our contemporary day society, it is rare to see a Property owner transfer his property or a portion of his property via a Deed of Gift. In many cases, it is usually via a Deed of Assignment after consideration has passed from the Purchaser to the Vendor. However, that is not to imply that a Deed of Gift, though being an instrument rarely used to convey or transfer an interest in land, is not a valid instrument of Transfer It is as valid as any other form of instrument of transfer of interest. Being a gift, such transfer or conveyance must be voluntarily made. It must not be done under undue influence or under a misrepresentation or fraud. At all times, the Gifter (the one who gives) must voluntarily understand his capacity and have the intention to transfer his interest on his property to the Giftee (the one who is being given).

Conditions that must be present for a Deed of Gift to be valid:

• Certainty of property.
• Certainty of parties.
• Voluntariness of the Gifter or Donor.
• Acceptance by the Giftee or Donee.

Once these conditions are present, then the deed becomes binding on the Gifter and he may not be able to reverse it on his own volition whether or not it was done without any monetary compensation from the Giftee or Beneficiary.

In the case of EKPECHI V OWHONDA (1998) 3 NWLR (Pt 543) 627 , it was held,  

“A grantor cannot derogate from his grant. He cannot seek to take away with one hand what he has given with the other hand. This obligation also binds not only the grantor but persons claiming under him”.

The transfer of interest in property via a Deed of Gift has many benefits. They include but not limited to the following:

• It is made during the lifetime of the Gifter as such, any ambiguity with respect to the property is clarified.
• It saves the Giftee or Beneficiary money as Capital Gain Tax is not charged on the transaction.
• It is easy and cheaper to transfer an interest in property via a Deed of Gift than a Deed of Assignment, Deed of Mortgage, or Assent.
• It prevents certain unwholesome practices like will alteration or forgeries as Giftees already know their gifts even prior to the demise of the Gifter.
• It saves the Giftees time, energy, and money from having to make applications for the grant of a letter of probate or administration, whichever is applicable upon the demise of the Owner, which usually takes a long period of time to obtain.

Some years back, I acted as an attorney to a lady who claimed that during the lifetime of her father, he had gifted her a property (House A) but following his demise, the same property (House A) earlier gifted her was purportedly bequeathed to another person (Mr X) in a controversial will. She sought to know whether the purported will of her late father superseded the Deed of Gift in respect of the same property. To back up her claim, she produced a Deed of Gift signed by her late father in the presence of two (2) witnesses. Surprisingly, she did not sign the Deed to indicate that she had accepted the gift. It therefore follows that the Deed was neither stamped nor registered; hence, the onus of proving ownership laid largely on us.

We were faced with the following burden:

• How could we convince the Court that had the man made a will, he would not have included House A in his will because he had earlier gifted it to his daughter?
• That the mere fact that the daughter did not sign the Deed of Gift is not an indication of non-acceptance but a mere omission considering that she had taken possession of same for a period of about 6 months before her father’s demise?

In the course of a lengthy trial, the families of the deceased decided to settle out of court before the conclusion of the case. As a way of amicably resolving the protracted issue, our client was nevertheless given the House A with the exception of the Boys quarters and fallow land which were given to the Mr X, with other properties allotted to him.

Now, had it been that our Client had signed the Deed of Gift and had same registered at the Lands Registry, even though the will purports to have given the House A to Mr X, the court would be minded to exclude House A from the will in the event the will was not forged. This is because upon the receipt of the land and subsequent registration by our Client, her father would cease to have ownership of the land and as such would not have been in a position to transfer same (even though he was the original owner).

In conclusion, a Deed of Gift is a veritable instrument of transfer of interest in land and its process is much less cumbersome than other forms of instruments of transfer such as a Deed of Assignment or a Deed of Mortgage. Upon the acceptance of the gift, it is advisable that the Giftee registers it in other to have an undisputed title.

For more inquiries on how to transfer your interest in land either via Deed of Gift or other means, feel free to call Ibejulekkilawyer on 08034869295 or send us an email at [email protected] .

Disclaimer: The above is for information purposes only and should not be construed as a legal advice. Ibejulekkilawyer.com (bloc) shall not be liable to any person(s) for any damage or liability arising whatsoever following the reliance of the information contained herein. Consult us or your legal practitioner for legal advice.

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Introduction to the Deed of Gift – What You Need to Know in Advance

In life, we often give gifts, while we also enjoy receiving them. Along the way, we are sure that we know what a gift is and what its significance is.

However, are gifts really completely “free”? Are the obligations and rights of the parties in this legal relationship the same when the gift is given and when the gift is, for example, a pair of earrings? Is it the same if the gift is a pair of diamond earrings or some trinkets?

Additionally, the question often remains in the practice of what if, for example, someone we gave a gift we feel no longer deserves it? Is there a way to seek the gift back, after a divorce from a spouse for example, or some similar life (mis)fortunes?

Due to such clients’ concerns, we wanted to explain with this text the details related to gifts of high value, which every donor and donee should know.

1. What is a deed of gift

A deed of gift is a contract whereby, for instance, you, as a donor, give something to a donee, or you undertake to give a certain thing or a property or to transfer some rights to the beneficiary – donee.

Therefore, we have 2 sides to this relationship.

This means that in order to conclude a deed of gift, both parties must agree on its essential elements:

• the unencumbered nature of giving and
• the subject of the gift.

Unencumbered nature means that you cannot, in return, claim compensation or a favor from a person you gifted, as that would represent a burden to their property. So, the gift must be, in one word – free.

Such a legal transaction is called a good deed and it is a way for a donor to present gratitude or to reward their donee.

However, the mere consent of will is not sufficient for the deed of gift to be valid, but it requires a real act, the transfer of assets. If a written deed of gift is made, it obliges the donor to make a real act – i.e. donate gifts.

However, as the gift can be given orally, the gift can be transferred even before or without the written agreement, and such an act will be considered a gift. Of course, this refers exclusively to movable items, since the immovable property is subject to a more severe regime to a certain extent, so the gift thereof must be made through a written agreement solemnized with a notary public.

The object of the gift can be the donor’s property, which includes tangible assets or any other rights they possess. Hence, gifts may encompass various items: movable or immovable property, consumable goods, or items intended for future purchase, whose acquisition is assured but not yet finalized. Additionally, through gifting, one can confer actionable rights or perform acts that benefit property, such as forgiving a debt or settling someone else’s liabilities.

What cannot be the subject of a deed of gift are a person’s rights and easements related to personality. For example, the right to inheritance, moral copyright , permission to hold weapons, etc…

Surely, as with everything, there are some reserves and exceptions to the rule, even with gifts…

• Specifically, when it comes to the rule of unilateral giving, this rule can be made relativized when it comes to one of the deeds of gift types. That is the deed of a gift with a burden. In this case, donors may retain the right for themselves or instruct a donee to assign another right to a third party or do something to someone;
• Although a donor is not responsible for the deficiencies of the thing, due to the fact that the gift is a good deed, in the case of a deed of gift with cash as the subject, the beneficiary of a gift shall be entitled to the legal default interest rate in the event of a delay in fulfillment;
• Thus, even when the burden of any gift exceeds the value of the gift, the donor is responsible for the legal and material defects of things.

2. Which regulation should be applied?

If you were to look for legal rules relating to gifts, you would be surprised. Although it is frequently seen in practice, a deed of gift is not regulated by the applicable Law on Obligations . Therefore, the provisions of the Serbian Civil Code from 1844 are still applied to this contract.

Nevertheless, the overarching principles outlined in the Law on Obligations are applicable to gift deeds, just as they are to all other contractual agreements. These encompass various provisions, including those addressing the impermissibility of the contract’s foundation or subject matter, contravention of mandatory regulations, public policy, customary practices, and similar considerations.

With the deed of gift, attention should also be paid to the impact of the rule of Inheritance law. The gift is counted in the inheritance to the heir unless it is a customary and less valuable gift and unless it is stated otherwise or there was a different intention. In addition, if a gift is made to another in the last year of the donor’s life, thereby compromising the necessary part of the heir, such a gift may be contested.

On the other hand, in relation to the gift, the Family Law governs the legal treatment of the gifts made during the marriage.

3. Property as a gift

It’s great when someone gives you an apartment? But did you know that any acquisition of property, even a gift, is burdened with tax?

It is true that the value of the property, for example, cannot be compared to the amount of the tax on its transfer. However, if on the one hand, we have the impression that the gift is free, and on the other hand, we observe the amount of taxes, in this case, this burden does not really seem insignificant.

You are obliged to pay the taxes on immovable property, a gift, cash and other possible gift items for which the Property Tax Law prescribes the obligation to pay gift tax.

However, with the obligation to pay a gift tax, there are certain exemptions and grounds for exemption from this obligation. They precisely aim to facilitate the transfer of rights between persons who are in a special relationship.

According to the Law, a taxpayer is not a person who receives things or rights in the same year from the same person in an amount not exceeding the amount of 100,000.00 dinars.

Donor’s first-degree relatives are also exempt from the gift tax, that is, its children, parents, as well as the spouse.

The second-degree heirs, such as: parents, brothers and sisters, in some cases, when they have a special relationship with the subject of gifts, may also be tax exempt. These cases are explicitly regulated by the Law.

What is the amount of that tax?

The beneficiaries are fortunate enough to pay 2.5% of the value of the gift they receive for their acceptance of the free gift.

Nonetheless, beneficiaries who are second-degree relatives of the donor enjoy specific privileges. If none of the tax exemptions outlined by the law are applicable, they will be required to pay a 1.5% tax based on the value of the gift.

Notary public’s fee

Although you now have in mind how much it may cost you to receive a gift, you certainly do not think about the notary and their “slice of the pie”.

If the subject of the gifts is immovable, the costs of the notary vary depending on its value. However, when the gift is made to first-degree relatives, the notary public’s fee for this contract is reduced by 50%.

4. Can a gift be “ withdrawn ” ?

Generally speaking, yes, it can, and in legal terms, that’s known as a gift revocation. However, a deed of gift may be revoked only for explicitly contractual or legal reasons.

Legal reasons go within the context of changed circumstances concerning the parties or their mutual relationship. These reasons aim to preserve the meaning of the unencumbered giving and to protect the donor against the evil intention and the bad behavior of the beneficiary.

The legal reasons for the annulment of gifts are:

• Ungratefulness, i.e. gross negligence toward a donor or someone close to them is one of the reasons why a donor can revoke a deed of gift.
• A donor can revoke a gift in case of a lack of basic necessities for life.
• A gift made to a spouse during the course of a marriage may be revoked after the divorce if the value of that gift is disproportionately larger in relation to their common property.

On the other hand, the usual gifts given during the marriage do not have to be returned even after the divorce, i.e., the annulment of the marriage.

The right to revoke a gift can also be given to a third party if they are the donor’s creditor, a person that the donor is obligated to support or a necessary heir.

A lawsuit is used for the revocation of the gift that is subject to the deed of gift, or when the gift is handed over to a donee, and the court decides on the merits of such a request.

However, some gifts can never be revoked in any way, and these are the previously mentioned usual gifts, gifts made for charity and prize-giving gifts.

So, do not be afraid of the calls of an ex-partner who asks you to return the perfume, scarf or speakers that they gave to you a lifetime ago, or “they will sue you…”

5. Deed of gift – when is it (not) the best choice?

A deed of gift is often made as an alternative to other legal transactions for the transfer of property. Most often, the reason behind this is that the parties would use the specifics of this agreement to avoid the burden imposed by other legal transactions.

For example, due to the many benefits in terms of tax and notary public remunerations, the advantage of this contract is noticeable in comparison to the purchase contract.

However, the underlying weakness of the deed of gift is the possibility of revocation for various reasons. Therefore, it is good to know the different options that can protect the will to give something to a particular person.

Alternatives to the deed of gift, which are irrevocable by third parties, and in that sense provide the greatest legal security, are the contract on the transfer and distribution of life assets and the contract of lifelong support. However, each situation calls for a different solution, so don’t forget to analyze all the circumstances of the particular case so that you can be sure that you have chosen the option that most suits your particular case.

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What is the difference between a grant deed and a gift deed? (Civ. Code § 1113)

While grant deeds and gift deeds are incredibly similar, their differences can inevitably lead to legal disputes. The added family dynamics that typically accompany gift deeds can make things even murkier. In these situations, having an experienced real estate attorney at your side can make all the difference. The Underwood Law Firm encounters both types of deeds with frequency and has the familiarity and skill to help title holders understand their rights.

What is a deed?

A deed is a written instrument (a document) that conveys or transfers the title to real property; it is an executed conveyance and operates as a present transfer of real property. ( Estate of Stevens (2002) 28 Cal.4th 665, 672.) Deeds are also considered written contracts and are therefore subject to the rules applicable to and governing contracts. (Civ. Code § 1040; Johnston v. City of Los Angeles (1917) 176 Cal. 479, 485.)

Once executed, a deed becomes the grant itself. Because of this, a valid deed is subject to numerous requirements.

In order for the deed to function as a legally-binding transfer of real property, it must first be in writing. It must also name both the person conveying and receiving the title. It must be signed by the grantor under the Statute of Frauds, delivered to the individual receiving the deed, and finally, accepted by the grantee. (see generally Civ. Code § 1091.) If any of these “essential elements are missing, the deed is ineffective to transfer title.” ( In re Marriage of Wozniak (2020) 273 Cal.App.5th 120, 134.)

What is a grant deed?

A grant deed is the most common method Californians use to transfer title to real property. (Miller & Starr 3 Cal. Real Estate § 8:5.) Authorized under Civil Code section 1092, the grant deed is called such because the person giving up the land is literally “granting” their property rights to another person.

With other types of deeds, this isn’t always the case. For example, quitclaim deeds are usually characterized by the words “release and remise.” There, the person transferring the title is not “granting” their property rights to someone else but instead “releasing” their interest in the property to another person.

This difference in language may seem trivial or inconsequential, yet the law stresses the importance of language. Thus, “the essential of such a [grant] deed has long been held to be the word ‘grant.’” ( Klamath Land & Cattle Co. v. Roemer (1970) 12 Cal.App.3d 613, 618.)

What does a grant deed convey?

When a grant deed is used as the method of conveyance, it “conveys a fee simple title to the grantee for all purposes.” ( Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 511.)

A fee simple estate is a legal way of saying that one holds all the property rights possible associated with a certain piece of land. “Ownership of title in fee simple absolute includes the rights, subject to governmental restrictions, of full use and disposition of the property.” ( Carlson v. Assessment Appeals Bd. I (1985) 167 Cal.App.3d 1004, 1013.) The title may endure forever, without limitation, and will pass to the grantee and their heirs.

The fee simple title is also alienable, devisable, and descendible. This means it can be sold at any time, transferred upon the owner’s death via will, or passed through the laws of intestate succession if no will is present.

In California, most title is held in fee simple, as it allows property owners to enjoy the maximum amount of property rights. But just because a grant deed is used does not mean the title is automatically conveyed in fee simple. Like all other types of contracts, intent matters. And any person transferring title, even through a grant deed, can intend to transfer a “lesser” estate. ( Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 378.)

What is a gift deed?

Generally, gift deeds (or deeds of gift) are just another form of grant deed. They usually convey the title in fee simple, and they typically include the word “grant” in their operative language. They are, however, unique in that they are “gifts.” They are transfers of title to property without anything given in return. For the most part, they are tools used between family members as a means of conveying property.

From afar, this seems problematic. As stated earlier in the post, deeds are considered written contracts, meaning the contours of contract law apply to them. The fundamentals of contracts are the same in virtually every state. To be valid, there must be an offer, an acceptance, and most importantly, consideration .

There is a wealth of law on consideration, but in essence, it is a benefit conferred or detriment suffered as a result of a promise. (Civ. Code § 1605.) For example, if A contracts with B to pay B $10,000 for a house, then the $10,000 is the real estate contract’s consideration. The money exchanged makes the contract valid.

Usually, promises to make gifts are unenforceable by the law. This is because they do not involve consideration. A gift is given in exchange for nothing. There is no “bargained for exchange.” (see Passante v. McWilliam (1997) 53 Cal.App.4th 1240, 1247.)

But gift deeds are one of the exceptions to this general rule. Because of the importance of real estate title, and the commonplace desire of families to transfer title between their members, the law allows for gift deeds to proceed even if they transfer property for nothing in exchange. “It is settled that a deed without fraud in its inception conveys title and is not void for any failure of consideration…” ( Wooster v. Department of Fish & Game (2012) 211 Cal.App.4th 1020, 1030.)

Does my deed carry an implied covenant?

When title is conveyed through a grant deed, it comes with implied covenants. This means there are promises inherent to and within the deed itself unless otherwise denoted.

Under the California Civil Code section 1113, two covenants apply to any conveyance through a grant: (1) that prior to executing the present conveyance, the grantor did not themself convey the same estate, or any right, title, or interest, to anyone else other than the grantee, and (2) that such estate is, at the time of the present conveyance, free from all encumbrances suffered by the grantor.

Gift deeds, on the other hand, may not carry these covenants. While the authority for this position is quite old, it has yet to be explicitly disproved. Thus, under California law, love and affection are sufficient considerations to support a conveyance of property as a gift, but they are not sufficient considerations to hold the property as containing the implied covenants. ( In re Estate of Porter (1903) 138 Cal. 618, 624.)

How can the Attorneys at Underwood Law Assist You?

Understanding how you hold title to your property is incredibly important. Based on the deed, you may have additional rights and obligations associated with your property. Additionally, the deed is the foremost document for many lawsuits involving property, be it a partition, adverse possession, foreclosure, breach of warranty, etc.  

As each case is unique, property owners would be well-served to seek experienced counsel familiar with estates and property interests of all types. At Underwood Law, our knowledgeable attorneys are here to help. If you are concerned about your deed being canceled, seeking to understand your property rights, or if you just have questions, please do not hesitate to contact our office.

Go here to get more details.

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Deed Of Assignment – Meaning, Uses, & Benefits

One of the biggest mistakes you could make in the real estate industry is to buy a property without collecting a deed of assignment property document . You might as well have just given the person the money. 

The deed of assignment is a very important document in the real estate sector that proves ownership over the property. 

The deed contains crucial details about the real estate transaction that may be relevant in court in case of any issues or problems that may arise.

Without a deed of assignment, you have no valid ownership over a property. 

Needless to say, it is a very important document that every property owner must be familiar with. 

What Is A Deed Of Assignment?

• Components Of A Deed Of Assignment 

Types of interests that can be assigned with a deed of assignment

• What Is The Difference Between A Deed Of Assignment And A Deed Of Conveyance? 
• Significance Or Reasons Of A Deed Of Assignment 

Frequently Asked Questions

A deed of assignment is a legal document that transfers the ownership rights, title, and interests of a property or other asset from one party to another.

The term is often used interchangeably with the term “deed of conveyance,” as there is only a little difference between both documents. 

The deed of assignment is typically used in circumstances where someone wants to transfer the ownership rights of a property to another party, either as a gift or as a sale.

The deed of assignment specifies the property or asset being transferred as well as the parties engaged in the transfer, including their names and addresses.

It also contains details regarding any monetary aspects of the transfer, such as the purchase price and any applicable taxes or fees.

Depending on the regulations of the jurisdiction where the transfer is occurring, the deed of assignment must be signed and dated by both parties in the presence of witnesses or a notary public. 

The deed becomes a binding legal instrument after it is signed, transferring ownership of the item from the original owner to the new owner.

A deed of assignment is frequently used in real estate transactions to transfer ownership of a property from a seller to a buyer.

In this situation, the buyer typically pays the seller the purchase price in exchange for transferring ownership rights. 

The deed will contain details about the property , the purchase price, and any other relevant terms and conditions of the sale.

Components Of A Deed Of Assignment 

For a deed of assignment to be valid, there is certain information that must be present in the paperwork. 

The components of a deed of assignment can vary depending on the jurisdiction and the specific requirements of the transaction.

You would need to find out what components should be in the deed for your country or city.

Also read: 10 Must-Have Important Property Document In Nigeria

The following are common elements that are typically included in a deed of assignment: 

• Parties involved: The deed will identify the parties involved in the transfer, including the present owner and the new owner. The full legal names and primary addresses of both parties will be listed in the document.
• Description of the property: The deed will contain a detailed description of the property or asset being transferred. Depending on the kind of property, this could include the address, legal description, or other identifying information.
• Transfer of ownership: The terms at which the present owner will transfer ownership of the asset to the new owner will be stated in the deed. It will also be stated that the transfer is final and irrevocable. The deed would also contain the specifics of the transaction if it is a sale. It will contain the purchase price and any other financial considerations involved in the transaction. This may include details about any deposits, down payments, or financing arrangements.
• Signatures and notarization: Both parties must sign and date the deed in the presence of witnesses or a notary public. This makes the transfer enforceable and legally binding.
• Legal warranties and representations: The deed may contain warranties or representations from the current owner about the ownership and condition of the property or asset being transferred. This may include statements about the absence of liens or encumbrances or the condition of the property.
• Governing law: The deed may specify the governing law that applies to the transaction. This helps to ensure that the transfer is conducted in accordance with applicable laws and regulations.

As earlier stated, a deed of assignment is a legal document used to transfer a specific interest or right in a property from one party to another. Several types of interests can be assigned with a deed of assignment, some of which are:

1. Leasehold interests

A leasehold interest is a right to use and live in a property for a specified period in exchange for rent. This kind of property interest is different from freehold ownership, which is the complete and long-term ownership of a piece of property.

A leasehold interest can be transferred through a deed of assignment from one tenant to another or from a tenant to a landlord . 

Once the deed is executed and the leasehold interest is transferred to the new tenant, the new tenant will be responsible for fulfilling the terms of the lease, including paying rent and complying with any other conditions or restrictions specified in the lease.

2. Mortgages and other security interests

A mortgage is a loan that is secured by a piece of real estate. When a borrower takes out a mortgage, they use the asset as security for the loan, and the lender takes on a property right in the asset until the debt is fully repaid.

An assignment of mortgage is a procedure that allows a mortgage to be transferred to a different lender. This involves using a deed of assignment to transfer the mortgage’s interest from the lender currently in possession of it (the assignor) to another lender (the assignee).

3. Easements and rights of way

An easement is a right to use a specific portion of another person’s property for a particular purpose, such as a right of way for access to a landlocked property.

This could mean access to use a driveway or pathway that crosses over a neighbor’s property.  

A deed of assignment can also be used to transfer an easement or right of way from one party to another.

The deed will specify the nature and extent of the easement being transferred so there are no misunderstandings between the parties involved. 

4. Intellectual property rights

Intellectual property rights are legal rights that protect creations of the mind, such as inventions, literary and artistic works, and symbols, names, and designs used in commerce.

Types of intellectual property rights include patents, trademarks, copyrights, and trade secrets.

Also read: Real Estate Logo – Designs, Ideas, & Components

A deed of assignment can also be used to transfer intellectual property rights from one party to another. 

Once the deed is executed and any necessary registration or filing requirements are met, the assignee will become the owner of the rights and will have the exclusive right to use, license, or otherwise exploit the intellectual property as they see fit, subject to any limitations or conditions specified in the assignment document.

What Is The Difference Between A Deed Of Assignment And A Deed Of Conveyance? 

A deed of assignment and a deed of conveyance are two very important documents that are common in real estate transactions.

They are often mixed up and this is simply because both are legal documents used to transfer ownership of property or assets from one party to another. 

A deed of assignment is used to transfer the existing rights to a property from one party to another, such as a leasehold interest, a mortgage, or an easement.

It does not transfer the ownership of the property itself, but rather a specific right or interest related to the property.

On the other hand, a deed of conveyance is used to transfer the ownership of a property from one party to another.

It establishes a new title for the buyer and confirms their ownership of the property.

Some differences between the two documents include:

1. Nature of the transfer

The nature of the transaction being carried out will determine which document is needed. A deed of assignment is typically used to transfer ownership of an existing property or asset from one party to another.

In contrast, a deed of conveyance is used to transfer ownership of a new or unregistered property from the seller to the buyer.

2. Legal effect

A deed of assignment is generally used in situations where the seller has a legal and valid title to the property, and is transferring ownership to the buyer.

The deed of assignment confirms the transfer of ownership and ensures that the seller has no further claim to the property.

In contrast, a deed of conveyance is used to create a new title for the buyer and transfer ownership from the seller to the buyer.

3. Registration

The method by which both documents are registered can also be used to distinguish between the two. A deed of conveyance must be registered with the relevant land registry or a government agency to be valid. 

This registration process creates a new title for the buyer and confirms their ownership of the property. While for a deed of assignment, registration may not be required by law but may still be recommended or necessary to protect your interests.

The content of both documents also differs and this can be used to tell them apart from each other. A deed of conveyance typically includes more details about the property being transferred, such as the property’s location , size, boundaries, and any existing encumbrances or restrictions on the property.

A deed of assignment, on the other hand, may focus more on the terms of the transfer, such as the purchase price and the date of transfer.

Significance Or Reasons Of A Deed Of Assignment 

It is impossible to overstate the significance of a deed of assignment. The significance of this deed lies in its ability to protect the rights of both the buyer and seller in a transaction.

1. Transfer Of Ownership

The main significance of the deed of assignment is to serve as evidence of the transfer of ownership of a property or asset from one party to another. It is a legal document that establishes the new owner’s right to possess, use, and dispose of the property or asset. 

The deed covers both the essential conditions as well as the specific terms that the parties to the transaction have agreed upon. 

2. Legal Protection

In the event of any problems or issues over the transfer of property, the deed of assignment gives both parties legal protection.

By signing a deed, both parties acknowledge their understanding of the terms of the transfer and agree to abide by those terms. 

3. Proof Of Ownership

For the new owner, a deed of assignment acts as ownership documentation for the new owner. This can be crucial when dealing with financial institutions, insurance providers, or other organizations that typically require proof of ownership before granting loans , insurance coverage, or providing other services.

4. Clear Title

A deed of assignment can help to establish a clear title for the property or asset being transferred. This is important because it can help to prevent any legal disputes or challenges to ownership in the future.

5. Compliance With Legal Requirements

In many jurisdictions, a deed of assignment is required by law to transfer ownership of certain types of property or assets.

By obtaining a deed of assignment, both parties can ensure that they comply with any legal requirements that may apply.

Who Drafts A Deed Of Assignment? 

Usually, a deed of assignment is drafted by the assignee’s lawyer. It is generally advisable to have a qualified legal professional draft the document to ensure that it is legally valid and binding.

What Is The Benefit Of A Deed Of Assignment?

The primary benefit of the deed is to protect the rights of ownership. Other benefits of the deed include formality purposes, confirming the validity of ownership, and guaranteeing that the best interests of the parties are properly represented. 

In conclusion, a deed of assignment is a very important document in the process of transferring ownership rights in real estate. 

It is used to protect the rights of both the buyer and the seller, and to ensure that the transfer is conducted in accordance with applicable laws and regulations.

And as such, it should be safeguarded and treated with the utmost security. 

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Framed picture: Russian School, "Ecclesiastical deed of the Grand Duke of Moscow, Dmitry Donskoy, 1389", 80 x 66 - Wood Markant: Dark brown

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ASIN	B00DWGNQXC
Date First Available	May 2, 2014

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Product Description

Fine Arts Reproduction Picture title: Ecclesiastical deed of the Grand Duke of Moscow, Dmitry Donskoy, 1389 Artist: Russian School Printing technique: Digitaldruck Paper: Artprint Paper With handcrafted quality framing Wood Markant: Dark brown With non-reflecting and UV-resistant foil finishing! We deliver your picture with any kind of framing. Please contact us! Search terms: Fine Arts Reproduction, russland, rusland, after, ruland, russische, schule, Ecclesiastical, deed, the, Grand, Duke, Moscow, Dmitry, Donskoy, 1389, BAL152007, ink, paper, Russian, School

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