Legal requirements for a valid gift of land

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The making of a gift, and in particular a gift of land, involves the parties complying with a number of legal principles. If the legal requirements are not followed then the gift could be invalid.

In order to make a gift of land during your lifetime there are a number of legal requirements that need to be complied with.

These transfers are often referred to as inter vivos gifts. This just mean a transfer or gift made between people during their lifetime. It can be contrasted with a testamentary gift such as that contained in a will which becomes effective when somebody dies.

The legal requirements can be separated into two parts; requirements for general inter vivos gifts, and requirements specific to the transfer of land.

In general inter vivos gifts require donative intent, delivery and acceptance. If any of these are not present then the gift fails. The donor (the person making the gift) should  not receive anything tangible in return for a gift. The legal requirements for general inter vivos gifts are as follows:

1. The donor needs to have mental capacity and a degree of understanding to make the gift. The degree of understanding should correspond with the value of the gift. For example, a gift of an expensive car would require a higher degree of understanding than a gift of a cheap watch.

2. The donor must have the ‘intention’ of making the gift. If the gift is not of land then intention can be inferred if it is made at a time when gifts are common, such as Christmas or birthdays.

3. The subject matter of the gift must be certain.

4. There must be a valid transfer of ownership. If the donee knows of the gift he must accept it. There is a test called the ‘every effort’ test where the donor must have taken all the required steps to transfer the gift.

In order for an inter vivos gift of land to be valid, the following requirements also apply:

1. All transfers of land, or any interest in land, must be evidenced in writing. This is stated in Section 52 of the Law of Property Act 1925.

2. The land must also be registered using the Land Registry TR1 form and signed as a deed by the transferor. However, in the case of Mascall v Mascall [1985] the donor, who passed away, did everything he could to transfer the land to his son. His son, the donee, failed to register the land in his name before the donor died. The courts found it was a valid transfer as the donor had done everything he could to transfer the land.

If you wish to make a gift of land or are involved in a dispute concerning a gift of land then our lawyers are on hand to assist.

 

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