Updated on June 15, 2021
You receive a property from a family member or friend, but down the line, this family member or friend decides they want to take the gifted property back. Can they do this? Can someone take away real property gifted to you?
A gift is a volunteer transfer of property to another person made without necessarily receiving a payment or reward in exchange. There are common legal issues to think about if you are giving or receiving a gift:
Are you entitled to rescind a gift you have made, or keep a gift that has been made to you?
A gift, if valid, is a legally enforceable transfer under general contract law. That means, if a gift meets all of the legal elements of a valid gift, then the gift is enforceable and cannot generally be rescinded and revoked.
Essential elements of a gift require:
● The donor be legally competent to contract
● The donor’s voluntary intent to make a gift
● Delivery of the gift (actual or symbolical)
● Acceptance by the person receiving the gift (actual or imputed)
● Donor divests control the gift
● No consideration (payment or reward) is given for the gift
There are additional requirements if the gift involves real property. The Statute of Frauds applies to gifts of real property, meaning that many real property gifted to you will require the donor (grantor) to provide a valid writing that indicates the grantor’s and grantee’s names, describes the property, indicates that it is a grant of the grantor’s interest in the property, and be signed by the grantor. The writing (oftentimes a deed) must also be delivered to and accepted by the grantee.
In addition, the classification of a gift may also determine whether or not a gift is revocable. In particular, there are a class of gifts called “gift causa mortis,” also known as “gifts in view of impending death,” which may be revoked under a number of circumstances. Those types of gifts are given based on the would-be donor’s belief of impending death from disease or danger. California law provides that this type of gift may be revoked by the giver at any time if the giver wishes to do so; it may also be revoked automatically if the giver recovers from illness or escapes from the peril under which the gift was made, among other situations.
There are situations where a gift is considered legally invalid. It is important to remember, regardless of the type of gift, whether it is personal or real property, the donor must have voluntary intent to make a gift. This is one of the essential elements introduced above. Therefore, a donor may revoke a gift that was given through fraud, threats, coercion, duress, or other illegal demands.
There may be situations where you do not want a gift. You are entitled to reject a real property gifted to you. When a gift is unaccepted or rejected, title to the property is left as though it was never gifted. If you want to reject a gift of personal or real property, you are required to disclaim it in writing if it is being given to as a beneficiary of a will or trust. In other situations, it is probably still a good idea to disclaim it in a writing by a formal declaration.
Our Los Angeles real estate attorneys at Schorr Law are experienced in all types of real estate fraud disputes, including those that concern gifts of real property. To inquire about a free 30-minute consultation, and to see if you qualify for one, contact us today!