Transfer of Property

The transfer of property is exactly that – transferring the title of the piece of property to another person. The most typical way to transfer property is through a consensual transaction between the new owner and the previous owner. Sales or gifts of property are common examples of consensual transactions. A disposition is another consensual transaction, in which a deceased person’s property is distributed to beneficiaries. A trust is also another way to transfer property as the trust is established by the owner of the property. Also possible is the passing on of property from one person to another person without the consent of the property owner. This is often done through bankruptcy or a judgement through the court.

Brief Historical Background

The rights of owning property has evolved through community and culture. When one person lives in isolation, there is no worry about property rights. The issue of property rights arose when groups of people started coming together and building communities. Rules surrounding property rights needed to be defined and enforced so people could access property and the benefits of property. From centuries ago the concept that “this property is mine to enjoy, use and treat as I wish” has been in existence and many property owners still feel this way. Therefore, regulations concerning property rights as well as the definition of property rights have been defined, debated and modified over the last 200 years.

Along with the right of owning property comes the right of transferring property to another person. This can be done in different ways and usually at the discretion of the property owner, although sometimes it is not the property owner’s wish to transfer the property.

Precedent Setting Cases

One precedent setting case involving the right to transfer property is Kelo versus the City of New London, Connecticut in 2005. In this case, the city of New London had approved a plan for development that projected an increase of at least 1,000 jobs in order to increase taxes and other sources of revenue as well as to revitalize the economically distressed city, especially in the waterfront and downtown areas.

City officials purchased property from willing property owners however, there were some owners who refused to sell their property. The city then started condemnation proceedings when those owners of property refused to sell. These owners petitioned to the courts to deny the city rights to proceed. This court case went as high as the Supreme Court of the United States and the final decision was that the general benefits for the entire community outweighed the benefits of the few petitioners and therefore, the city was allowed to use the “Taking Clause” in the Fifth Amendment. The properties in question were taken by the city for public use.

In this case, other precedent setting cases were cited. Some of these cases included Hawaii Housing Authority versus Midkiff and Berman versus Parker.

Defenses

As there are not any defenses per se of transfer of property, it is more beneficial to discuss the ways to legally transfer property. One way to transfer property is to gift the property to another person. To gift a property to someone is to voluntarily transfer the property without full valuable consideration. In order for this transfer to be legal, the donor must intend to give the property to the donee and the gift must be delivered to the donee and accepted by the donee. Another common way to transfer property is to sell the property. For this to happen, there must be a seller, a purchaser, a property to sell and an agreed upon payment arrangement. Another way to transfer property is when the owner of the property defaults on payments or becomes bankrupt. The property can be taken over and transferred into someone else’s hand or even be transferred to a company.