Issues relating to deeds of gift

A deed of gift is a document that is registered in the land registry to indicate ownership. This type of ownership is created when a donor gives land or property, free of charge, to someone referred to as a donee, free of charge. Land could be given to a family member or any other person as a deed of gift.{{more}} If the land is given to a close family member, that is, a husband, wife, parent or child, no stamp duty (tax) is required, because the law provides for this exemption. If given to any other person, then that person is required to pay the stamp duty. An evaluation of the worth of the land must be done as a basis for the stamp duty assessment.

Registered vs unregistered deeds

Although deeds of gift have served to bring benefits to many, they have, however, been a source of contention and have divided families. The case of Reece v Williams, No. 402 of 2009, is one such case in point where two family members claimed ownership of the same portion of land. The claimant contended that she had ownership through a deed of gift, while the defendant contended that he had an unregistered deed of gift and that he was in possession of the disputed land. The defendant had chased the claimant’s agent off the land and cultivated crops for his own use. In that way, he prevented the claimant from exercising acts of ownership over the disputed property. As a result, the claimant sought the court’s assistance for relief and a declaration that she was the rightful owner. Besides his claim on an unregistered deed, the defendant also contended on counter claim that the claimant had used undue influence to obtain the gift from the donor, whom he claimed was of unsound mind at the time the gift was made. At the trial, however, he did not pursue the issue of undue influence.

Issue of unregistered deed of gift

The issue relates to whether someone could claim ownership from an unregistered deed of gift. The judge in that matter decided that the unregistered deed of gift had no effect. The Registration Act requires all titles, transfer and incumbrances to real property to be registered. It was for a good reason that the framers of the law required registration of deeds. Registration serves the purpose of giving a proper title for real property. It also serves to give notice to anyone who wants to conduct any transaction in relation to the land. When the document is registered it is given a number and the original is deposited at the land registry with the year noted on it. It serves no purpose to have a document purporting to be a deed of gift locked away in some safe place without registration. It must be registered for the world to see. Anyone conducting a search at the registry would be able to find it. The owner may be able to secure a mortgage on this document because there is an original copy at the registry.

The act does not state a time within which the title is to be registered, but the act clearly states that the first deed in order of time takes priority. Registration, as it seems, is required to seal the formalities.

Ada Johnson is a solicitor and barrister-at-law.
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