deed of assignment by way of gift

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DEED OF ASSIGNMENT: EVERYTHING YOU NEED TO KNOW.

A Deed of Assignment refers to a legal document in which an assignor states his willingness to assign the ownership of his property to the assignee. The Deed of Assignment is required to effect a transfer of property and to show the legal right to possess it. It is always a subject of debate whether Deed of Assignment is a contract; a Deed of Assignment is actually a contract where the owner (the “assignor”) transfers ownership over certain property to another person (the “assignee”) by way of assignment. As a result of the assignment, the assignee steps into the shoes of the assignor and assumes all the rights and obligations pertaining to the property.

In Nigeria, a Deed of Assignment is one of the legal documents that transfer authentic legal ownership in a property. There are several other documents like a deed of gifts, Assent, etc. However, this article focuses on the deed of assignment.

It is the written proof of ownership that stipulates the kind of rights or interests being transferred to the buyer which is a legal interest.

Read Also: DIFFERENCE BETWEEN TRANSFER OF PROPERTY THROUGH WILLS AND DEED OF GIFT

CONTENTS OF A DEED OF ASSIGNMENT

Content of a Deed of Assignment matters a lot to the transaction and special skill is needed for a hitch-free transaction. The contents of a deed of assignment can be divided into 3 namely; the introductory part, the second (usually the operative part), and the concluding part.

• THE INTRODUCTORY PART: This part enumerates the preliminary matters such as the commencement date, parties in the transaction, and recitals. The parties mentioned in the deed must be legal persons which can consist of natural persons and entities with corporate personality, the name, address, and status of the parties must be included. The proper descriptions of the parties are the assignor (seller) and assignee (buyer). The Recitals give the material facts constituting the background to the current transaction in chronological order.
• THE SECOND PART (USUALLY THE OPERATIVE PART): This is the part where the interest or title in the property is actually transferred from the assignor to the assignee. It is more like the engine room of the deed of assignment. The operative part usually starts with testatum and it provides for other important clauses such as the consideration (price) of the property, the accepted receipt by the assignor, the description of the property, and the terms and conditions of the transaction.
• The testimonium : this shows that all the parties are involved in the execution of the deed.
• Execution : this means signing. The capacity of the parties (either individual, corporate bodies, illiterates) is of great essence in the mode of execution.  It is important to note that the type of parties involved determines how they will sign. Example 2 directors or a director/secretary will sign if a company is involved. In the same way, if an association, couple, individual, illiterate, family land (omonile), firm, unregistered association, etc. is involved the format of signature would be different.
• Attestation : this refers to the witnessing of the execution of the deed by witnesses.

For a Deed of Assignment to be effective, it must include a column for the Governor of the state or a representative of the Government where the property is, to sign/consent to the transaction. By virtue of Sec. 22 of the Land Use Act, and Sec. 10 Land Instrument Registration Law, the Governor must consent to the transaction.

Do you have any further questions? feel free to call Ibejulekkilawyer on 08034869295 or send a mail to [email protected] and we shall respond accordingly.

Disclaimer: The above is for information purposes only and should not be construed as legal advice. Ibejulekkilawyer.com (blog) 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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Essential Elements of a Deed of Gift

A Deed of Gift should contain certain essential elements to ensure that it is legally binding and enforceable. These elements include:

• Identification of the Parties Involved: The Deed of Gift should clearly identify the parties involved, including the donor (the person giving the gift) and the donee (the person receiving the gift).
• Description of the Gift: The Deed of Gift should provide a detailed description of the gift, including its nature, value, and condition.
• Consideration: While a gift is generally considered to be a transfer of ownership without consideration, it is still necessary to mention that there is no consideration involved in the transaction.
• Delivery of the Gift: The Deed of Gift should specify how the gift will be delivered to the donee, and when the transfer of ownership will take place.

Legal Implications of a Deed of Gift

A Deed of Gift has several legal implications, and it is important to understand them before entering into such an agreement. Some of the legal implications of a Deed of Gift include:

• Transfer of Ownership: A Deed of Gift results in the transfer of ownership of the gift from the donor to the donee. This means that the donor no longer has any rights or control over the gift.
• Tax Implications: Depending on the nature and value of the gift, there may be tax implications involved. It is important to consult a tax expert to understand the tax implications of a Deed of Gift.
• Acceptance of the Gift: The donee must accept the gift for the transfer of ownership to be complete. If the donee does not accept the gift, the transfer of ownership will not take place.
• Disputes: A Deed of Gift can help to avoid disputes and conflicts that may arise in the future due to ownership issues. However, if a dispute does arise, it is important to seek legal advice to resolve the matter.

How to Create a Deed of Gift

Creating a Deed of Gift is a simple process that can be done with the help of a legal expert. The steps involved in creating a Deed of Gift are as follows:

• Consult a Legal Expert. It is important to consult a legal expert to understand the legal implications of a Deed of Gift and to ensure that the document is legally binding and enforceable.
• Identify the Parties Involved. The donor and the donee should be identified in the Deed of Gift.
• Describe the Gift. The Deed of Gift should contain a detailed description of the gift, including its nature, value, and condition.
• Emphasize the Absence of Consideration. Even though a gift is generally considered to be a transfer of ownership without consideration, it is still necessary to mention that there is no consideration involved in the transaction.
• Specify Delivery of the Gift. The Deed of Gift should specify how the gift will be delivered to the donee, and when the transfer of ownership will take place.

Key Terms for Deed of Gift

• Transfer of Ownership: A Deed of Gift formalizes the transfer of ownership of a property or asset from one party to another as a gift.
• Protection of Interests: A Deed of Gift protects the interests of both parties involved in the transaction and ensures that the gift is given voluntarily and without any obligation or condition attached to it.
• Tax Benefits: A Deed of Gift can be used to ensure tax benefits for the donor, especially for charitable donations.
• Avoids Probate: A Deed of Gift can help avoid the probate process, saving time and money for the parties involved.
• Legal Requirements: A Deed of Gift must contain essential elements such as clear description of the property or asset, date of the gift, signatures of both parties and witnesses, and intention to make a gift without any obligation or condition attached to it.

Final Thoughts on Deed of Gift

A Deed of Gift is an important legal document that formalizes the transfer of ownership of a property or asset as a gift from one party to another. It is a crucial legal instrument that ensures the proper transfer of ownership and protects the interests of both parties involved in the transaction. The Deed of Gift should contain certain essential elements to ensure that it is legally binding and enforceable.

It is important to understand the legal implications of a Deed of Gift before entering into such an agreement. Creating a Deed of Gift is a simple process that can be done with the help of a legal expert. It can be used to transfer a wide range of assets, including real estate, personal property , money, intellectual property , and securities.

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Meet some of our Deed of Gift Lawyers

Matthew grew up in Leawood, Kansas. He graduated from the University of Kansas with a Bachelor of Arts degree in Political Science and Communications in 2016 and from the University of Kansas School of Law in 2019 where he received a Business and Commercial Law Certificate. During his time as an undergraduate, he worked at a consulting firm focused on political campaigns and corporate public relations. In May of 2020, he will receive an MBA with a focus on finance from the University of Kansas Business School. Matthew is interested in several practice areas including business and commercial law, arbitration, and civil litigation. In his free time, Matthew enjoys playing basketball, using his virtual reality headset and listening to audiobooks.

Katherine V.

I am a skilled legal researcher and writer with a background in contract drafting and negotiation as well as litigation. I've served as an arbitrator for the past three years and have presided over nearly 400 binding arbitrations for an online dispute resolution platform. Additionally, I am a content writer and editor for the insurance division of LexisNexis. In my role as a contractor for LexisNexis, I research, draft, and edit high-quality legal reference tools on a variety of insurance topics for use by lawyers and insurance industry professionals.

hawuki attended SUNY Binghamton where he graduated with a Bachelor of Science in Marketing and Leadership & Consulting. Shawuki then went on to pursue his Juris Doctorate from Western Michigan University Thomas M. Cooley Law (WMU Cooley). During his time at WMU Cooley, Shawuki served as Justice of Phi Alpha Delta Law Fraternity, International, Vice President of Entertainment of Sports and Entertainment Law Society, and an Associate Editor of the Western Michigan University Thomas M. Cooley Journal of Practical and Clinical Law. At the conclusion of law school, Shawuki graduated with cum laude honors earning a spot on the Honor Roll and Dean's List. Professionally, Shawuki is an attorney/contract advisor and a serial entrepreneur. As the Managing Attorney of The Hilton Law Firm, PLLC, Shawuki has aided over a dozen startups and existing businesses with contractual, regulatory, administrative, and other legal matters. As a Canadian Football League (CFL) Contract Advisor, Shawuki has negotiated multiple player contracts, ensuring just compensation for his clients. Entrepreneurially, Shawuki is an owner of multiple businesses and has a wealth of business experience. Shawuki is a member of the Florida and District of Columbia Bar, Phi Alpha Delta Law Fraternity, International, Phi Delta Phi Legal Honor Society, and was recently named to the National Black Lawyers Top 40 under 40 list Florida.

My main focus is estate planning and business transactions, but I have had many practice areas throughout my career, including criminal defense and prosecution, civil litigation from neighborhood squabbles to corporate contentions. I have also worked in bankruptcy, family law, collections, employment law, and personal injury. I stand ready to assist in any area to which I feel I can be of service, but will not try to fake it if I do not know the area of law I am being asked to serve in.

Dawn K Kennedy has been licensed to practice law since 2015, but has been an entrepreneur since 2011. She uses her extensive project management and business background to support small and mid-sized businesses with contracts, negotiations, and other matters relating to the operation of a successful business venture.

With over 10 years experience as a Real Estate Broker and an attorney, I can help you with all your residential real estate needs such as For sale by owner transactions and drafting grant deeds

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Deed of Assignment (for Intellectual Property)

In the realm of intellectual property, a Deed of Assignment is a formal legal document used to transfer all rights, title, and interest in intellectual property from the assignor (original owner) to the assignee (new owner). This is crucial for the correct transfer of patents, copyrights, trademarks, and other IP rights. The deed typically requires specific legal formalities, sometimes notarization, to ensure it is legally enforceable.

To be legally effective a deed of assignment must contain:

• Title of the Document : It should clearly be labeled as a "Deed of Assignment" to identify the nature of the document.
• Date : The date on which the deed is executed should be clearly mentioned.
• Parties Involved : Full names and addresses of both the assignor (the party transferring the rights) and the assignee (the party receiving the rights). This identifies the parties to the agreement.
• Recitals : This section provides the background of the transaction. It typically includes details about the ownership of the assignor and the intention behind the assignment.
• Definition and Interpretation : Any terms used within the deed that have specific meanings should be clearly defined in this section.
• Description of the Property or Rights : A detailed description of the property or rights being assigned. For intellectual property, this would include details like patent numbers, trademark registrations , or descriptions of the copyrighted material.
• Terms of Assignment : This should include the extent of the rights being transferred, any conditions or limitations on the assignment, and any obligations the assignor or assignee must fulfill as part of the agreement.
• Warranties and Representations : The assignor typically makes certain warranties regarding their ownership of the property and the absence of encumbrances or third-party claims against it.
• Governing Law : The deed should specify which jurisdiction's laws govern the interpretation and enforcement of the agreement.
• Execution and Witnesses : The deed must be signed by both parties, and depending on jurisdictional requirements, it may also need to be witnessed and possibly notarized.
• Schedules or Annexures : If there are detailed lists or descriptions (like a list of patent numbers or property descriptions), these are often attached as schedules to the main body of the deed.

Letter of Assignment (for Trademarks and Patents)

This is a less formal document compared to the Deed of Assignment and is often used to record the assignment of rights or licensing of intellectual property on a temporary or limited basis. While it can outline the terms of the assignment, it may not be sufficient for the full transfer of legal title of IP rights. It's more commonly used in situations like assigning the rights to use a copyrighted work or a trademark license.

For example, company X allows company Y to use their trademark for specific products in a specific country for a specific period.  

At the same time, company X can use a Letter of Assignment to transfer a trademark to someone. In this case, it will be similar to the Deed of Assignment. 

Intellectual Property Sales Agreement

An IP Sales Agreement is a detailed contract that stipulates the terms and conditions of the sale of intellectual property. It covers aspects such as the specific rights being sold, payment terms, warranties regarding the ownership and validity of the IP, and any limitations or conditions on the use of the IP. This document is essential in transactions involving the sale of IP assets.

However, clients usually prefer to keep this document confidential and prepare special deeds of assignment or letter of assignment for different countries.

IP Transfer Declaration

In the context of intellectual property, a Declaration is often used to assert ownership or the originality of an IP asset. For example, inventors may use declarations in patent applications to declare their invention is original, or authors may use it to assert copyright ownership. It's a formal statement, sometimes required by IP offices or courts.

When assigning a trademark, the Declaration can be a valid document to function as a proof of the transfer. For example, a director of company X declares that the company had sold its Intellectual Property to company Y. 

Merger Document

When companies or entities with significant IP assets merge, an IP Merger Document is used. This document outlines how the intellectual property owned by the merging entities will be combined or managed. It includes details about the transfer, integration, or handling of patents, copyrights, trademarks, and any other intellectual property affected by the merger.

In all these cases, the precise drafting of documents is critical to ensure that IP rights are adequately protected and transferred. Legal advice is often necessary to navigate the complexities of intellectual property laws.

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• Transferring a Property NOT pursuant to a sale – can it be done?

by Donovan & Ho (BD) | January 19, 2022 | Real Estate

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We often receive queries from individuals where a property was jointly purchased with loved ones or business associates, or even with an ‘ex’ and subsequently, one party wishes to transfer their portion of the property so there will now be just one owner. Another common scenario is where a husband / parent wishes to transfer the property to his wife or children while still alive.

In this article, we explore some frequently asked questions relating to situations that do not involve a sale of the property.

What are the documents needed to effect such a transfer?

An “MOT”, also known as “Instrument of Transfer”, is the legal instrument prescribed by the National Land Code 1965, which is used to effect the transfer of property with individual title or strata title. For a property without individual title or strata title issued, a Deed of Assignment (by way of transfer) is used to effect the transfer of the property.

Is a Sale and Purchase Agreement needed if no money is changing hands?

A Sale and Purchase Agreement (SPA) is not needed if no money is changing hands. However, it can be useful to have a simple SPA drawn up on a ‘friendly-party basis’ to capture the transfer, especially for the future disposal of the property to a bona fide third party purchaser.

What if the property is still subject to bank loan / charged to the bank?

If the property is still charged to a Bank, the outstanding loan must first be fully redeemed with cash OR from a completely new loan facility. Getting a new loan could mean a new (and lower) loan interest rate, but it will also involve additional legal fees and stamp duty (0.5% on the borrowed amount) on the loan documents.

The solicitor will then simultaneously register both the bank charge documents (for the new loan) and the MOT at the land office. It is also likely that the bank will insist for an SPA to be signed.

What is the time needed for such a transfer?

The whole process might take between 3 to 4 months, or more, depending on the tenure type of property, i.e. freehold or leasehold, whether there is a loan to redeem, or whether a developer is involved the property where the strata title is not yet issued.

Will state authority consent be required for such a transfer?

For a leasehold property, state authority consent will be required for the transfer. The state authority consent will take between 2 to 3 months depending on the location of the property.

What is the stamp duty involved in such a transfer?

You are also required to pay for the stamp duty to effect the transfer. The rates of stamp duty under the Stamp Act 1949 are as follows: –

• First RM100,000                                                 –           1%       
• Next RM400,000                                                 –           2%         
• Next RM500,000                                                 –           3%       
• Amounts above RM1,000,000                           –           4%

The stamp duty will be based on the property’s current market value which will be valued by the Inland Revenue Board and not based on original purchase price .

However, there are full or partial stamp duty exemptions if the transfer is done between spouses, parents and children:

Be mindful that transfers between siblings, friends, boyfriends and girlfriends, or grandparents are subject to the full stamp duty rate.

Will the transferor need to pay RPGT on such a transfer?

Under the Real Property Gains Tax Act 1976 (RPGT Act), there is a 100% RPGT exemption in the transfer of property between family members by way of love and affection between spouses, parents and children. The transferor is deemed to have received “no gain and suffered no loss” and not subject to any RPGT.

Apart from the above, any forms of transfer between siblings, friends, boyfriends and girlfriends, or grandparents are not entitled to apply for the RPGT exemption.

What is the RPGT implication to the transferee / recipient in the subsequent disposal?

The transferee should be aware that he is deemed to have acquired the property at the acquisition price that was previously paid by the transferor . Therefore, upon subsequent disposal by the transferee , he might be exposed to significant capital gains, especially if the property was previously owned by the transferor for a long amount of time.

It is always advisable to seek professional legal advice to first determine your exact situation after conducting the updated searches and a review of your documents, in order to assess the multiple variable factors and costs that would apply to your specific situation.

This article was written by  Shawn Ho  (Partner) & Suzanne Fam   (Senior Associate) from the property & tax  practice group of Donovan & Ho.   Shawn leads the  corporate  practice group of Donovan & Ho, and has been recognised as a Notable Practitioner, whilst the firm has been recognised as a Notable Firm for Corporate and M&A by Asialaw Profiles 2020 and 2021.  We are also ranked as a Recommended Firm by IFLR1000 2020 and 2021.

Our corporate practice group advises on corporate acquisitions, restructuring exercises, joint venture arrangements, shareholder agreements, employee share options and franchise businesses, Malaysia start-up founders and can assist with venture capital funds in Seed, Series A & B funding rounds. We also advise on property transactions and real-estate related tax planning. Feel free to  contact us  if you have any queries.

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Deed of Assignment | Assignor | Assignee

Assign your property to another with a "deed of assignment".

Transfer your property to another person

Last updated on 16 November 2023

1. What is a Deed of Assignment? 

A Deed of Assignment is a contract where the owner (the “assignor”) transfers ownership over property to another person (the “assignee”) by way of assignment. The assignee steps into the shoes of the assignor and assumes all the rights and obligations to the property.

2. When do you need a Deed of Assignment?

A Deed of Assignment is used when the owner wants to transfer ownership (and the rights and obligations) over property to another person.

3. What information do you need to create the Deed of Assignment?

To create your Deed of Assignment you’ll need the following minimum information:

• The type of assignor (e.g. individual or business) as well as name and details (e.g. nationality and address).
• The type of assignee (e.g. individual or business) as well as name and details (e.g. nationality and address).
• Brief description of the property to be assigned.

4.  How much is the document?

The document costs PHP 400 for a one-time purchase. Once purchased you have unlimited use and revisions of this type of document.

You can also avail of Premium subscription at PHP 1,000 and get (a) unlimited use of our growing  library  of documents (from affidavits to contracts); and (b) unlimited use of our “ Ask an Attorney ” service, which lets you consult an expert lawyer anytime for any legal concern you have.

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