Gift Of New York Home Valid Even If Not Recorded

The mother executed a deed transferring her home to her son. She continued to live in the home with her son until her death, during which time she paid the real property taxes.

However, the deed was never recorded with the Onondaga, New York County Clerk. The public administrator of the mother’s estate commenced an action to set aside the deed.

An inter vivos (lifetime) gift is valid only if the donee establishes the following three elements by clear and convincing evidence: (1) intent on the part of the donor to make a present transfer of the property; (2) actual or constructive delivery of the gift to the donee; and (3) acceptance of the gift by the donee

The intent element requires an irrevocable present transfer of ownership, or title, although the donor may retain possession of the property for the remainder of his or her life.

The delivery element requires a delivery sufficient to divest the donor of dominion and control over the property, while the acceptance element is presumed when the gift is of value to the donee.

The son established that decedent intended to make a present transfer of her property to him but that she did not want the deed recorded “until things settle down,” because she was concerned that her daughters would “cause trouble” if they found out that she had given the property to him.

The son further established that he, his mother and her attorney were present when she executed the deed and related documents, that the deed was handed to him at her direction, and that he accepted it.

The New York Appellate Division, Fourth Department ruled that the son had established that an inter vivos gift had been made of the property.

The delivery of the deed to the son was not changed by the mother’s subsequent access to the deed or even her repossession of it.

Moreover, the fact that the mother continued to pay taxes on the property until her death is not inconsistent with her continued possession of the property and intention to make a present transfer of the title and ownership to defendant. The evidence established that she continued to pay the taxes on the home because she was residing there.

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