Business Law 101 / Property Ownership

By Albert L. Kelley

What is property? Most people think of real estate when they think of property, but it applies to personal items and in some cases ideas as well. Basically, everything that can be owned is property. Personal property includes whole or partial rights in tangible property, claims and debts, and intangible property such as trademarks and copyrights.

People obtain property in many ways. The most common way to obtain property is to buy it. Purchases in this instance includes trading for other property (Money is considered property).

In addition to purchases, property may be acquired as a gift. Giving someone a Christmas or birthday present transfers ownership of property to them.   There are several types of gifts. When a gift is made between two living people it is called an inter vivos gift. When the gift is made in anticipation of impending death it is referred to as a gift causa mortis and is only effective if the giftor actually dies before taking the gift back. In other words it is a gift that is not fully effective until death. Gifts can also be made to a minor through a guardian. Gifts can also be made conditioned on an event happening or not happening. There are two types of conditions: a condition precedent requires an action to occur before the gift is made (such as “this is yours if you graduate high school”); a condition subsequent allows the gift to continue unless an event occurs (such as “the car is yours unless you drop out”).

In order for a gift to be effective, two things must occur. First there must be an intent to make a gift. If the intent is just to loan the item, ownership does not change and there is no gift. Second, there must be actual delivery of the item (although actual delivery may not be required; symbolic or constructive delivery is sufficient- such as delivering the property to the persons’ agent). If a person intends to make a gift, but dies before the item is delivered, there is no gift-the property must be transferred through probate.

Gifts are considered one-sided. With a contract, there must be consideration; each side sacrifices something-one gives money, the other service. With a gift, only one side, the giver, needs to act. However, because there is no consideration, a promise to make a gift is not enforceable.

Property can also be obtained by finding lost property. By finding lost property, the finder gains possession but not title to the property. In other words, if the true owner can prove ownership, he is entitled to regain his property. This right to reclaim may be discharged by the passage of time however.

Possessory rights also are transferred by theft, but title cannot pass through a theft. Stolen items can always be recovered by the true owner.

Registered vehicles, such as automobiles cannot be transferred unless their title is properly endorsed.

In some cases, title may pass by occupation or possession of property. Examples of this include homesteading or the capture of a wild animal.

            Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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