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Constructive Delivery

Delivery of documents under the law can be either actual or constructive. Actual delivery is easy to spot; it occurs when someone physically hands you a document with the intent to hand it over. So, if the owner had signed the lease and handed it back to Maria, then actual delivery would have taken place, and the lease would have become immediately effective.

By
Michael W. Flynn

Delivery of documents under the law can be either actual or constructive. Actual delivery is easy to spot; it occurs when someone physically hands you a document with the intent to hand it over. So, if the owner had signed the lease and handed it back to Maria, then actual delivery would have taken place, and the lease would have become immediately effective.

 

But under the law of most states, delivery is not confined to physically handing something over. Rather, delivery is a question of intent. Constructive delivery occurs when a person shows a present intent to unconditionally divest himself of his property, and to relinquish all control over it. When the owner signed the document and gave it to the rental agency with the intent that the agency would pass it along to Maria, the owner constructively delivered the leasehold interest to Maria. After the lease was constructively delivered, the condition that the lease would only become effective upon “delivery” was fulfilled. The moment the owner handed that lease to the agency, the lease became effective. Maria’s lease is valid, and the owner is stuck with Maria as a tenant for as long as the lease term runs. 

 

Constructive delivery is an important concept in land transfers. To effectively convey a grant of land, aka real property, most states require that the deed must be “delivered.” But, delivery in this context can also be actual or constructive, and the intent of the parties will control.

 

This issue often comes up in disputes over wills. Imagine the following scenario: Dad wants his ranch to go to his daughter, but wants to live there until he dies. So, Dad executes a deed in favor of the daughter and puts it in his safety deposit box with instructions to give the deed to the daughter when he dies. After he dies, the family finds a will that gives all his property to the local church. The question becomes whether Dad delivered the deed to the daughter when he executed it, but only put it in his safety deposit box instead of giving it to her. 

 

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