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legalgems, Lawyer
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In Massachusetts I gifted part of a lot to someone but it

Customer Question

In Massachusetts
I gifted part of a lot to someone but it has not been recorded. Now I want to recind the gift. Is it possible to do so
Submitted: 7 months ago.
Category: Legal
Expert:  legalgems replied 7 months ago.

What document was used to gift the parcel?

Customer: replied 7 months ago.
a deed, about 45 days ago, it was not recorded, I received 1/4 of a lot 15 years ago and the idea was to return it to my mother, so that when she dies I get a stepped up value. The trustee, my sister plans to move it from my mother, to her trust, to another trust, and all the paperword is flawed. I want to stop the transfer until such time as thepaperwork follows mothers intent.
Expert:  legalgems replied 7 months ago.

Thank you for your patience.

So an unrecorded deed that is valid still has legal effect as to the parties that have actual or constructive notice. The purpose of the recording requirement is to protect good faith purchasers when relying upon recorded documents in the chain of title. So failing to record the deed does not void the deed as between the contracting parties.

A deed can be voided/rescinded if certain facts exist. The grounds for voiding a deed are as follows:

1. undue influence - a party unduly influences (ie manipulates) another, inducing that party to transfer the deed

2. breach of fiduciary duty- the parties have a certain relationship whereby one party owes the other a fiduciary duty -ie power of attorney, husband and wife, etc.

3. mistake - this requires either a mutual mistake of fact, or fraud - Cummings's Case, 52 Mass. App. Ct, 444 (2001)

If the idea is to return it to a particular estate and the transferee indicates that will occur, then they use their position as trustee of that estate to transfer the property out, the deed can be rescinded based on fraud. Additionally, if the transaction goes through and the trustee transfers property from the estate to their own estate, that is considered a breach of fiduciary duty, breach of trust, and possibly undue influence. A trustee is prohibited from self dealing.

Expert:  legalgems replied 6 months ago.

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