assignment is deed

Deed of Assignment: Everything You Need to Know

A deed of assignment refers to a legal document that records the transfer of ownership of a real estate property from one party to another. 3 min read updated on January 01, 2024

Updated October 8,2020:

A deed of assignment refers to a legal document that records the transfer of ownership of a real estate property from one party to another. It states that a specific piece of property will belong to the assignee and no longer belong to the assignor starting from a specified date. In order to be valid, a deed of assignment must contain certain types of information and meet a number of requirements.

What Is an Assignment?

An assignment is similar to an outright transfer, but it is slightly different. It takes place when one of two parties who have entered into a contract decides to transfer all of his or her rights and obligations to a third party and completely remove himself or herself from the contract.

Also called the assignee, the third party effectively replaces the former contracting party and consequently assumes all of his or her rights and obligations. Unless it is stated in the original contract, both parties to the initial contract are typically required to express approval of an assignment before it can occur. When you sell a piece of property, you are making an assignment of it to the buyer through the paperwork you sign at closing.

What Is a Deed of Assignment?

A deed of assignment refers to a legal document that facilitates the legal transfer of ownership of real estate property. It is an important document that must be securely stored at all times, especially in the case of real estate.

In general, this document can be described as a document that is drafted and signed to promise or guarantee the transfer of ownership of a real estate property on a specified date. In other words, it serves as the evidence of the transfer of ownership of the property, with the stipulation that there is a certain timeframe in which actual ownership will begin.

The deed of assignment is the main document between the seller and buyer that proves ownership in favor of the seller. The party who is transferring his or her rights to the property is known as the “assignor,” while the party who is receiving the rights is called the “assignee.”

A deed of assignment is required in many different situations, the most common of which is the transfer of ownership of a property. For example, a developer of a new house has to sign a deed of assignment with a buyer, stating that the house will belong to him or her on a certain date. Nevertheless, the buyer may want to sell the house to someone else in the future, which will also require the signing of a deed of assignment.

This document is necessary because it serves as a temporary title deed in the event that the actual title deed for the house has not been issued. For every piece of property that will be sold before the issuance of a title deed, a deed of assignment will be required.

Requirements for a Deed of Assignment

In order to be legally enforceable, an absolute sale deed must provide a clear description of the property being transferred, such as its address or other information that distinguishes it from other properties. In addition, it must clearly identify the buyer and seller and state the date when the transfer will become legally effective, the purchase price, and other relevant information.

In today's real estate transactions, contracting parties usually use an ancillary real estate sale contract in an attempt to cram all the required information into a deed. Nonetheless, the information found in the contract must be referenced by the deed.

Information to Include in a Deed of Assignment

Names of parties to the agreement
Addresses of the parties and how they are binding on the parties' successors, friends, and other people who represent them in any capacity
History of the property being transferred, from the time it was first acquired to the time it is about to be sold
Agreed price of the property
Size and description of the property
Promises or covenants the parties will undertake to execute the deed
Signatures of the parties
Section for the Governors Consent or Commissioner of Oaths to sign and verify the agreement

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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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Deed of Assignment or Deed of Novation: Key Differences and Legal Implications of Novation and Assignment Contracts

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March 13, 2024
Building and Construction Contracts , Building and Construction Law , Commercial and Business Case Law and Legislation

Novation and assignment stand out as pivotal processes for the transfer of contractual rights and obligations. These legal concepts allow a party to the contract to adapt to changing circumstances, ensuring that business arrangements remain relevant and effective. This article explores the nuances of novation and assignment, shedding light on their distinct legal implications, procedures, and practical applications. Whether you’re a business owner navigating the transfer of service contracts, or an individual looking to understand your rights and responsibilities in a contractual relationship, or a key stakeholder in a construction contract, this guide will equip you with the essential knowledge to navigate these complex legal processes.

What is a Deed of Novation?
What is a Deed of Assignment?

Key Differences Between Novation and Assignment Deeds

Need a deed of novation or assignment key factors to consider, selecting the right assignment clause for your contract – helping you make the right choice, what is a deed of novation.

Novation is a legal process that allows a new party to a contract to take the place of an original party in a contract, thereby transferring both the responsibilities and benefits under the contract to a third party. In common law, transferring contractual obligations through novation requires the agreement of all original parties involved in the contract, as well as the new party. This is because novation effectively terminates the original contract and establishes a new one.

A novation clause typically specifies that a contract cannot be novated without the written consent of the current parties. The inclusion of such a clause aims to preclude the possibility of novation based on verbal consent or inferred from the actions of a continuing party. Nevertheless, courts will assess the actual events that transpired, and a novation clause may not always be enforceable. It’s possible for a novation clause to allow for future novation by one party acting alone to a party of their choosing. Courts will enforce a novation carried out in this manner if it is sanctioned by the correct interpretation of the original contract.

Novation is frequently encountered in business and contract law, offering a means for parties to transfer their contractual rights and duties to another, which can be useful if the original party cannot meet their obligations or wishes to transfer their contract rights. For novation to occur, there must be unanimous consent for the substitution of the new party for the original one, necessitating a three-way agreement among the original party, the new party, and the remaining contract party. Moreover, the novation agreement must be documented in writing and signed by all involved parties. Understanding novation is essential in the realms of contracts and business dealings, as it provides a way for parties to delegate their contractual rights and responsibilities while freeing themselves from the original agreement.

What is a Deed of Assignment?

A deed of assignment is a legal document that facilitates the transfer of a specific right or benefit from one party (the assignor) to another (the assignee). This process allows the assignee to step into the assignor’s position, taking over both the rights and obligations under the original contract. In construction, this might occur when a main contractor assigns rights under a subcontract to the employer, allowing the employer to enforce specific subcontractor duties directly if the contractor fails.

Key aspects of an assignment include:

Continuation of the Original Contract: The initial agreement remains valid and enforceable, despite the transfer of rights or benefits.
Assumption of Rights and Obligations: The assignee assumes the role of the assignor, adopting all associated rights and responsibilities as outlined in the original contract.
Requirement for Written Form: The assignment must be documented in writing, signed by the assignor, and officially communicated to the obligor (the party obligated under the contract).
Subject to Terms and Law: The ability to assign rights or benefits is governed by the specific terms of the contract and relevant legal statutes.

At common law, parties generally have the right to assign their contractual rights without needing consent from the other party involved in the contract. However, this does not apply if the rights are inherently personal or if the contract includes an assignment clause that restricts or modifies this general right. Many contracts contain a provision requiring the consent of the other party for an assignment to occur, ensuring that rights are not transferred without the other party’s knowledge.

Once an assignment of rights is made, the assignee gains the right to benefit from the contract and can initiate legal proceedings to enforce these rights. This enforcement can be done either independently or alongside the assignor, depending on whether the assignment is legal or equitable. It’s important to note that while rights under the contract can be assigned, the contractual obligations or burdens cannot be transferred in this manner. Therefore, the assignor remains liable for any obligations under the contract that are not yet fulfilled at the time of the assignment.

Choosing Between Assignment and Novation in a Construction Contract

Choosing between a deed of novation and an assignment agreement depends on the specific circumstances and objectives of the parties involved in a contract. Both options serve to transfer rights and obligations but in fundamentally different ways, each with its own legal implications, risks, and benefits. Understanding these differences and considering various factors can help in making an informed decision that aligns with your goals.

The choice between assignment and novation in a construction project scenario, where, for instance, an employer wishes to engage a subcontractor directly due to loss of confidence in the main contractor, hinges on several factors. These are:

Nature of the Contract: The type of contract you’re dealing with (e.g., service, sales) can influence which option is more suitable. For instance, novation might be preferred for service contracts where obligations are personal and specific to the original parties.
Parties Involved: Consent is a key factor. Novation requires the agreement of all original and new parties, making it a viable option only when such consent is attainable. Assignment might be more feasible if obtaining consent from all parties poses a challenge.
Complexity of the Transaction: For transactions involving multiple parties and obligations, novation could be more appropriate as it ensures a clean transfer of all rights and obligations. Assignment might leave the original party with ongoing responsibilities.
Time and Cost: Consider the practical aspects, such as the time and financial cost associated with each option. Novation typically involves more complex legal processes and might be more time-consuming and costly than an assignment.

If the intention is merely to transfer the rights of the subcontractor’s work to the employer without altering the subcontractor’s obligations under a contract, an assignment might suffice. However, if the goal is to completely transfer the main contractor’s contractual role and obligations to the employer or another entity, novation would be necessary, ensuring that all parties consent to this new arrangement and the original contractor is released from their obligations.

The legal interpretations and court decisions highlight the importance of the document’s substance over its label. Even if a document is titled a “Deed of Assignment,” it could function as a novation if it transfers obligations and responsibilities and involves the consent of all parties. The key is to clearly understand and define the objective behind changing the contractual relationships and to use a deed — assignment or novation — that best achieves the desired legal and practical outcomes, ensuring the continuity and successful completion of the construction project.

Understanding the distinction between assignment deeds and novation deeds is crucial for anyone involved in contractual agreements. Novation offers a clean slate by transferring both rights and obligations to a new party, requiring the consent of all involved. Assignment, conversely, allows for the transfer of contractual benefits without altering the original contract’s obligations. Each method serves different strategic purposes, from simplifying transitions to preserving original contractual duties. The choice between novation and assignment hinges on specific legal, financial, and practical considerations unique to each situation. At PBL Law Group, we specialise in providing comprehensive legal advice and support in contract law. Our team is dedicated to helping clients understand their options and make informed decisions that align with their legal and business objectives. Let’s discuss!

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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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Assignment of Deed

Table of contents, assignment of deed of trust.

An assignment of deed is used to show the deed of a property changing from one party to another, such as when a sale is made. It is used as the written proof to show who has rightful ownership of the property. When someone is purchasing property and decides to sell it before they have paid it off, an assignment of deed form would be used to transfer the rights and everything associated with the property over to the new owner.

When a debtor transfers real estate to a creditor, the Assignment of Deed is the legal document used to record this transfer. This happens when a lawsuit is filed on a property owner for a default in payment and the court’s rule in favor of the creditor; this is one example of when the deed of assignment would be put in to use. It’s used to show that the property is being transferred from the ownership of the defendant and given to the plaintiff that won the case and awarded the property.

It’s important to understand what these documents mean as they pertain to public property records as well as personal background checks into an individual. This could be exactly the type of information you need to help you gain a better understanding on someone or his or her history. It could also be in your own public background information if someone knows where to look for it.

Public records will always contain the history of who owns real property and the details on that property as it exchanges hands or ownership is passed. Anyone who knows how can access basic information about a deed or its assignments.

When a property owner uses an assignment of deed of trust, they are assigning ownership of the property to someone else and this is a very important document that should be kept in a safe and secure place. There are also public records kept on these types of documents and you should be able to request a copy – sometimes at a fee – should you need one.

The Assignment of Deed will also specify the rights the other person will receive along with the deed. As property transfers ownership like this, a recital is usually included as well which shows how many people and the identities of who has owned the property before. This allows you to see how many times the property has transferred hands over the course of its history.

Now that you know more about this particular property document, you will understand it when you use it. Whether you need it for your property or you are searching the property records of someone else for some reason, this information will be very beneficial to you.

We know that these types of legal matters can be confusing to the average person and that’s why we strive to make it easier to understand by giving you the basics here. Assignment of deed of trust documents do not have to confuse you anymore.

assignments basic law

Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

Founded in 1939, our law firm combines the ability to represent clients in domestic or international matters with the personal interaction with clients that is traditional to a long established law firm.

Understanding an assignment and assumption agreement

Need to assign your rights and duties under a contract? Learn more about the basics of an assignment and assumption agreement.

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by Belle Wong, J.D.

Belle Wong, is a freelance writer specializing in small business, personal finance, banking, and tech/SAAS. She ...

The assignment and assumption agreement

The basics of assignment and assumption, filling in the assignment and assumption agreement.

While every business should try its best to meet its contractual obligations, changes in circumstance can happen that could necessitate transferring your rights and duties under a contract to another party who would be better able to meet those obligations.

Person presenting documents to another person who is signing them

If you find yourself in such a situation, and your contract provides for the possibility of assignment, an assignment and assumption agreement can be a good option for preserving your relationship with the party you initially contracted with, while at the same time enabling you to pass on your contractual rights and duties to a third party.

An assignment and assumption agreement is used after a contract is signed, in order to transfer one of the contracting party's rights and obligations to a third party who was not originally a party to the contract. The party making the assignment is called the assignor, while the third party accepting the assignment is known as the assignee.

In order for an assignment and assumption agreement to be valid, the following criteria need to be met:

The initial contract must provide for the possibility of assignment by one of the initial contracting parties.
The assignor must agree to assign their rights and duties under the contract to the assignee.
The assignee must agree to accept, or "assume," those contractual rights and duties.
The other party to the initial contract must consent to the transfer of rights and obligations to the assignee.

A standard assignment and assumption contract is often a good starting point if you need to enter into an assignment and assumption agreement. However, for more complex situations, such as an assignment and amendment agreement in which several of the initial contract terms will be modified, or where only some, but not all, rights and duties will be assigned, it's a good idea to retain the services of an attorney who can help you draft an agreement that will meet all your needs.

When you're ready to enter into an assignment and assumption agreement, it's a good idea to have a firm grasp of the basics of assignment:

First, carefully read and understand the assignment and assumption provision in the initial contract. Contracts vary widely in their language on this topic, and each contract will have specific criteria that must be met in order for a valid assignment of rights to take place.
All parties to the agreement should carefully review the document to make sure they each know what they're agreeing to, and to help ensure that all important terms and conditions have been addressed in the agreement.
Until the agreement is signed by all the parties involved, the assignor will still be obligated for all responsibilities stated in the initial contract. If you are the assignor, you need to ensure that you continue with business as usual until the assignment and assumption agreement has been properly executed.

Unless you're dealing with a complex assignment situation, working with a template often is a good way to begin drafting an assignment and assumption agreement that will meet your needs. Generally speaking, your agreement should include the following information:

Identification of the existing agreement, including details such as the date it was signed and the parties involved, and the parties' rights to assign under this initial agreement
The effective date of the assignment and assumption agreement
Identification of the party making the assignment (the assignor), and a statement of their desire to assign their rights under the initial contract
Identification of the third party accepting the assignment (the assignee), and a statement of their acceptance of the assignment
Identification of the other initial party to the contract, and a statement of their consent to the assignment and assumption agreement
A section stating that the initial contract is continued; meaning, that, other than the change to the parties involved, all terms and conditions in the original contract stay the same

In addition to these sections that are specific to an assignment and assumption agreement, your contract should also include standard contract language, such as clauses about indemnification, future amendments, and governing law.

Sometimes circumstances change, and as a business owner you may find yourself needing to assign your rights and duties under a contract to another party. A properly drafted assignment and assumption agreement can help you make the transfer smoothly while, at the same time, preserving the cordiality of your initial business relationship under the original contract.

Drafting a Deed of Assignment

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Note: Want to skip the guide and go straight to the free templates? No problem - scroll to the bottom. Also note: This is not legal advice.

Introduction

A Deed of Assignment is a vital legal document used to transfer rights, interests or assets between parties. It is regularly used in business transactions, and often regarding real estate or intellectual property. A well-crafted deed of assignment can protect both sides from potential legal disputes, ensuring that everyone involved understands their obligations and responsibilities.

The Genie AI team has seen many instances where having a valid deed of assignment can make all the difference - without it businesses could be exposed to considerable risk. That’s why we offer free templates and step-by-step guides to help those wishing to draft their own deed.

When creating a Deed of Assignment it is important to take the specific circumstances into account - any changes or additions should be accurately documented and agreed by all involved parties beforehand. Furthermore, it is essential that the terms are clearly written out in an unambiguous way so every party knows exactly what they have signed up for. Beyond protecting both sides’ interests, this type of agreement can also be used for copyright assignments, leases, debt transfers and trusts.

Before signing on the dotted line it’s also critical that executing such documentation is done properly - all parties must sign in the presence of a witness who will also affix their signature and date the document accordingly. Once this process has been completed filings must then be made with any relevant government authorities whenever necessary (especially in cases involving real estate or intellectual property transfers).

In summary, drafting a Deed of Assignment not only safeguards everyone’s best interests but also provides additional benefits depending on its use case - reading through our step-by-step guidance below should provide you with more information on how to access our template library today and start benefitting from its advantages without needing to sign up for an account with Genie AI first!

Definitions (feel free to skip)

Legal Binding: When a legally binding document is used, it means that all parties involved are legally obligated to follow the terms and conditions set forth in the document.

Assignor: The assignor is the person who is transferring rights, interests or assets to someone else.

Assignee: The assignee is the person who is receiving the rights, interests or assets from the assignor.

Witness: A witness is an independent third-party who is present when a document is signed, in order to ensure that the process is completed in a secure and legally binding manner.

Stamp: A stamp is an official seal or mark that is used to verify and authenticate a document.

Tax: A tax is a sum of money that is paid to a government or public authority.

Duty: Duty is an obligation or responsibility assigned to someone.

Defining the Deed of Assignment

What is a deed of assignment and what is its purpose, parties involved, who needs to be involved in the making of a deed of assignment, drafting the deed, determine what kind of deed of assignment needs to be drafted, consider the subject matter to be assigned in the deed, research the legal requirements for the kind of deed to be drafted, draft the deed of assignment in accordance with the legal requirements, executing the deed, check that the parties to the deed are correctly identified, confirm that the deed is correctly signed and dated by all parties, confirm that the deed is witnessed by an independent third party, have the deed of assignment properly executed by all parties, registration, determine whether the deed of assignment needs to be registered, if registration is necessary, confirm the registration procedures, take necessary steps to register the deed of assignment, considerations, consider any applicable tax or stamp duty implications of the deed of assignment, consider any restrictions or limitations on the rights being assigned, consider whether the deed of assignment needs to be registered in any public records, common mistakes, not accurately identifying all of the parties to the deed, not having the deed properly executed by all parties, not having the deed witnessed by an independent third party, not considering any applicable tax or stamp duty implications, not considering any applicable restrictions or limitations on the rights being assigned, record keeping, ensure that the original deed of assignment is securely stored, create a digital copy of the deed and store it in a secure manner, review the deed of assignment to ensure accuracy, confirm that all steps have been completed correctly, seek advice from legal professionals if necessary, get started.

Establish the parties involved in the Deed of Assignment
Identify the property or service being assigned
Specify the terms of the assignment
Ensure the Deed of Assignment is properly witnessed
Check that all signatures are valid

When you have completed the steps above, you will have successfully defined the Deed of Assignment and can proceed to the next step.

A deed of assignment is a legal document that is used to transfer the rights and responsibilities of one party (the assignor) to another party (the assignee)
It is used to transfer contractual rights and obligations between parties
It should include information such as the names of the parties, the date of the assignment, and the description of the rights transferred
You will know that you have completed this step when you have an understanding of what a deed of assignment is and why it is used.
Identify the party transferring their rights (the assignor) and the party receiving the rights (the assignee)
Draft the deed in the name of both parties, including full names and contact details
Ensure the deed is signed by both the assignor and assignee
Once the deed is signed, the parties should exchange copies of the document

Once the assignor and assignee have been identified and the deed has been drafted and signed, you can check this step off your list and move on to the next step.

Identify the parties involved in the Deed of Assignment. This would typically include the assignor (the party transferring their rights or interest) and the assignee (the party receiving the rights or interest).
Ensure that all parties involved have the legal capacity to enter into a contract.
When all parties have been identified and their legal capacity has been verified, you can check this step off your list and move on to drafting the Deed.
Read the applicable laws in your jurisdiction to determine the required language and structure of the Deed of Assignment
Gather the necessary information on the parties, the asset being assigned, and other relevant details
Draft the Deed of Assignment, taking into account all the necessary details
Make sure the language is clear and unambiguous
Have the Deed of Assignment reviewed by a legal professional
When the Deed of Assignment has been drafted and reviewed, you can move on to the next step.
Identify the type of assignment that needs to be drafted and the legal requirements that need to be satisfied
Consider the purpose of the Deed and the rights and obligations of the parties to the Deed
Determine if the Deed is for an absolute or conditional assignment
Consider if the Deed should be an express or implied assignment
Determine if the Deed needs to be in writing or if it can be oral
Check the applicable laws in your jurisdiction to ensure that you are drafting a valid Deed
Check if there are any additional requirements that need to be included in the Deed

When you can check this off your list: Once you have identified the type of assignment and the relevant legal requirements, you can move on to considering the subject matter to be assigned in the Deed.

Identify the subject matter of the Deed of Assignment, such as a patent, trademark, copyright, or other intellectual property
Assess the value of the subject matter and any associated liabilities
Understand the relationship between the assignor and assignee
Have all necessary documents, such as a purchase agreement, to provide more detail about the assignment

Once you have identified the subject matter of the Deed of Assignment, assessed its value, understand the relationship between the assignor and assignee, and gathered any additional documents, you can move onto the next step of researching the legal requirements for the kind of Deed to be drafted.

Research the relevant legislation, case law, and other materials related to the Deed of Assignment to be drafted
Consult with a lawyer familiar with the relevant law to understand the requirements
Take detailed notes on the legal requirements that must be adhered to in the Deed of Assignment
Once you have all the necessary information, double-check that you understand the requirements before moving on to the next step.
Prepare the text of the Deed, ensuring that all relevant information regarding the parties, the subject matter, and the consideration is included
Check to make sure the language conforms with relevant laws and regulations
Have the Deed reviewed by a solicitor to ensure that it complies with all legal requirements
Once the Deed has been approved by a solicitor, have the parties sign the document
Once the Deed has been signed by both parties, make multiple copies and ensure each party has a copy
This step is complete once the Deed has been signed and each party has a copy of the document.
Ensure both parties sign the Deed of Assignment in the presence of two witnesses who are over the age of 18 and not parties to the Deed
Have both parties sign the deed in the presence of two witnesses and have the witnesses sign the deed to attest to witnessing the signature of the parties
Check that the parties have signed the Deed in the presence of the witnesses by noting the signatures and the dates of signature in the execution clause of the Deed
Once the Deed has been executed, have the parties date and keep a copy of the Deed in a secure place
You will know that you have completed this step when the Deed has been properly executed by the parties in the presence of two witnesses.
Identify all parties to the Deed and verify that their details are correct.
Ensure that all parties to the Deed are identified in the document and that the details of each party are accurate and up-to-date.
Check that the names, addresses and contact details of each party are correct.
Once you have verified that the parties and their details are correctly identified, you can move on to the next step.
Check that all parties have signed the Deed in the correct place, and that the date of signature is correct
Ensure that each party has signed the Deed in the presence of an independent witness
Check that all parties have signed the Deed with their full name and title, if applicable
Confirm that the date of signature is correct and that all parties have signed on the same date
Once you have verified that all parties have correctly signed and dated the Deed, you can proceed to the next step.
Ensure that the Deed is witnessed by an independent third party who is not a party to the Deed.
Ask the third party to sign the Deed and provide their name, address, occupation and date of signing.
Check that the third party has signed and dated the Deed.
Once the above is complete, you can check this step off your list and move on to the next step.
Obtain signatures from all parties on the deed of assignment, ensuring that each party signs in the presence of a witness
Have an independent third party witness each party’s signature
Ensure that all parties have a valid form of identification, such as a driver’s license or passport, available for inspection by the witness
Ensure that all parties sign the deed of assignment in the presence of the witness
Obtain the witness’ signature, confirming that all parties signed in the presence of the witness
You will know this step is completed once all parties have signed the deed of assignment and the witness has signed confirming they were present during the signing.
Obtain a copy of the executed Deed of Assignment from all parties
Contact the relevant state or territory office to determine whether the Deed of Assignment needs to be registered
If registration is required, complete the necessary forms, pay the registration fee, and submit the required documents
Once the Deed of Assignment is registered, the registrar will issue a certificate of registration
Check off this step when you have received and reviewed the certificate of registration.
Research the applicable laws and regulations in the relevant jurisdiction to decide if the Deed of Assignment needs to be registered
Consult a legal professional if unsure
When you have the answer, you can move on to the next step.
Confirm what type of Deed of Assignment requires registration with the relevant government agency or registry.
Research the registration procedures and the requirements you must meet in order to register the Deed of Assignment.
Obtain any fees or additional documents that are necessary to complete the registration process.
Ensure that all parties to the Deed of Assignment understand the registration process and the requirements for completing it.

You can check off this step once you have researched and confirmed the registration procedures for the Deed of Assignment.

Gather the necessary documents for registration, such as the Deed of Assignment, supporting documents, and the applicable fee
Visit the registration office to register the Deed of Assignment
Submit the necessary documents to the registration office
Pay the applicable fee
Obtain a copy of the registered Deed of Assignment
Upon completion of the above steps, you can check this off your list and move on to the next step.
Review and understand the nature of the rights and obligations being assigned
Determine if there are any restrictions or limitations in the assignment
Assess if any approvals are needed from third parties before the assignment is valid
Confirm that the assignor has the right to assign the interest being transferred
Check to see if the assignee has the necessary capacity to accept the assignment
Analyze if the assignment is subject to any applicable laws or regulations
Determine if any additional documentation is needed to support the assignment
Once you have considered all of the above, you can proceed with drafting the Deed of Assignment.
Check with your local taxation authority or a qualified tax professional to see if the Deed of Assignment is subject to any taxes or stamp duty.
Ensure that the Deed of Assignment includes any required taxes or stamp duty payments.
Check to see if the tax or stamp duty implications vary by jurisdiction.
Once you’ve considered the tax or stamp duty implications, you can move on to the next step.
Identify any restrictions or limitations that could affect the transfer of rights in the Deed of Assignment
Consider whether there are any legal restrictions that must be observed in the transfer of the rights being assigned
Research any relevant industry standards or regulations to ensure that the restrictions or limitations on the rights being assigned are compliant
Ensure that the Deed of Assignment clearly outlines the restrictions or limitations of the rights being assigned
When all restrictions or limitations on the rights being assigned are taken into consideration, checked for compliance and outlined in the Deed of Assignment, this step is complete.
Consider whether the Deed of Assignment needs to be registered with any government or public agencies.
Determine if any registration is required or optional.
Research the relevant regulations and laws to ensure that the assignments are properly recorded.
Check any local requirements or restrictions.
Once you have determined that the Deed of Assignment does or does not need to be registered, you can move on to the next step in the process.

• Read over the Deed of Assignment twice to make sure you’re accurately identifying all of the parties to the Deed. Make sure you include the full names and addresses of the assignor and assignee, as well as any other relevant parties. • Check that the legal description of the subject property is accurate. • Ensure that the consideration (the amount being exchanged for the assignment) is stated clearly and accurately. • Make sure that the names of the initial parties to the Deed are also included in the recitals. • Ensure that the recitals and the express terms of the Deed are consistent with one another. • Make sure that the Deed is signed, notarized, and delivered in accordance with state law.

Once you’ve completed the above steps, you can check off this task and move on to the next step in the guide.

Identify the assignor and assignee. The assignor is the party transferring their rights and the assignee is the party receiving the rights.
Check all of the details are correct. This includes the names, addresses and other contact information for both parties.
Draft the deed to ensure that the assignor and assignee are accurately identified.
You can check this off your list and move on to the next step once you have confirmed that the assignor and assignee have been accurately identified in the deed.
Ensure that all parties to the Deed have read, understood and agreed to the terms and conditions of the agreement.
Have all parties affix their signature to the Deed and the accompanying documents.
Check that all the signatures are dated and in the presence of a witness.
When all parties have properly executed the Deed, you can move on to the next step.
Ensure all parties have signed the Deed in the presence of a witness.
The witness must be an independent third party who is not a party to the Deed.
The witness must sign each page of the Deed that contains a party’s signature.
The witness must also include their full name, address and occupation on the Deed.
Once all of the above requirements are met, then you can check this off your list and move on to the next step.
Determine the applicable taxes or stamp duty implications for the Deed of Assignment.
Research any applicable taxes or stamp duty fees for the Deed of Assignment.
Calculate the applicable taxes or stamp duty fees for the Deed of Assignment.
Make sure to include the applicable taxes or stamp duty fees in the Deed of Assignment.

Once you have determined the applicable taxes or stamp duty implications for the Deed of Assignment, and included them in the Deed of Assignment, you can move on to the next step.

Determine the rights that you are assigning and review any applicable laws or regulations to ensure that the assignment of such rights is permitted.
Consider any applicable contractual restrictions or limitations on the rights being assigned, such as any applicable confidentiality obligations or restrictions on the transfer of rights.
Once you have determined that the assignment of the rights is permitted and there are no applicable restrictions or limitations, you can proceed to the next step of recording keeping.
Create a record of the Deed of Assignment, including the date it was executed, by each party
Maintain a copy of the Deed of Assignment in a secure place
Record any additional related documents, such as any security documents, release documents, or other agreements
When all of the above have been done, you can check this off your list and move on to the next step.
Obtain a physical copy of the original Deed of Assignment
Ensure the original Deed is signed by both parties
Keep the original Deed in a safe and secure place, such as a locked filing cabinet or safe
Make sure the document is stored in a location that is accessible to both parties
Ensure that the original Deed is not destroyed or tampered with in any way

You can check this off your list and move on to the next step once the original Deed of Assignment is safely stored in a secure location.

Scan or take a digital photo of the original Deed of Assignment and save it to a secure location.
Ensure that the digital copy is readable and clearly displays all of the information contained in the original document.
Ensure that the digital copy is stored in a secure location, preferably on a cloud-based storage system or other secure server.
Make sure that only authorized personnel have access to the digital copy of the Deed.
When finished, you will have created a digital copy of the Deed and stored it in a secure manner.
Read over the Deed of Assignment to ensure accuracy
Make sure all details are correct, and all parties are named
Verify that all signatures are complete and accurate
Make sure the date of the assignment is correct
Check that the document is formatted and laid out correctly
Once you are satisfied with the accuracy of the Deed of Assignment, you can move on to the next step.
Read through the entire document to make sure all the information is correct
Double check that the names and details of the parties involved are spelled correctly
Ensure that all the dates are accurate, and that any and all parties have signed the deed in the right places
Check that the terms and conditions in the deed are consistent with the agreement between the parties
When you have verified all the details, you can check this off your list and move on to the next step.
Check the Deed of Assignment to ensure that all required elements are present, including accurate information and signatures of all parties.
Verify that any and all attachments to the Deed of Assignment are included and accurate.
Ensure that all dates, signatures, and other pieces of information are accurate and up-to-date.
Once you’ve confirmed that all of the steps have been completed correctly, you can move on to the next step.
Seek professional advice from a lawyer or other legal professional to ensure that the deed of assignment is legally binding and enforceable.
Request that the legal professional checks that all steps have been completed correctly, and that the deed of assignment meets all requirements under local law.
Ask the legal professional to provide you with written advice on any changes or revisions that may be necessary to make the deed of assignment valid and enforceable.
Once the legal professional has confirmed that the deed is legally sound, you can check off this step and proceed with the next one.
Research legal professionals who are able to provide advice and assistance with the drafting of a deed of assignment
Contact the legal professionals to discuss the specific requirements and details of the deed of assignment
Ask the legal professionals if they are able to provide advice and assistance with the deed of assignment
Receive advice from the legal professionals and make changes to the deed of assignment accordingly
Once you are satisfied with the changes to the deed of assignment, you can move on to the next step.

Q: Does a Deed of Assignment need to be signed?

Asked by John on April 23rd 2022. A: Yes, a Deed of Assignment needs to be signed by both the assignor and the assignee in order for it to be legally binding. The signatures should be witnessed and dated, and should be in front of an independent witness who is not related to either party. It is also important to include the relevant clauses and provisions in the deed, as these will set out the rights and obligations of each party.

Q: What is the difference between an assignment and a novation?

Asked by Sarah on July 29th 2022. A: An assignment is a transfer of rights or obligations from one party to another, while a novation is a transfer of rights or obligations from one party to another with the consent of all parties involved. An assignment does not necessarily require the consent of all parties, while a novation always requires the consent of all parties. Additionally, an assignment can transfer rights or obligations without necessarily extinguishing any pre-existing agreements, while a novation extinguishes any pre-existing agreements.

Q: Is a Deed of Assignment legally binding in different jurisdictions?

Asked by Tyler on October 17th 2022. A: Yes, a Deed of Assignment can be legally binding in different jurisdictions, though the exact requirements for validity may differ from jurisdiction to jurisdiction. In general, however, a Deed of Assignment needs to be signed by both parties and witnessed by an independent third party in order for it to be legally binding. Additionally, the deed should include all relevant clauses and provisions that are applicable in each jurisdiction.

Q: Are there any tax implications when drafting a Deed of Assignment?

Asked by Emma on January 15th 2022. A: Yes, there are tax implications that need to be taken into account when drafting a Deed of Assignment. Depending on the jurisdiction and specific tax laws, there may be tax implications for both parties if they are transferring rights or obligations under the deed. It is important to seek professional tax advice before entering into any agreement that involves transferring rights or obligations between parties as this could have significant financial implications for all involved.

Q: Do I need legal advice when drafting a Deed of Assignment?

Asked by Jacob on June 5th 2022. A: While it is not necessary to seek legal advice when drafting a Deed of Assignment, it is generally recommended in order to ensure that all relevant legal requirements are satisfied and that all involved parties are aware of their rights and obligations under the deed. It is also important to make sure that all language used in the deed is clear and unambiguous so that it can easily be understood by all parties involved.

Q: How can I ensure that my Deed of Assignment is valid?

Asked by Michael on August 28th 2022. A: In order for your Deed of Assignment to be valid, it must meet certain legal requirements which vary between jurisdictions. Generally speaking, your deed should include all relevant clauses and provisions applicable in your jurisdiction as well as signatures from both parties which should be witnessed by an independent third party who is not related to either party involved. Additionally, any language used within the document should be clear and unambiguous so that it can easily be understood by all involved parties.

Q: What information do I need to provide when drafting a Deed of Assignment?

Asked by Ashley on November 10th 2022. A: When drafting a Deed of Assignment, you will need to provide information about both parties involved such as their names, addresses, contact details and any other relevant information required under applicable laws in your jurisdiction. Additionally, you will need to include any relevant clauses or provisions applicable in your jurisdiction which will set out the rights and obligations of each party under the deed as well as any other information required for the document to be legally binding.

Q: What are common mistakes made when drafting a Deed of Assignment?

Asked by Joshua on February 20th 2022. A: One common mistake made when drafting a Deed of Assignment is failing to include all relevant clauses or provisions applicable in your jurisdiction which set out the rights and obligations of each party involved in the agreement. Additionally, failing to have the document signed by both parties or witnessed by an independent third party can render the document invalid or unenforceable under applicable law in some jurisdictions. Moreover, using ambiguous language within the document can also lead to misunderstandings and disputes further down the line which could be avoided if clear language was used throughout the document instead.

Example dispute

Lawsuit referencing a deed of assignment.

The plaintiff may raise a lawsuit if they have been wronged by the defendant in a way that is outlined in the deed of assignment.
For example, the deed of assignment may outline that the defendant is responsible for paying a certain amount of money to the plaintiff, and the defendant has failed to do so.
The plaintiff may also raise a lawsuit if the defendant has failed to adhere to any other obligations laid out in the deed of assignment.
The plaintiff would need to prove that the defendant has breached the deed of assignment in order to win the lawsuit.
If successful, the plaintiff may be able to obtain a judgment in their favor, which may require the defendant to pay the plaintiff the money they are owed.
In addition, the plaintiff may be able to seek other damages, such as punitive damages, if the breach of the deed of assignment was particularly egregious.
Depending on the severity of the breach, the plaintiff may also be able to seek an injunction to prevent the defendant from continuing to breach the deed of assignment.
Settlement of the dispute may also be possible, wherein the defendant agrees to pay a certain amount of money to the plaintiff, or agrees to adhere to the obligations laid out in the deed of assignment.

Templates available (free to use)

Deed Of Assignment For Rent Deposits Occupation Lease Deed Of Assignment Of Benefit Of Claim For The Freehold Or Extended Lease House Under Section 8 Or Section 14 Deed Of Assignment Of Equitable Interest In Residential Land Deed Of Assignment Of Goodwill And Intellectual Property Rights Transfer Of A General Partnership To An Llp Deed Of Assignment Of Property Sale Benefits [Section 42 Deed Of A

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What Is the Difference Between the Deed of Absolute Sale and the Deed of Assignment?

Deeds are generally used to prove a transfer of real estate.

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1. Certificate of Title Vs. Deed
2. Assignment of Deed of Trust Vs. Deed or Grant Deed
3. What Is a Quitclaim Assignment?

The deed of absolute sale, which is used in most real estate purchases, transfers property without any conditions beyond satisfaction of the purchase price. A deed of assignment, by contrast, can be used any time one party wants to transfer contractual rights to another. Deeds of assignment are common between mortgage lenders.

The difference between a deed of sale and a deed of assignment is that the deed of sale is used once and has no conditions other than the purchase price of the property, while the deed of assignment can be used anytime to transfer contractual rights from one party to another.

Absolute Sale Deeds

The deed of absolute sale is used in many real estate sales. A deed is a document that states that one party is transferring his real estate property rights to another. The deed proves the transfer, but, if properly recorded with the county recorder, it serves to give other prospective purchasers notice that all of the seller's rights in the property have now passed on to another party. An "absolute sale" deed is defined by having no conditions attached to the sale except the buyer's payment of the purchase price. When the seller signs and delivers the absolute sale deed, this is generally recognized by law as the moment of sale.

Deed Requirements

To be valid, an absolute sale deed must clearly describe the property being transferred, either by address or other distinguishing information. The deed must also clearly identify the seller and purchaser, the date on which the transfer becomes legally effective and pertinent information such as the purchase price. In modern real estate transactions, the parties often get around trying to cram all of this information into the deed by having an ancillary real estate sales contract. However, the deed must reference the information contained in the contract.

Understanding Assignment

Assignment is slightly different from an outright transfer. An assignment occurs when two parties are in a contractual relationship and one party wants to give all of his contractual rights to a third party and entirely remove himself from the contract. The new party, known as the "assignee," effectively replaces the old contracting party, taking on not only his rights under the contract but his obligations as well. Typically, unless the original contract states otherwise, both parties to the original contract must approve an assignment before it can take place.

Deed of Assignment

The deed of assignment is the document used to transfer the contracting party's rights. The parties may also choose to accomplish assignment via an assignment contract. In real estate, the deed of assignment often shows up in mortgage transactions. Mortgage lenders hold certain rights to property, notably the right to foreclose if the borrower fails to make payments. Lenders frequently wish to sell or purchase rights in a mortgaged property. The deed of assignment transfers or "assigns" the seller's rights in the property to another lender.

U.S. Legal: Absolute Sale Law and Legal Definition
U.S. Legal: Assignments
NOLO: What's the Difference Between a Mortgage Assignment and an Endorsement (Transfer) of the Note?
The Free Dictionary: Absolute Deed
Reference: What Is a Deed of Assignment?

Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.

Certificate of title vs. deed, assignment of deed of trust vs. deed or grant deed, what is a quitclaim assignment, warranty deed vs. deed of trust, what are instruments of conveyance & transfer, what is the redemption period in tennessee, is it necessary to have an attorney at closing in florida, what is an assignment of trust deed, what is an authorization to release from a short sale, the seller's rights in a land contract mortgage, foreclosure right of redemption & tenant's rights in maryland, what does the 45 days mean on the short sale addendum.

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Deed of Assignment and the Notice of Assignment -What is the Difference?

In this article, Richard Gray barrister takes a brief look at the differences between a Deed of Assignment and a Notice of Assignment and the effect of the assignment on the contracting party

At the end of 2020, Elysium Law were instructed to act for a significant number of clients in relation to claims made by a company known as Felicitas Solutions Ltd (an Isle of Man Company) for recovery of loans which had been assigned out of various trust companies following loan planning entered into by various employees/contractors.

Following our detailed response, as to which please see the article on our website written by my colleague Ruby Keeler-Williams , the threatened litigation by way of debt claims seem to disappear. It is important to note that the original loans had been assigned by various Trustees to Felicitas, by reason of which, Felicitas stood in the shoes of the original creditor, which allowed the threatened action to be pursued.

After a period of inertia, Our Clients, as well as others, have been served with demand letters by a new assignee known as West 28 th Street Ltd . Accompanying the demand letters is a Notice of Assignment, by reason of which the Assignee has informed the alleged debtor of the Assignees right to enforce the debt.

Following two conferences we held last week and a number of phone call enquiries which we have received, we have been asked to comment upon the purport and effect of the Notice of Assignment, which the alleged debtors have received. Questions such as what does this mean (relating to the content) but more importantly is the ‘Notice’ valid?

Here I want to look briefly at the differences between the two documents.

There is no need for payment to make the assignment valid and therefore it is normally created by Deed.

The creation of a legal assignment is governed by Section 136 of the Law of Property Act 1925:

136 Legal assignments of things in action.

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

Some of the basic requirements for a legal assignment are;

The assignment must not be subject to conditions.
The rights to be assigned must not relate to only part of a debt, or other legal chose in action.
The assignment must be in writing and signed by the assignor.
The other party or parties to the agreement must be given notice of the assignment.

Notice of assignment

To create a legal assignment, section 136 requires that express notice in writing of the assignment must be given to the other contracting party (the debtor).

Notice must be in writing

Section 136 of the LPA 1925 requires “express notice in writing” to be given to the other original contracting party (or parties).

Must the notice take any particular form?

The short answer is no. Other than the requirement that it is in writing, there is no prescribed form for the notice of assignment or its contents. However, common sense suggests that the notice must clearly identify the agreement concerned.

Can we challenge the Notice?

No. You can challenge the validity of the assignment assignment by ‘attacking the Deed, which must conform with Section 136. In this specific case, the Notice sent by West 28 th Street in itself is valid. Clearly, any claims made must be effected by a compliant Deed and it is that which will require detailed consideration before any right to claim under the alleged debt is considered.

Can I demand sight of the assignment agreement

On receiving a notice of assignment, you may seek to satisfy yourself that the assignment has in fact taken place. The Court of Appeal has confirmed that this is a valid concern, but that does not give an automatic right to require sight of the assignment agreement.

In Van Lynn Developments Limited v Pelias Construction Co [1969]1QB 607 Lord Denning said:

“After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid…”

The Court of Appeal subsequently confirmed this stating the contracting party is entitled to satisfy itself that a valid absolute assignment has taken place, so that it can be confident the assignee can give it a good discharge of its obligations

The important document is the Deed of Assignment, which sets out the rights assigned by the Assignor. The Notice of Assignment is simply a communication that there has been an assignment. The deed is governed by Section 136 of the LP 1925. It should be possible to obtain a copy of the Deed prior to any action taken in respect of it.

For more information on the claims by West 28 th Street or if advice is needed on the drafting of a Deed, then please call us on 0151-328-1968 or visit www.elysium-law.com .

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Deeds: clearing the confusion on what a deed is, when to use one and why

My word is my bond

Creating a deed, delivering a deed, what are the advantages of a deed, why and when to use a deed, more information and useful legal documents.

This article tells you how to create a deed and when you should use one. It also tells you the advantages of using a deed over an agreement.

The law at its most basic is that if you put your name to a document you are bound by it. Today you can also be bound by an electronic signature provided it is clear that you intended to be bound.

Lawyers like certainty and safety, so they often use a deed because it costs nothing to do so, avoids the slightest risk, and adds an aura of legal mystery.

Deeds are often used unnecessarily. This article explores the real differences between the two and explains when to use a deed.

In any UK jurisdiction, a document need only be 'signed as a deed and delivered' to be a deed.

Signature by the maker

Signing as a deed requires those very words above to be written on the document and the signature of the person making the deed.

The signature should be on the document itself approximately in the space provided.

The words of execution should name the signatory or otherwise make clear who has signed the document.

For obvious reasons, the signature ought to be in ink or some other indelible medium.

Witnessing the signature

The signature should be witnessed.

The witness must write their name and address below or very near the maker's signature.

The law says that the witness must 'sign'. But that means they must write their name legibly, not sign their signature. Nowadays, we are so used to the word 'sign' meaning to make a unique mark that identifies us, that we forget that the purpose of a witness signing is to identify who saw the person making the deed doing so.

For the witness signature, an illegible scribble is not satisfactory because they are not a party to the document. They are there to be able to confirm at a later date, that the person who signed was the person named. An illegible signature would not help to find the witness! The witness must also add their private address - again to facilitate finding them later.

So that the witness is impartial, it is best that they are not a spouse or close relative or a life partner either.

Most deeds also use the word 'deed' in their title (such as in 'deed of change of name'). That is helpful, but not strictly necessary.

Long ago, it was necessary to confirm delivery by spoken words as well as by handing your deed to your counter party.

Gradually, the process has become simpler. Now, all that is required is to demonstrate an intention to be bound by the deed in order for delivery to take place. You do not need spoken words. It is enough to hand over the keys, or take some other action indicating your intention.

So, although delivery has become virtually taken for granted, it is still good practice to use the words 'and delivered' in the attestation at the end.

There are several but only one is important:

The witness supports who signed

Signing as a deed requires a witness, and having a witness around makes it very difficult indeed for anyone to deny that such a document was properly signed and as to when it was signed. That was more important before the days of electronic communications, but the principle is the same today.

The other less important reasons are:

No consideration required

A deed is binding without 'consideration'. That means one party (or maybe more than one if there are many parties) gives no value.

Deeds are often mistakenly used instead of an agreement under hand because consideration required in an agreement is assumed to be money or equivalent (market) worth. However, value is rarely a problem and shouldn't be a deciding factor in whether to sign the document as a deed. Consideration can be any value, whether 'a peppercorn', or 'one pound' or 'the goodwill I know this gift will foster'.

A deed only requires one party

You can have a single party to a deed. An agreement under hand requires at least two parties (because you cannot agree with yourself to do something).

Longer enforcement period

You have 12 years in which to enforce the breach of a term in a deed. It is six years in an agreement under hand.

When you transfer or charge land

Because a witness adds certainty to signature and date, every 'instrument' creating, conferring or transferring an interest in real property must be a deed.

That has been the case for centuries, but it is stronger than ever now because any such interest must be registered and the Land Registry will not register an interest conferred by an instrument signed under hand.

For example, if you create a declaration of trust in a property , you must do so by using a deed.

If your agreement might come before a foreign court

Many foreign jurisdictions still work in the Dark Ages, so you are less at risk from nasty surprises if you use a deed - or at least have witnesses to the signatures on your agreement.

When you are the only party to a document

For example, if you set up a trust or change your name.

To confirm a defective agreement

For example, when the consideration has already been given or exchanged and is therefore 'past consideration'.

When you assign or transfer a 'chose in action'

A chose in action, for simplicity, is 'an intangible, property right, enforceable at law'. An example is an insurance policy.

The only way to transfer every legal right in a debt to someone else would be by a novation. That means an agreement signed by the original parties and the new assignee.

A novation agreement is often impractical, because it requires the transferring parties to find the other party and obtain their consent and signature. For example, insurance companies have no desire to run up and down the country signing novation agreements with everyone who ever wants to transfer a policy. So instead they accept notice of the deal provided the document of transfer is a deed. So a 'deed of assignment' must assign either real property or a chose in action where the use of a deed has become generally accepted and usual.

Less consistently than insurance companies, a bank may accept a document to which it is not a party, only if it is a deed. The reason is that they feel more comfortable with the additional security provided by a witness.

Because the only way to transfer every legal right is by a novation agreement, that is what you should use whenever it is possible to do so. That means use it whenever all three parties can get together and agree. By now you will have gathered that a novation need never be by deed. No witness can improve on the security provided by all three parties signing the document to confirm their agreement. You cannot be much safer in accepting a document than when it has been signed by three unconnected people, so it is strange that one of the only agreements that cannot be improved by using the deed form, is often referred to as a 'deed of novation'.

In practice, the following are good rules of thumb.

Use a deed to evidence a gift because the donor (the giver) and the donee (the receiver) may be connected.
When you assign an interest in a lease, use the three-sided 'consent to assignment', which is a novation by another name.
If you sign an agreement, it may not be effective until you exchange for a copy signed by the other side, or until they sign the same document. Not so a deed: it binds you immediately, even if there other side has not yet signed or there remains an unfulfilled obligation by them.
If you assign without the express consent of the third party, the third party learns of the assignment and continues to act as before, they thereby confirm acceptance. (Example: sale of a block of telephone contracts, where the customers make payment to the assignee, who continues to provide the service).
In an agreement under hand, 'past consideration is no consideration'. The value transferred in any contract must be current or future. The agreement is otherwise void. But in a deed, consideration is not relevant.
An instrument transferring an interest in land (meaning real estate) must be a deed. Although many simple agreements may be registrable as a notice or low level charge, you will always be safer if you use a deed whenever you may need Land Registry registration.
By Section 44(5) of the Companies Act 2006, in favour of a purchaser (in good faith for valuable consideration), a document signed on behalf of a company by two authorised signatories, or by a director in the presence of an attesting witness, is deemed to have been duly executed by the company even if the signatory had no authority to sign or enter into the transaction concerned.
Your will is different. The rules on signing and witnessing (attesting) a will are precise, strong and different.

If you are interested in transferring property, you may be interested in an agreement to assign a lease or an assignment agreement for a life insurance or endowment policy .

We also stock a number of novation agreements .

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Assignment is a legal term whereby an individual, the “assignor,” transfers rights, property, or other benefits to another known as the “ assignee .” This concept is used in both contract and property law. The term can refer to either the act of transfer or the rights /property/benefits being transferred.

Contract Law

Under contract law, assignment of a contract is both: (1) an assignment of rights; and (2) a delegation of duties , in the absence of evidence otherwise. For example, if A contracts with B to teach B guitar for $50, A can assign this contract to C. That is, this assignment is both: (1) an assignment of A’s rights under the contract to the $50; and (2) a delegation of A’s duty to teach guitar to C. In this example, A is both the “assignor” and the “delegee” who d elegates the duties to another (C), C is known as the “ obligor ” who must perform the obligations to the assignee , and B is the “ assignee ” who is owed duties and is liable to the “ obligor ”.

(1) Assignment of Rights/Duties Under Contract Law

There are a few notable rules regarding assignments under contract law. First, if an individual has not yet secured the contract to perform duties to another, he/she cannot assign his/her future right to an assignee . That is, if A has not yet contracted with B to teach B guitar, A cannot assign his/her rights to C. Second, rights cannot be assigned when they materially change the obligor ’s duty and rights. Third, the obligor can sue the assignee directly if the assignee does not pay him/her. Following the previous example, this means that C ( obligor ) can sue B ( assignee ) if C teaches guitar to B, but B does not pay C $50 in return.

(2) Delegation of Duties

If the promised performance requires a rare genius or skill, then the delegee cannot delegate it to the obligor. It can only be delegated if the promised performance is more commonplace. Further, an obligee can sue if the assignee does not perform. However, the delegee is secondarily liable unless there has been an express release of the delegee. That is, if B does want C to teach guitar but C refuses to, then B can sue C. If C still refuses to perform, then B can compel A to fulfill the duties under secondary liability.

Lastly, a related concept is novation , which is when a new obligor substitutes and releases an old obligor. If novation occurs, then the original obligor’s duties are wiped out. However, novation requires an original obligee’s consent .

Property Law

Under property law, assignment typically arises in landlord-tenant situations. For example, A might be renting from landlord B but wants to another party (C) to take over the property. In this scenario, A might be able to choose between assigning and subleasing the property to C. If assigning , A would be giving C the entire balance of the term, with no reversion to anyone whereas if subleasing , A would be giving C for a limited period of the remaining term. Significantly, under assignment C would have privity of estate with the landlord while under a sublease, C would not.

[Last updated in May of 2020 by the Wex Definitions Team ]

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SUMMARY OF DIFFERENCE BETWEEN CONTRACT OF SALE AND DEED OF ASSIGNMENT

Contract of sale and deed of assignment are both documents used in real estate-related transactions in Nigeria. Although they are both used in property transactions the difference between both documents can be derived from their distinctive features and the role they each individually play in the acquisition of title to landed properties in Nigeria.

Generally, there are five stages involved in the process of acquisition of land in Nigeria, which range from the pre-contract stage to the post-completion stage. The contract of sale is executed at the second stage of a land transaction; it is evidenced in writing and is not mandated to be under seal. It is a preliminary land document executed in the transfer of ownership in the land to another from the seller to the buyer. A contract of sale takes effect after it has been exchanged between parties and it contains not only the basic requirements but goes further to include detailed terms, consideration, and future obligations of what the parties have agreed in respect of the land transaction. Some of the provisions of a contract of sale are:

Full details of the parties – (name and address).
Particulars of the property to be transacted (location, survey plan, etc).
Particulars of witnesses.
Purchase price of the property.
Payment of deposit, to whom it is to be paid, and in what capacity.
Balance and interest on unpaid purchase sum where the payment is to be paid in installments.
The capacity of the vendor.
Risk and insurance.
Possession before completion
Completion date of the transaction.
Provision for fixtures and fittings.
Specific terms, risks, etc.

Where a contract of sale has been executed between parties, an equitable right of the title is passed to the buyer as the vendor still retains legal title to the land and holds the same in trust for the buyer. A vendor cannot transact with the land contrary to the agreement in the contract and no party can rescind the contract without being held liable for a breach of contract.

Features of a Contract of Sale

In a contract of sale, the vendor is committed to the transaction and the purchaser has sufficient time to investigate the title before the final completion of the transaction.
The death of either party to the transaction does not terminate the contract as personal representatives can proceed with the contract of sale.
A contract of sale prevents last-minute withdrawal as withdrawal would amount to a breach of the contract.
A contract of sale protects the equitable interest of the purchaser
It crystallizes the position of the parties as terms have been expressly agreed upon.
The vendor cannot unilaterally and subsequently increase the purchase price as the price has already been fixed in the contract.
Payment of lesser stamp duties.

Deed of Assignment is the legal instrument executed between a buyer and seller upon the negotiation and completion phase of a sale of land transaction, subject to perfection. It is usually demanded by the buyer of the real property at the conclusion of the property transaction as the final legal document that transfers the interest of title in a land without any conditions attached, beyond the payment of the consideration price of the property. In a deed of assignment, the nomenclature of parties changes from Vendor to Assignor and Buyer to Assignee. Upon the execution of a deed of assignment between parties, there is a permanent transfer of legal title and ownership to land from the assignor to the assignee for a consideration paid and accepted by the assignor.

Deed of assignment is required to be evidenced in writing; to be signed, sealed, and delivered by parties to the transaction. A deed of assignment is said to have been delivered when interest has passed to the Assignee and the interest can be passed with or without a physical handover.

Another major difference between a contract of sale and deed is that under a deed of assignment, the title of land acquired is required to be perfected upon payment of the full consideration and execution of the deed. The perfection of title involves the assignee taken the required steps to register the deed of assignment at the appropriate Land Registry. The process for the perfection of a deed of assignment involves the following three steps;

Obtaining Governors Consent.
Stamping of the deed of assignment, and
Registration of the deed of assignment.

Finally, in a contract of sale, the buyer only acquires equitable interest in the property while the seller retains the legal interest in trust for the buyer. In the deed of assignment, the assignee acquires legal interest in the property and it can serve as a good root of title to subsequent buyers while the interest of the assignor on the same property is completely extinguished.

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What is Deed of Assignment for Flat?

A Deed of Assignment for flat is a very important document in the process of transfer of flat property ownership. This document legally transfers ownership from the assignor to the assignee. But what exactly is an assignor and assignee, and what are the important points to include in a deed of assignment?

Important Points

Meaning of Assignor and Assignee

An assignor is a person who currently owns the flat property and is transferring its ownership to another person. The assignee is the person who is receiving the flat property ownership. The deed of assignment for flat is the document that legally transfers property ownership from the assignor to the assignee.

Meaning of Deed of Assignment for flat

The Deed of Assignment for flat is a legal instrument that formalizes the transfer of flat property ownership from the Assignor (owner) to the Assignee (purchaser). The document acts as evidence of the transfer of flat property ownership and is used to protect the rights and interests of both parties.

Some Key Points in the Deed of Assignment

When creating a deed of assignment for flat, it is important to include several key points to ensure that the transfer of flat ownership is legally binding and properly documented. Here are some examples of important points to include:

Description of the flat/property

The deed of assignment for flat should include a detailed description of the property being transferred. This can include information such as the address, size, and any unique features of the property.

Flat/Property construction details

It is also important to include information about the construction of the flat property, such as the name of the constructor and details about the plan approval, commencement and completion certificates, etc.

Information of the Society

The deed of assignment for flat should include information about the society, like, the society name, and its registration number.

Prior transaction history of the property

The deed of assignment for flat should include information about any prior transactions that happened on the flat property. This can include information about how the existing owner has received the ownership and all the references about previous transactions.

Consideration amount and payment details

The deed of assignment for flat should include information about the consideration amount (i.e. the amount of money being paid for the property), the mode of payment, and any details about the payment schedule.

Acknowledgment of payment

The Deed of Assignment for flat should also include a clause where the Assignor gives an acknowledgment that he/she has received the agreed consideration amount from the Assignee. This will help in avoiding any disputes in the future regarding the payment made for the property. It is essential to ensure that the consideration amount has been received in full and that the Assignor has no further claims to the property.

Assurances and indemnification by the assignor

One of the most critical aspects of a Deed of Assignment for flat is the assurances and indemnification provided by the Assignor to the Assignee. The Assignor must assure the Assignee that the property being transferred is free from any encumbrances or legal issues. The Assignor’s assurance declares that the property is not subject to any liens, leases, mortgages, or other agreements that may impact the transfer of the property. Moreover, the Assignor must confirm that the property is not the subject of any court litigation, and they hold the title of the property free and clear. This assurance guarantees that the property being transferred has a clean title, and there are no legal disputes attached to it.

Assurance of no payment dues

The Assignor must assure the Assignee that there are no outstanding dues or pending payments towards any electricity charges, piped gas connection charges, Society maintenance charges, property taxes, and other charges, all taxes and dues in the respect of the property as of the date of execution of the Deed of Assignment for flat. The Assignor should further declare that in case any dues or taxes remain unpaid till the date of execution of the Deed, he/she will pay the same without any objection or dispute.

Assignor’s promise to co-operate with assignee

The assignor should promise to co-operate with the assignee in the future if any documents need to be signed or if any other actions are required to transfer ownership of the flat property. For example – cooperation for enrolling the Assignee’s name as owners of the property in all Government records, society records, Property Tax & M.S.E.B., etc. as & when be required.

Governing law in case of any dispute

The deed of assignment for flat should specify the governing law that will be used in case of any disputes between the assignor and the assignee.

Execution in the presence of witnesses

Finally, the deed of assignment for flat should be signed (executed) by both the Assignor and the Assignee in the presence of witnesses. This ensures that the transfer of ownership is legally binding.

Registration and Stamp Duty

After the Deed of Assignment for flat has been signed by both the parties (assignor and assignee), it must be registered in the sub-registration office. In Maharashtra, the stamp duty for registration is calculated based on the consideration price or the government valuation of the property, whichever is higher. This is an important step to ensure that the transfer of ownership is legally recognized and that the rights and interests of both parties are protected. Proper registration of the Deed of Assignment will also prevent any future disputes or legal complications.

The deed of assignment for flat plays a vital role in transferring the ownership of a property. The document is a legally binding agreement that protects the interests of both the Assignor and the Assignee. It is important to include the above-mentioned important points. Additionally, registering the deed of assignment in the sub-registration office and paying the applicable stamp duty is mandatory.

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Tanny --> 12 December 2016

Sale deed versus deed of assignment

While buying a resale property in a co-operative housing society, I have differing opinion on whether a "sale deed" is appropriate of a "deed of assignment" is appropriate. I consulted several people from legal profession and opinion seems to be divided with some saying Sale Deed is mandatory, some saying Deed of Assignment is ok and some even suggesting rather absurdly - "you tell us what you want and we will do that for you".

My question is - I am looking for specific guidance of whether I register my agreement with a Sale Deed or with a Deed of Assignment. Please can you guide.

10 Replies

Ms.Usha Kapoor (CEO) --> 13 December 2016

First draft asale deed and thendraft adeed of Assignment and register both of them.If you appreciate this answer please give me all my profile likes.

Kishor Mehta (CEO) --> 13 December 2016

Kumar Doab (FIN) --> 13 December 2016

Agreed with Mr. Kishore Mehta.

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 ) --> 13 December 2016

In real property transactions, a deed of assignment is a legal document that transfers the interest of the owner of that interest to the person to whom it is assigned, the assignee. When ownership is transferred, the deed of assignment shows the new legal owner of the property.

An "absolute sale" deed is defined by having no conditions attached to the sale except the buyer's payment of the purchase price. When the seller signs and delivers the absolute sale deed, this is generally recognized by law as the moment of sale.

Tanny --> 13 December 2016

Thank you for explaining the difference between a Sale Deed and a Deed of Assignment. However could you explain in my case which is the one I would go for?

rajeev sharma (Advocate Ex senior manager law ) --> 13 December 2016

please ask reseller what document the builder has executed in his favi\our .if it is sale deed then dont compromise get sale deed executed in your favour

even the seller has a deed of assignment from his previous purchase. In that case will a sale deed or a deed of assignment be appropriate?

Adv. K.S.A.Narasimha Rao ([email protected] ) --> 13 December 2016

Dear Tanny,

Basing on the rights possessed by your prospective seller, the nominclature of the document depends on.

If your Prospective Seller is having only right of possession in respect of the property, then he can only make a deed of Assignment. But if your Seller is having absolute powers to sell the flat, then you can use nominclature as "Sale Deed".

Kindly clarufy if the deed of assignment be cancelled by assignor.

Aseem Koradia --> 15 December 2016

The name of document is immaterial. The content of the document will remain the same. interpretation will be from the content of the document.

Aseem Koradia

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