204 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
these elements exist, no gift has occurred. But once all of these elements
are in place, the resultant gift of property is valid as between the parties to
the transaction, as irrevocable as if the recipient had obtained title by virtue
of a contract.”5
DELIVERY
To make an inter vivos gift of a chattel, the donor must normally deliver possession
of the chattel to the donee. Alternatively, the donor can create an
inter vivos trust in favour of the donee, whereby the chattel is delivered to
the trustee to be held in trust for the beneficiary.
To make an inter vivos gift of land, the donor cannot actually deliver
physical possession of the land to the donee.6 Many centuries ago, a freeholder
in possession had to transfer title by “feoffment with ‘livery of
seisin’”. Seisin was the possession of the freeholder. The first-year Property
Law materials sometimes used at Allard Law, originally authored by Professors
Todd and McClean, provide: “Livery of seisin was an actual physical
delivery of the property. The parties paced the boundaries and the transferor
handed over pieces of earth to the transferee as a symbol of the transfer.
The transferor then left the property at once leaving the transferee in
possession.”7
Today in British Columbia, we use an electronic form of instrument that
will be registered at the LTO to accomplish the transfer. Pursuant to s. 15(1)
of the Property Law Act (“PLA”), “land may be transferred in freehold only
by an instrument expressed to transfer the land”.8 Such a shame: we can no
longer hand over a chunk of dirt for an effective conveyance or gift of land.
Section 16 of the PLA provides that the instrument need not be executed
under seal.9 Until late in the 20th century, that instrument in British Columbia
was a deed. Now it is a Form A Transfer (“Form A”) (a particularly creative
name) pursuant to s. 185 of the Land Title Act (“LTA”);10 I will leave the
discussion of registration of the Form A until Part II of this article. Alternatively,
as is the case for a chattel, the donor can create an inter vivos trust in
favour of the donee, whereby the land is held in trust.
MAKING A TESTAMENTARY GIFT OF LAND
There are three times when you can make a gift of land: when you are alive
and competent (inter vivos), when you are alive but think you will be dying
imminently (donatio mortis causa, also inter vivos) and on your death (testamentary).
I will leave the subject of donatio mortis causa to another time, as
I just do not want to think about it.11
I will start with a gift of land on death.12 As e.e. cummings observed: