Oral Gifts of Real Estate
In general, one obtains title and ownership of real property by deed in Missouri (e.g., quitclaim deed, general warranty deed, beneficiary deed, special warranty deed, trustee deed, etc.). There are situations, however, when one can obtain title to real property without a traditional deed . Adverse possession is a prominent example of this. Another less common example is ownership through an oral gift.
Contracts relating to an interest in real estate generally need to be in a signed writing to be enforceable under the statute of frauds. An oral gift would obviously be an exception to this. To prove a gift of land, it is necessary for the proponent to prove that he/she immediately took possession. Ortmeyer v. Bruemmer, 680 S.W.2d 384, 390 (Mo. Ct. App. 1984). There must be evidence that there was a clear intent on the part of the donor (i.e., the person making the gift) to pass title immediately and to relinquish all control. In re Estate of Petersen, 295 S.W.2d 144, 150 (Mo. 1956). While these cases are quite rare, they typically involve situations where the donee (i.e., the person receiving the gift), induced by a promise of the gift, takes exclusive possession of the land and makes valuable and permanent improvements on it, rendering it inequitable for the donor to deny the gift or to rely upon the statute of frauds.
These cases are difficult to prove. They must be shown by clear and convincing evidence. This is particularly true when the gift is not asserted until after the donor’s death in that the law treats the claim with more suspicion when the claimed donor is no longer alive to testify at to the existence of any gift. Instead of a deed, a person who obtains title to real property via oral gift often does so through a petition to quiet title filed in the correct circuit court.