Drafting a Deed of Gift Agreement
Many people wish to donate items to a charitable group, university, or other organization at some point or another. Such items may include historical documents, recordings, photographs, and anything else that might be important to posterity. Sometimes, individuals wish to donate items without any restrictions, since they are simply happy to be rid of the things to be donated. However, drafting a deed of gift agreement that covers all expectations is important for donors who wish to preserve their rights.
Intellectual Property
One important consideration when drafting a deed of gift agreement is whether the donation will also transfer intellectual property. Depending on the items transferred, there may be intellectual property considerations such as copyright issues, trademark matters, and other considerations. Some people are fine simply transferring items along with any intellectual property that might be attached to the things to be transferred. However, other donors simply wish to transfer a possessory interest in the property while retaining all intellectual property rights. The intellectual property rights involved with items is a fact-sensitive inquiry, so it is important to consult with an experienced lawyer if you wish to preserve intellectual property rights after a donation.
Return of Items
Another critical consideration to keep in mind when drafting a deed of gift agreement is what rights the parties should have concerning a return of items. Oftentimes, an institution that received donated items may not wish to keep some or all of the items to be donated. In some cases, the items are not deemed to have enough significance to be kept in a collection, and other times, the organization just does not have enough space to house the item. Deed of gift agreements usually discuss whether rejected items are merely discarded or if they are returned to the person who donated the items. If items are returned, it is usually at the cost of the party who donated the items, but this can be negotiated.
Sometimes, donors may wish to specify a right to ask for the return of items after the items have been selected for inclusion in a collection. Organizations may not wish to grant such a right, since needing to return items at the whim of a donor may interrupt their operations. However, such a right may provide a donor the comfort they need to part with items, since they can ask for their return at a later point in time.
Access to Items
Parties oftentimes negotiate who will have access to donated items when drafting a deed of gift agreement. Many deed of gift agreements provide that anyone can access the collection that is donated to an institution. In this situation, the organization will make the donated items available pursuant to the policy of all of the other items donated to the organization. However, sometimes donors do not wish for certain groups or people who express certain ideologies to access items. This is oftentimes because the donating party has been antagonized by people of certain ideological backgrounds in the past and does not wish for their items to be used against them by antagonizes. However, it is practically difficult for institutions to restrict certain groups of people from accessing donated items, so donors should consider making their donation available to everyone in most circumstances.
Representations
The parties drafting a deed of gift agreement also include various representations between the donor and the organization receiving the donation. The donor typically states that the donor has the authority to provide the donation and that they own the items to be donated free and clear of any liens or other encumbrances. The donor may also need to defend and indemnify the organization accepting the donation if this turns out not to be true and the organization suffers damages. In addition, the institution receiving the donation may represent that it has the authority to accept the items and has the expertise needed to collect and organize the items. Depending on a number of circumstances, the parties may also need to make other representations to each other.
Miscellaneous Provisions
When drafting a deed of gift agreement, the parties may include a number of miscellaneous provisions. For instance, donations often involve donors located in a different state than the institution to which the items are being donated. As such, the parties may wish to specify which state’s law governs the agreement and where lawsuits may be filed if there is a disagreement about the agreement. Moreover, the parties may specify that all of the signatories on behalf of both the donor and institution to which the items are donated have the authority to bind each party to the agreement. In addition, other provisions may specify what happens when the donor passes away or if the institution receiving the donation stops operating. Different provisions may be added to a deed of gift agreement depending on the unique circumstances of a matter, so parties should consult with an experienced attorney who understands all of the issues.
The Rothman Law Firm has substantial experience drafting deed of gift agreements and handling other related legal issues. If you are looking for an experienced New York and New Jersey attorney to draft your deed of gift agreement or handle another legal issue, please feel free to contact The Rothman Law Firm to request a free consultation.