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The Rules of Constructive Delivery

The following is a transcript of "The Legal Lad's Quick and Dirty Tips for a More Lawful Life," a podcast from QuickAndDirtyTips.com. The audio program is available via RSS feed here and at TheStreet.com's podcast home page.

Hello, and welcome to Legal Lad's Quick and Dirty Tips for a More Lawful Life.

But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Today's topic is constructive delivery. Maria wrote:

Last week, I signed up with a rental agency to help me find an apartment. I found a great place and told the rental agent that I wanted it. The agency approved me, and gave me the lease to sign, which I did. I gave the lease back to the agency to get the owner to sign. The owner signed it and gave it back to the rental agency, but the agency never gave it back to me. The bottom of the lease said that the lease was not effective until the signed lease was "delivered" to me by the owner, and that the owner could still find other renters between the time he signed it and "delivered" it.

After he signed the lease, the owner found a family friend that wanted to live in the apartment, and told the agency not to give the lease to me. Now, he will not honor my lease because the rental agency never gave the signed lease back to me. The owner says that he never "delivered" the lease because he only gave it back to the rental agency, but not to me. Is this fair?

Maria has effectively asked whether the act of handing the signed lease back to the rental agency constitutes "delivery" under the law. The short answer to your question is that what the owner is doing is not only unfair, but violates the terms of the contract. When the owner signed the lease and gave it back to the rental agent for the purpose of giving it back to you, the owner delivered the lease and the contract became binding on both of you.

Delivery of documents under the law can be either actual or constructive. Actual delivery is easy to spot; it occurs when someone physically hands you a document with the intent to hand it over. So, if the owner had signed the lease and handed it back to Maria, then actual delivery would have taken place, and the lease would have become immediately effective.

But under the law of most states, delivery is not confined to physically handing something over. Rather, delivery is a question of intent. Constructive delivery occurs when a person shows a present intent to unconditionally divest himself of his property, and to relinquish all control over it. When the owner signed the document and gave it to the rental agency with the intent that the agency would pass it along to Maria, the owner constructively delivered the leasehold interest to Maria.

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