Article: Can Parents Sell Their Children’s Property? A Property Law Perspective

Christmas arrives. Nicki’s nine-year-old son receives a gaming console and many soft toys as Christmas gifts from his doting relatives, each of them delivering the gift right into her son’s hands. Nicki, however, is annoyed. Her son has far too many soft toys: his entire room is covered in them. Nor does her son need a gaming console; he already spends too much time playing games and not enough time doing school homework. What can Nicki do? Can she sell the items, even if her son holds title to them? Will title pass unimpeachably to the purchaser?

These simple but relatively neglected issues are the subject of this article. This article focuses on one key question: do parents with parental responsibility have powers to sell their minor children’s property? Despite the importance of the topic, the law’s position is unclear. Much of the existing academic literature and case-law is sparse, often tentative, and polarised.

From a property law perspective, the common assumption is that parents do not have such powers. Nemo dat quod non habet: one cannot give what one does not have. If parents do not themselves hold the relevant property rights, how can they have powers to give those rights to a purchaser?

The central claim of this article is that, contrary to the prevailing wisdom, parents with parental responsibility should, and plausibly already do, have the power to sell property held by their minor children (ie those below 18). The source of parents’ powers to sell their minor children’s property lies not in the general law of agency or trusts but is best understood as located in the special powers that parents and other guardians of minor children have in respect of their children’s property at common law. The history of parental and non-parental guardianship, modern cases on overseas property, and the justifications for parental powers are discussed. However, although such parents should have such powers, these powers are constrained, most notably by statute and fiduciary law. These arguments have important practical implications for purchasers, children, and parents alike.