rebuttable presumption

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rebuttable presumption

A law of evidence that something will be considered true (the presumption) until it is proven untrue (rebutted).When a rebuttable presumption has been created,it normally shifts the burden of proof to a different party than would normally have it. For example,

• In some jurisdictions, if a bankrupt debtor company owns only one asset, and that asset was transferred to the company shortly before it filed for bankruptcy, then there is a rebuttable presumption that the transfer was fraudulent and intended to isolate that one asset and its creditors from other assets belonging to the original owner. The debtor must prove the transfer was not fraudulent, rather than the creditor being required to prove it was fraudulent.

• In some states, when spouses take property as joint tenants with rights of survivorship, but one spouse provided all the money for the purchase, there is a rebuttable presumption that a gift was intended to the other spouse. As a result, if the one providing the money wishes the whole of the property upon divorce, and the state is not a community property state, then the paying spouse has the burden of proving it did not intend a gift to the nonpaying spouse.

• If there is a boundary line dispute and one party destroys evidence, such as tearing down a fence or removing markers or pins, there is a rebuttable presumption that the evidence would have been adverse to the party who destroyed the evidence.

The Complete Real Estate Encyclopedia by Denise L. Evans, JD & O. William Evans, JD. Copyright © 2007 by The McGraw-Hill Companies, Inc.