Must I hand over a domain which my business owns?

The company has been sold, but the domain belongs to my business

[ronin]

Okay, so I'll start by saying I am looking for non-legal anecdote rather than legal guidance.

I recognise that very few of us here (with a few notable exceptions) are legal professionals but I would very much like to hear of some similar situations - there must be many - and how they developed and how they were resolved.

Here's my situation:

Just over 6 years ago (Feb 2010), the father of one of my friends contacted me about setting up a website for a business he was planning. He specifically asked me for my recommendations with regard to what domain name to go for so that his business might have the most visible online presence. I gave him my best advice and after a couple of exchanges, he opted to follow my advice (not his own original idea). I said I would send him instructions on how to purchase that domain and set up the webspace. Or I could do it myself. He left it to me to do it myself and chased me up to make sure I had done it. (I was in the middle of a round-the-world trip, so my internet connectivity wasn't always the best).

Over the next six years, I grew the site, edited it, updated it, handled the markup, styling, scripting, server-side, some of the social media, SEO etc. I was never particularly prompt in passing on the hosting and domain fees to my friend's father - and only ever did so after a gap of 18-24 months - usually after much prompting for an invoice.

Six (and a bit) years later, my friend's father has decided to sell his business. The business changed hands on April 1st. To date, the purchaser has never been in touch with my own business with regards to the purchase of the site itself, the webspace or the domain. Now, it turns out, the money has not yet changed hands and there is a possibility that the purchaser might pull out entirely if he doesn't get the domain.

But the domain is in my business' name. My business bought it. My business has paid for it every year (albeit my friend's father's business subsequently reimbursed my business for these costs). I have grown the site as if it were one of my business' sites. Indeed, it's very hard for me to see that it isn't one of my business' sites. As far as I can see, my business is responsible for the search equity and the value of the domain. Additionally, all the paperwork states that the domain is the property of my business.

I can see (now) that my friend's father has always perceived - as a matter of good faith - that the website (and the domain) belonged to his business. However, he has never explicitly approached me on this. And had he done so at any point after I marked up, styled and scripted the first version of the website back in 2010, I know I would have said "No. It may promote your business online, but it's my domain, it's my website and it belongs to my business."

Where do I stand in this situation? Where have other people stood who have found themselves in similar situations?

Do I / might I have any legal rights?

Or can the purchaser (and / or the seller) just demand that I hand over the domain and that any refusal to do so is unreasonable obstruction?

[tangor]

Molehill, meet mountain.

He contacted you. Asked about it. You said okay, let me do it. Then let him run with it .... you are contract for hire and your expense was your contribution. You don't MORALLY own anything on this. Note, that's not legal, that's reality. You did some stuff in 2010 and updates since and kept the domain active. But you had no hand in the site. Not your business. Good grief, just demand recompense for your costs and walk away.

From a legal point of view you already lost the site by adverse possession. You paid for it, but the other guy benefited and built it into a separate business. OR, another legal theory, because you provided the bedrock you have a percentage coming (good luck on that!)

We can't give legal advice, of course, but some things aren't that complicated.

Turn that mountain back into a molehill: Just ask for your expenses as part of the sale and, if you like, charge a reasonable transfer processing fee to make that happen.

Chalk it up as something not to do again.

[ronin]

You did some stuff in 2010 and nothing since other than keep the domain active. You had no hand in the site.

No. I wrote the site in 2010 and then completely rewrote it in 2014.

I have done all the markup, styling, scripting, validation, optimisation, written some of the copy, handled the SEO, handled some of the Social Media. I have also been responsible for server-side speed optimisation, security and rewrites etc.

Just about the only thing I haven't done online is administer the Facebook page - but I did set that up too.

I am (very nearly) entirely responsible for all the business' entire online presence. There is valuable search equity and visibility in that and if there is no need for all that presence any more (because the business is now under new ownership and the new owner already has their own online presence) then I am more than happy to take what I have, strip it of identification-markers and re-purpose it for future projects.

N.B. For the avoidance of confusion - the business that the site promotes is a 100% offline business. There is no e-commerce element to it. All business activities and all transactions are offline. The website simply promotes the business.

[LifeinAsia]

the father of one of my friends contacted me about setting up a website for a business he was planning. He specifically asked me for my recommendations...

I can see (now) that my friend's father has always perceived - as a matter of good faith - that the website (and the domain) belonged to his business. However, he has never explicitly approached me on this.

Do you really not see the disconnect here? First you say he specifically contacted you about a site, then you say he never did.

But the domain is in my business' name.

It should have been in your friend's name- he requested you buy it FOR HIM and he subsequently paid for it.

My business bought it.

No, your business bought it ON HIS BEHALF.

He paid you for the domain registration/renewals, so he most definitely owns it.

As for the site/content, he either requested that you develop it (and he either paid for it or her didn't), or you decided to do it on your own without (or with) payment.

So there are 4 possible options:
A- He requested the work and paid for it
B- He requested the work and didn't pay for it
C- He didn't request the work, but paid for it anyway
D- He didn't request the work and didn't pay for it

The results:
A- He owns it.
B- He may own it, depending on what your contract says about ownership in the case of non-payment.
C- He owns it.
D- He probably doesn't own it.

What to do?
If he owns it, it belongs to him (or the new owner, if/when that transaction completes), so you need to give it up.
If he doesn't own it, then you can negotiate a fair price to sell it.

[ronin]

Do you really not see the disconnect here? First you say he specifically contacted you about a site, then you say he never did.

You make some excellent points LifeinAsia. Thank you.

If you'll bear with me, I'll play Devil's Advocate.

Let's say I move to a new town and ask a landlord friend living in that town to recommend an address to live at and then ask him to buy that address and then pay him rent for 6 years and during that time I also pay him to furnish and decorate and, later, to refurbish and redecorate the property at that address.

Let's also work on the basis that my landlord friend has an interest in property prices rising in that area and he does good work to add clearly visible signs to the local area and to smarten up the roads leading to that area, so that more people visit and the valuation of the property continues to rise.

At what point - if I never approach my landlord friend to buy the property from him - does that property become mine anyway to sell to someone else?

[londrum]

if it's not making you any money, then what's the issue? (it sounds like all he's been paying you is the fees)
so you have basically been doing all this for free.

if it was me i would just hand it over, and be happy that i don't have the hassle of dealing with it anymore

[Andy Langton]

"Landlord" is misleading here. I doubt you are known as someone that "leases" sites to people. The key point seems to me to be this one:

I said I would send him instructions on how to purchase that domain and set up the webspace. Or I could do it myself.

It seems clear here that you were offering to do this on his behalf. Either they buy it themselves, or you sort it out for them (same end result). Not either you buy it, or I'll snap it up myself ;)

At what point - if I never approach my landlord friend to buy the property from him - does that property become mine anyway to sell to someone else?

You never owned it in the first place - you bought it on their behalf and didn't do the correct paperwork giving them ownership.

I don't think the domain name ownership could be in any real dispute. You might make a case that you own the content/design/etc. if they did not request it and pay for it. You could possibly quote them a price for providing them with your developed site. But the domain is theirs, I think.

[buckworks]

Now, it turns out, the money has not yet changed hands and there is a possibility that the purchaser might pull out entirely if he doesn't get the domain.

This sounds like a situation where the letter of the law won't be in step with what's really right.

You might show as owner on the domain registration but you registered it on someone else's behalf... someone who was trusting you to set things up according to the best interests of the business. I highly doubt that he intended to grant you the right to hold him hostage!

Morally it makes close to zero sense to develop the site to promote the business then behave in a way that kills his chance to sell the business. What a recipe for bad karma!

The website simply promotes the business.

Of course the buyer would assume that the site is an asset that comes with the business. I would too.

But the domain is in my business' name. My business bought it.

You bought it at someone else's request and on their behalf. IMHO it was poor practice not to put their name on it.

My business has paid for it every year (albeit my friend's father's business subsequently reimbursed my business for these costs).

The fact that you couldn't get your act together to send out timely invoices doesn't make it right to hold him hostage now.

My gut says to hand over the domain, the site, related social accounts, and be done with it.

Clone a copy of your work to re-use for other purposes, but let the business domain go to the business it was really for.

[engine]

It should have been registered to the rightful owner, or transferred to the owner promptly.

This is your opportunity to transfer it, and move on.

The business sale has nothing really to do with the original position. However, if the sale didn't proceed because it was discovered you appeared to be holding the owner to ransom, it could turn out bad for you.
If it ended in court the only real winners would be the lawyers.

[ronin]

I don't want to hold anyone to ransom.

But I think a just outcome is important here - and I also don't want someone claiming a site or a domain belongs to their business when it quite clearly (AFAICS) belongs to my business.

I appear to be in the minority here in thinking the site and the domain rightfully belong to my business, so I'll continue to play devil's advocate for a little bit longer (just in case there is anyone who thinks I'm actually right) and then I'll review my situation.

Yes, I did register the domain and webspace on behalf of my friend's father's business. But not for my friend's father's business.

I clearly gave him the choice. (I still have the email from Feb 2010). I clearly favoured his registering the domain over my registering it. In the event, he wanted me to do it, so I went with it, thinking "Well, this isn't really what I do, but who knows it might be a new way to work in future, or it might not..." Later, after putting a lot of work into the site, it resembled all of my other sites - I'd done all the work, I handled all the admin, I'd paid all the fees.

Yes, the site promoted a business which I didn't run... but then that's what I've done since 2002 - I write, develop, produce and publish websites which promote businesses and organisations I don't run. That's what I do. That's all I do. That is my business.

If registering a domain and building and maintaining a site on behalf of a third party vs. for a third party seems like a excessively subtle distinction, it's not. Performance Publishing (whatever it's called these days?) is based on precisely this model. This is exactly what happens when an affiliate/publisher sets up an affiliate site about a merchant and then promotes that merchant through the affiliate site. The promotional efforts are on behalf of the merchant. But that does not grant the merchant the right to claim ownership of the site.

I may write an article for an offline newspaper in which I review and/or discuss a product or service. The comments I write in that article may describe and reflect positively on the product. But the article is still my article - it's not suddenly an advertorial for the product or service in question, owned by the product's manufacturer.

I really don't want someone claiming a site or a domain belongs to their business when it quite clearly, from my perspective, belongs to my business. I don't want someone to confuse a website about their business with being their business' website. The site in question may have played a useful role as their business' website while their offline business was running, but I have plenty of other plans for the site/webspace/domain now that the old owner no longer needs the site and the new owner has no need for it either.

The domain name is [location][generic-keyword].com

With all references to the business in question redacted (as requested by the previous business owner) it is no longer visibly about that business. There are no identifying markers in the current version of the website to connect it to that business.

What is it - at this point - that makes a new business which I've never spoken to, never had dealings with and certainly never signed a contract with, the rightful owner of [location][generic-keyword].com?

[engine]

I suspect you're splitting hairs, even if you're playing devils advocate. It's arguable about the interpretation of "you do it for me" when registering a domain. Those nuances are the sort of thing that lawyers in a court of law will argue over. Evidence and proof of understanding in law might be different to what the opposing parties believe is correct. Holding someone to ransom might be seen as one party's view.
There are plenty of cases online, and it's certainly more straightforward if there's a registered trademark involved.

The morals of it are different from the legal position. If it's your name on the registration then you are the domain holder. However, if it's proven that you squatted on the domain you'd have to give it up. That would not necessarily mean handing over the website as that could be subject to separate scrutiny.

Of course, there may be no legal action, in which case it's a moral argument.

Let's try another devils advocate: If they registered it, would you have developed the site under the same arrangement?

[Andy Langton]

If registering and running a site on behalf of a third party vs. for a third party seems like a excessively subtle distinction, it's not

It is when it comes to domain registrations. Unless you have some wording that suggests otherwise, the third party's understanding is highly likely to be that you were registering it for them, on their behalf. If someone asks me, "can you register a site for me?" it means they want me to undertake the process of buying it - not buy it for myself. And this is extremely common - people don't know where to start when buying domains and often turn to developers, marketers etc.

I clearly favoured his registering the domain over my registering it.

How clear is the conversation? Would a layman believe that the choice offered was either they buy the domain, or you will buy it for yourself? Were you paid the registration fee at any point?

[ronin]

Let's try another devils advocate: If they registered it, would you have developed the site under the same arrangement?

I certainly would not have given it nearly the same degree of perfectionist care, attention and optimisation had the site, webspace and domain not been registered under my business' name.

Generally, I'd rather not spend time working on other people's sites. I'd rather spend that time working on my own sites. (Ronin - see?)

Given that in 2014 I had to take 2 days unpaid time away from the office to rewrite the site (I was doing a stint as an office employee to stay on top of domestic bills), had the site and the domain not been registered under my business' name, it's rather doubtful I would have agreed to doing the re-write at all.

But as my business' property, it wasn't just paid work, it was a question of craftsmanship, skill acquisition, portfolio development and improved search signature.

[ronin]

How clear is the conversation? Would a layman believe that the choice offered was either they buy the domain, or you will buy it for yourself?

What I wrote (following a discussion about optimal domain names):

Whatever you decide, I can either give you instructions for free on how to purchase and set up your own domain and webspace, or, if you prefer, I can do this at my end.

Yes, I certainly could have been more explicit and (instead) written:

or, if you prefer, I can do this at my end, in which case the domain and webspace will not be your own, it will join my business' portfolio of websites, it will be owned and maintained by my business, but it will still be developed and run on your business' behalf [...]

In my defence, I was in the middle of travelling around the world and usually only had access to email through internet cafes with unreliable internet connections. (I don't know where I was when I hurriedly wrote this - my guess is in Mar del Plata in Argentina).

[edited by: engine at 4:19 pm (utc) on Apr 21, 2016]

[edited by: ronin at 4:29 pm (utc) on Apr 21, 2016]

[Andy Langton]

To me that is abundantly clear that you are offering to go through the registration process for them, and that you're buying it for them.

You've charged them both for the domain, and an "admin fee" for your time going through the process. They absolutely own that domain name. You should have listed them as the registrant, and yourself as an admin contact.

[ronin]

Okay.

Looks like the general consensus is I've screwed myself royally.

I'll chalk it down to inexperience.

My next question is - how can I acquire ownership of the domain name?

I see I will have to pay back any charges which are deemed incorrect charges.

What else do I need to do?

[Andy Langton]

My next question is - how can I acquire ownership of the domain name?

I see I will have to pay back any charges which are deemed incorrect charges.

Can you clarify those two points? There's certainly no issue with you charging them for services. I would also say that you may have a case for ownership of content/design/intellectual property. But again, it would depend on what exactly was discussed. In the absence of a formal contract, whatever was agreed via email would likely constitute the terms of what you were doing. But if you've charged them for it, my guess would be that it's theirs.

[ronin]

For 6 years I have passed on the same webhosting and domain name charges which were charged to me by the webhost and domain name provider.

Returning to the landlord analogy above, for me that is the same as a landlord passing on ground-rent (and / or council tax) charges to a tenant renting out an apartment owned by that landlord. (Something I had extensive experience of when I was a tenant).

Since I passed those charges on to a business (which no longer exists), I can (presumably) reimburse the former owners of that business with the charges I (eventually) invoiced for.

With interest, if necessary.

In total, all the domain and webhosting costs over 6 years come to about £500.

I trust that will mean that neither the former business owner nor the new business owner will then be in a position to demand that I surrender the [location][generic-keyword] domain name.

[ken_b]

Ronin;

Maybe I missed it, but when in the last SIX YEARS did you explain to your friend and his father that this was YOUR website and that they had NO CLAIM to it?

You could have and should have settled this matter YEARS ago, now [ I believe ] it's time to hand over the domain and website gratis and move on.

[londrum]

you could look at it like this:
you obviously know a lot about that website and that business, so maybe the new owners will be happy to chuck a bit of extra work your way (...paid, this time!)
but they're not going to fancy doing that after all this hoo haa

[ronin]

Maybe I missed it, but when in the last SIX YEARS did you explain to your friend and his father that this was YOUR website and that they had NO CLAIM to it?

Indeed. Mea Culpa.

But you might ask, equally legitimately: when in the last six years did my friend's father explain to me that this was his business' website and that my business had no claim to it?

This is a situation where very little is written down and the assumption of each side (he thinks it's his business' website, I think it's my business' website) conflicts with that of the other.

I don't know if he thought he'd made it clear to me that this was his business' website.

I thought I'd made it crystal clear that this was my business' website.

Understand that prior to the start of this year, I have never produced a website for any third party.

All my websites have been by my business, for my business. I don't run a web design studio, I don't run a web production studio. (I kind of do now - but that's from Jan 2016 onwards). I have less contact with my friend's father, but my friend knows me well enough that I consider myself a writer and a publisher - a sometime journalist, interviewer, academic, pamphleteer, marketeer, correspondent, socio-political philosopher, travel writer, reviewer, reporter... whatever you like - but I am not a web designer / developer. A point I have reiterated many tens of times.

You could have and should have settled this matter YEARS ago.

Yes. We could and - to my knowledge - did settle this matter in February 2010.

the new owners [... are...] not going to fancy doing that

Trust me, I'm no keener on them, given that they're assuming they can simply make off with one of the more valuable of my business' assets. A piece of work (like many other pieces of my work) I have spent years on.

[edited by: ronin at 6:41 pm (utc) on Apr 21, 2016]

[buckworks]

Help me understand ... how did this site contribute to your business income?

[Andy Langton]

I don't know if he thought he'd made it clear to me that this was his business' website.

In terms of the domain name, why would you have issued an invoice for it if you were buying it for yourself? You might have a claim to design/content/intellectual property, but that's going to depend on the email trail (and whether you charged for those services).

[poppill]

I just wanted to say that I think this is a VERY important lesson for you and your career. I believe you both made mistakes in handling this situation, however as the person advising, handling, consulting, contracting, whatever.... you really should bear the responsibility to handle these relationships well, because as you said "it is your business".

Reading this situation, I don't see any way that you can rationalize that you are correct. To me what it sounds like really happened was you registered this domain for this guy, naively hoping that it might be yours because of that. Then on that little itty bitty assumption you proceeded to do work investing in this, and not communicating properly the work you've done, the value you've added, in hopes that it meant it was "more yours". This is all subconscious of course.

In no way do you own that domain. In fact I think you were very harmful to the relationship because you were communicating your expectations, desires, wants etc. You probably resented not being fairly compensated for all of the hard work you were putting in, and its your fault for not communicating that resentment. All of that emotion is blinding you to the situation, and making you rationalize that "you are being harmed". But in reality, you were not being integrous and communicating what was real to you. This is his fault too, but you need to take responsibility and ownership for your part in this going wrong. Thats the only way you'll improve in the future, and make sure to bring this stuff to air, immediately instead of 6 years later.

You need to have the confidence to stand up for what you want when you want it, and not wait until years of miscommunication and misconception culminate into an event that is your last chance to say something.

Who knows, I might be wrong, this is just my hallucination from what I read, I dont know you. But at the least, from what I read you can get a perception from someone who's been in your position before, and see's a little of himself in you.

[ronin]

Help me understand ... how did this site contribute to your business income?

- Initial Design/Development work in 2010-11
- Google Adsense between 2010 and 2014.
- Visual look and feel overhaul in 2014
- Maintenance work between 2010 and 2015

I did invoice for the 2014 redesign because that was a big piece of work. (I think I did anyway - I certainly intended to).

But mostly I didn't invoice for maintenance work - optimising the CSS, rewriting xHTML1 as HTML5, changing the charset to UTF-8, on-page SEO, promoting the site through social media, editorial additions, adding scripts to the site - at all.

Sometimes when the business was pulling teeth trying to get me to be paid for work I was doing on the site on an ongoing ad-hoc basis and I'd grown tired of always repeatedly saying "No, it's fine - it really doesn't matter", I'd eventually write out an invoice.

AdSense income was relatively good for a while.

The main thing I always wanted to do was work on it on a frequent basis once every 2-3 days (rather than on an intermittent basis once every 2-3 months) in return for a commission on offline sales referred by the website.

That would be constant work for constant income - a setup I would have been very happy with.

[edited by: ronin at 6:58 pm (utc) on Apr 21, 2016]

[tangor]

it's rather doubtful I would have agreed to doing the re-write at all.

That statement right there indicates they thought you worked for them. By your action(s) you substantiated that belief. By your own remarks you do not have a brick and mortar location like the website, so anyone looking in from the outside will also believe the intent was to SERVICE the store, not your business.

All this comes down to the fact that an arrangement was entered into with no clear terms and no mutual understandings.

I suspect you can say your coding is your work and keep that, but the domain name is theirs, and has been from the first.

[lucy24]

does that property become mine anyway to sell to someone else?

Gotta say, this is probably the worst possible analogy, because real estate is subject to more rules and regulations than just about any other kind of property. Working with the analogy: The only time someone else's property could ever become yours-- without you buying it from them-- would be if they first lost it (unpaid taxes, say) AND THEN you were able to use some type of existing "homesteading" rules. And that's not likely to apply unless the occupant, not the on-paper owner, was the one providing all the repairs and maintenance and upgrading and renovation. That seems like pretty exactly the opposite of the situation you're describing.

[ronin]

In terms of the domain name, why would you have issued an invoice for it if you were buying it for yourself?

To pass the cost on.

I see it would have been better to note the cost, not pass the charge on and then, later, when I did some maintainance work (which fairly frequently I didn't charge for) invoice for that work an amount equivalent to the charge.

That way, the business owner would be happier (paid for design/dev work on the website). And I would be happier (it's unambiguously my business' website, no third-party has paid or reimbursed my business for any of the webhosting or domain name charges).

That statement right there indicates they thought you worked for them.

- When they were commissioning specific large-scale changes to the markup, styling and scripting on the site?
Yes, of course by taking on that commission I was working for them.

- Would I have taken 2 days unpaid leave from the office to do this work if there had been no other long-term benefit (ie. conducting a large-scale look-and-feel overhaul of one of my business' web properties in a way which I would never normally make the time spare for)?
Very unlikely.

Who on earth takes unpaid leave from a position which pays regularly to do another piece of work which pays out fairly infrequently? ;-)

If the work in question wasn't part of "building an estate" you wouldn't do that, would you?

[ronin]

the domain name is theirs, and has been from the first.

So, again, I was wrong to steer them away from their original course and advise that they buy that domain name?

If I'd wanted to own [location][generic-keyword].com, I should have:

1. Left them to buy the [location][brand].co.uk domain they originally intended to;
2. Bought the [location][generic-keyword].com domain myself;
3. Proceeded to build [location][generic-keyword].com in my own time;
4. Out-competed both [location][brand].co.uk and main competitor, [location][generic-keyword].co.uk.

For the avoidance of doubt, yes, I'm being sarcastic. ;-)

[Marshall]

Yes, I did register the domain and webspace on behalf of my friend's father's business. But not for my friend's father's business.

Semantics which will not get you anywhere. IMHO, you mislead your friend's father if you registered this in your company's name.

Given that in 2014 I had to take 2 days unpaid time away from the office to rewrite the site (I was doing a stint as an office employee to stay on top of domestic bills), had the site and the domain not been registered under my business' name, it's rather doubtful I would have agreed to doing the re-write at all.

Your decision, your loss.

Cut your losses and remember - no good deed goes unpunished. And hope this does not come back to haunt you as after reading all this, I would not trust you to register anything for me. And that is what you should be worried about - your reputation.