Other formats

    Adobe Portable Document Format file (facsimile images)   TEI XML file   ePub eBook file  

Connect

    mail icontwitter iconBlogspot iconrss icon

The Pamphlet Collection of Sir Robert Stout: Volume 88

Declaration of Trusts

Declaration of Trusts.

The 72nd section of the Act of 1870, as it stands, excepting the first two lines, merely means nothing. It forms the skimmed milk of three sections of the Adelaide Real Property Act of 1858, of which the cream has been left behind. The original provision relating to trusts in the Adelaide Act of 1858, was that a person desirous of vesting his land in trustees, could do so by an instrument of nomination of trustees, giving their names and addresses. This instrument was registered like any other instrument. Appended to this instrument there might be a schedule of declaration of trusts; or the said trusts might be declared in a separate instrument—"whenever such trusts are declared by a separate instrument, a duplicate or attested copy of such instrument shall be deposited with the Registrar-General for the purpose of safe custody and reference; but such duplicate or attested copy shall not be registered. . . . . .Whenever land shall be vested in trustees upon any trust, the Registrar-General shall not make any entry of the said trusts in the register book; . . . . . . and the trustees, after the entry in the register book of the nomination of trustees, shall, notwithstanding any trust affecting the said land, be entitled to sell, &c., as if the said trustees had been the beneficial owners thereof."

page 52

These provisions taken together are complete, and very intelligible; such a provision is much needed, and nothing less than what is needed in New Zealand. Only that part of the foregoing which is marked in italics, however, has been adopted in New Zealand as an independent enactment, without any of the foregoing part of the same section, and without any of the consequent parts of the sections following.

Without making an entry of any declaration of trusts in the register book, what is the objection to making, in that book, a refereuce to the existence and deposit of such an instrument?

It would not cripple any transactions; at the same time it would be much more satisfactory to all parties; because trustees, although empowered to sell, &c., could only do so, (mark the words) "after the entry in the register book of the nomination of trustees, or, (as it might be made in New Zealand,) after an instrument of declaration of trusts had been deposited by the trustees, and a reference to such instrument had been entered in the register book. No trusts need thereby be made unnecessarily public. It is true that the section of the New Zealand Act of 1870 is a transcript of the Adelaide Act of 1861, which was passed in amendment of its previous Acts of 1858 and 1860, in consequence of the objections taken in Adclaide to those Acts, that under them trusts could not be kept sufficiently secret. Such an objection should not be allowed to supersede the necessity of having some declaration of trusts at the hands of public grantees from the Crown. As a security to the public, all local governing bodies, being grantees, should be compelled to execute a declaration of trusts for deposit in the Register Office, and a reference should be made in the register book of such a document having been deposited.

Section 72 of the New Zealand Act of 1870 should be repealed, and sections 73, 74 and 75 (above quoted) of the Adelaide Real Property Act of 1858 should be substituted in lieu thereof as being enactments more adapted to the circumstances and requirements of this colony.

With these objections removed, and the existing imaginary boundary lines between the Land Registry districts in the North Island adjusted with more certainty, a consolidated Land Transfer Act would undoubtedly become popular, and be recognized as one of the most valuable Acts in the Statute Book.

Wellington,