On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Deed of trust or settlement

ADIS Code - TOS

A deed of trust or deed of settlement creating a trust sets out the relationship or association between parties by which real and/or personal property usually belonging to the party creating the trust (called the settlor in a deed of settlement) is vested in or held by one party (the trustee) on behalf of and for the benefit of another (the beneficiary).

Common forms of trust are:

  • a unit trust set up by a group of individuals to enable invested moneys to be managed by a trustee.  The moneys invested by each individual are treated as units and any dividend received is allocated according to those units, see s14 Trustee Act 1925
  • a superannuation trust set up to manage a superannuation fund
  • a family trust set up to formalise the distribution of assets to family members.  The assets may be distributed during the life of the party creating the trust and
  • a trust created by a deed of settlement set up to formalise the distribution of assets to family members and to parties beyond the family.  The assets may be distributed during the life of the settlor.

A deed of trust or settlement consists of:

  • the party creating the trust, called the settlor in a deed of settlement
  • an appointer, ie a party responsible for appointing, replacing trustees etc.  An appointer may be the party creating the trust or the settlor, a trustee or a third party
  • the trustee, ie the party or parties who carry out the directions of the party creating the trust or the settlor.  The trustee may be:
    • between 2 to 4 private individuals (a minor is not acceptable, see s151A Conveyancing Act 1919) or companies. Unless otherwise stated the trustees are deemed to hold as joint tenants
    • the Public Trustee or
    • a registered Trustee Company
  • the beneficiary and
  • the trust assets or property.

A deed of settlement not creating a trust may resolve an issue between parties.  The settlement may involve land but does not vest or convey the land.  The difference between a settlement not creating a trust and a mutual agreement is determined by the operative words, ie "settles" or "mutually agrees".

It must be stated on the IPF that the deed of trust, settlement creating a trust, or settlement not creating a trust, does not affect Old System land.

A minor cannot be appointed as a trustee, see s151A Conveyancing Act 1919.

A deed of trust, a settlement creating a trust, or a settlement not creating a trust does not have to be registered.  An appointment of a new trustee must be registered to be effective.

Lodgment requirements

Stamp duty - Required. Adhesive stamps are only acceptable on a superannuation trust deed signed before 1.7.2001. If not marked Registration insisted upon is prohibited.

Not required for a superannuation trust deed signed on or after 1.7.2001.

Registration copy - Required. If unacceptable Registration insisted upon is prohibited.

Statement of Title Particulars form - Not required.

NOS form - Not required.

Index Particulars form (completion)

(A) Lodging Party - Must be completed.

(B) Instrument - Trust or Settlement

(C) Locality -  The situation of the Old System land if affected.

Link Conveyance - For the Old System land if affected.

Principal Deed - Not required.

(D) Indexing

Where a trust is created and Old System land is not affected:  the trust, the party creating the trust or the settlor; and the first unit holders.

Where a trust is created and Old System land is affected:  the trust, the party creating the trust or the settlor, the first unit holders, the beneficiary, and the trustees.

A settlement not creating a trust:  the parties involved.

(E) Certification - Required.

Document requirements

Date:  must be dated with the date of execution.  If not dated advise the lodging party.  If a date is not furnished, indicate Registration insisted upon and include the reason.

Name:  the full names (initials are acceptable) of the parties listed below are required. Advise the lodging party of any discrepancies in names.  

Where a trust is created and Old System land is not affected:

  • the trust or the deceased where the trust was created by a will
  • the party creating the trust or the settlor and
  • the first unit holders.

Where a trust is created and Old System land is affected:

  • the trust or the deceased where the trust was created by a will
  • the party creating the trust or the settlor
  • the first unit holders
  • the beneficiary and
  • the trustees.

A settlement not creating a trust:  the parties involved.

Locality:  required if Old System land is affected.  The situation of the Old System land.

Link Conveyance:  required if Old System land is affected.  The last registered conveyance or acknowledgment that evidences ownership prior to Book 4000.  Whole or part must be established.

Execution:  by the party creating the trust or the settlor where the settlement creates a trust.  The trustee does not have to sign unless required by the trust.  A power of attorney cannot be used for execution by a trustee.

By all of the parties to the settlement where the settlement does not create a trust.  A power of attorney must be registered if land or shares are involved.

Attestation:  required. Must be witnessed by a person of 18 years of age or older who is not a party to the document.

IPF:  must be completed.

Staff processing information

CA    Not required.  The requirement that appointments and retirements of trustees must be registered to be effective, and hence are often registered before the trust document, has resulted in the practice of not initiating conversion action on a document creating a trust.

Indexing

Locality:  required if Old System land is affected.  The situation of the land.

Link Conveyance:  required if Old System land is affected. The last conveyance or acknowledgment prior to Book 4000.  Indicate whole "W" or part "P".

Principal Deed:  nil.

Noting:  If Old System land is affected and:

  • an interest, state: "interest in" (or Noting Code: "I")
  • a share, state: "[fraction] share"
  • part of the land, state: "[affected land description]"
  • the land description relies on an attached plan, state: "see attached plan" (or Noting Code: "PL").

V:

Where a trust is created and Old System land is not affected:

  • the trust or the deceased where the trust was created by a will
  • the party creating the trust or the settlor and
  • the first unit holders.

Where a trust is created and Old System land is affected:

  • the trust or the deceased where the trust was created by a will
  • the party creating the trust or the settlor
  • the first unit holders
  • the beneficiary and
  • the trustees.

A settlement not creating a trust:  the parties involved, deceased estates or trusts, and any variations thereof.

P:

Where a trust is created and Old System land is not affected:  nil.

Where a trust is created and Old System land is affected:

  • the trust or the deceased where the trust was created by a will
  • the party creating the trust or the settlor
  • the first unit holders
  • the beneficiary and
  • the trustees.

A settlement not creating a trust:  nil.