Dealings by trustees
Fiduciary relationships are not to be shown on the Torrens Title Register (See section 82(1) of the Real Property Act 1900). Reference to trustees, executors or administrators is only acceptable in the following dealings:
- A Transmission Application;
- A Bankruptcy Application; or
- An application pursuant to:
- s46C Real Property Act 1900;
- s12 Trustee Act 1925; or
- an Order of Court.
All other dealing forms must not include any reference to a party being a trustee, executor or administrator.
A dealing that contains reference to a fiduciary relationship will be registered in the name of the trustee only. In the notification no mention is to be made of the trust or the beneficiary of the trust.
Where a registered proprietor holds the whole of an estate or interest in different capacities and it is intended to show that registered proprietor separately for each share held, a double recording of the registered proprietor would be prohibited by section 82(1) of the Real Property Act 1900 for recording notice of the existence of a trust. That being so, the names will be merged and shown once only. However, there is statutory machinery in the Real Property Act 1900 available to the registered proprietor for it to show different capacities:
- Section 82: Any instrument which declares land to be held on trust may be deposited in accordance with section 82(2) of the Real property Act 1900, for safe custody and reference. The registered proprietor can lodge two instruments with the Registrar-General, each of which declare that a half share interest in the land is held on trust. If that occurs, the Registrar-General will record a Registrar-General’s caveat in respect of each trust instrument so lodged, for safe custody and reference.
- Section 74F: A private caveat may be lodged by the beneficiaries of the trusts over each half share, effectively disclosing the trusts.
For further information relating to Self Managed Superannuation Funds, please click here.
When dealing with ownership that has been duplicated on the land title, a letter is required stating which part of that ownership is being dealt with. If no letter is received a requisition must be sent.
In both instances the written documentation must be filed as evidence.
Companies that include the word(s) 'Trust', 'Trustee(s)' or 'Fund' within their name will be registered as drawn, provided the word is part of the company's name. For example, 'X and Y Trust Fund Limited' is acceptable. 'X and Y Limited Trust Fund' is not acceptable, and the dealing should be drawn in the names of the trustees of the fund only.
Religious bodies that include the word 'Trust' or 'Trustee(s)' in their name will be registered as drawn.
A minor cannot be appointed as a trustee.
Generally, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [170.150, 170.550].
For dealings by trustees of:
- a bankrupt, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [30.800];
- church property, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [171.100]
- friendly societies, click here;
- land held for public purposes, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [172.200]; and
- unincorporated clubs, lodges etc, see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [170.850].
For vesting, appointment and retirement of trustees as regards Torrens Title land ,click here. See also Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [10.100].
Staff processing information
Trustees normally apply as joint tenants. Refer a dealing claiming as tenants in common to Legal through the Senior Examining Officer.
Declaration of trust
A certified copy of an instrument declaring a trust may be deposited in accordance with section 82(2) of the Real Property Act 1900, for safe custody and reference. A Request form must be lodged to have the deposited instrument recorded on the affected title. The certificate of title is required. The prescribed lodgment fee is payable. A Registrar-General's caveat prepared by NSW LRS is entered on the affected title. The Request form and certified copy of the instrument are filmed with the caveat.
The copy of the original instrument must:
- be marked by Revenue NSW; and
- be certified by a prescribed functionary or licensed conveyancer.
See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [170.150, 170.800].
Removal of declaration of trust
A Registrar-General's caveat noted on the title protecting a declared trust may be removed by lodgment of a Request form. The certificate of title is required.
Staff processing information
Refer to Legal through the Senior Examining Officer.