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It Happens, More Often Than t happens, more often than expected: you are out in the field, talking with a landowner who is willing to sign the easement document. The owner is not only Iwilling to sign, but ready to sign now. The local assessor’s office says that the TRUSTS A N D TRUSTEE individual is the owner of record. You have no problem, right? You take out a standard easement document, fill in the blanks, have the owner sign the docu- CONVEYANCES ment and acknowledge the signatures. Then you’re off and away. There are no problems … that is, until you go to the local registry of deeds or county recorder’s office, pull a copy of the current owner deed and find that the property is held in trust. You have a sink- ing feeling in your stomach, not unlike the feeling that real estate attorneys have when forced to deal with a trustee as a grantor. You have some questions that must be resolved. How are trust conveyances worded? Does the trustee have the power to make the grant? What documents are necessary to execute a change in the trustees? There are, however, some simple rules that will make this type of situation a little less onerous. FUNDAMENTAL DEFINITIONS A trust is defined as a fiduciary relationship in which one person (the trustee), holds property for the benefit of another (the beneficiary). It is not an entity, but rather a legal separation of rights from duties and obligations. The trustee has the duties and obligations of ownership: duties to repair and preserve the trust estate, disburse trust income, pay the mortgage and real estate taxes BY PAUL L. D EBOLE and so forth. The beneficiary has all of the benefits of ownership, the right to use and occupy the property, the right to derive income from the property and the like. The trust relationship is based on a fiduciary duty, which the trustees owe to the beneficiaries. A fiduciary duty is A RIGHT O F W AY AGENT’S GUIDE defined as a duty of unselfish loyalty, good faith and fair dealing in or with the trust property. The settlor or the trustor is the person who creates the trust and determines the 26 terms under which the trustees will hold Many jurisdictions, like Massachusetts, trust dated June 1, 1996, and recorded in the property for the benefit of the require that the trust documents be the Smith County Registry of Deeds, beneficiaries. recorded at the local registry of deeds Book 1234, Page 567, grants to John and or county recorder’s office. Other juris- Mary Smith, husband and wife, both of BEWARE OF M ERGER OF INTERESTS dictions, like New Hampshire, do not …” It is the splitting of duties and benefits require that the trust be recorded. Know However, several jurisdictions do that gives rise to the trust relationship. the conveyancing practice in your area. allow a conveyance into a trust and do One example of a typical trust relation- Does the jurisdiction require a conveyance not require that the trustee be designated ship is one in which “A” and “B” hold into a named trustee? by name. Those states are in the minority. property for the benefit of “C.” “C,” as As noted above, a trust is based on a Are those named in the trust document a beneficiary, may have the use of the fiduciary relationship. The trust itself is the same as those listed in the conveyancing property, or the right to income not an entity, but merely a relationship document? produced by that property. “A” and “B,” between two parties having different Many times, because of resignation, as trustees, have a duty to repair and capacities. In many states, a conveyance death or incapacity, the names of the maintain the property, see to its upkeep, by or into a trust must be by or into a trustee must be changed. In these cases, collect and account for any rents or income received. In that type of arrange- ment, “A” and “B” each have a fiduciary duty to “C.” In a similar type of arrangement, “A” and “B” (as trustees) may hold property Many times, because of in trust for the benefit of themselves, “A” and “B” as beneficiaries. That is, “A” and “B” in their capacity as trustees, have a resignation, death or fiduciary duty to “A” as a beneficiary and to “B” as a beneficiary. The problem is, absent a pre-existing incapacity, the names of designation of a successor trustee, upon the death of either “A” or “B,” the the trustee must be changed. surviving trustee then has a duty to the surviving beneficiary. In the case of the death of “B,” “A” as trustee has a fiduciary duty to “A” as a beneficiary. There is then a merger of interests in the survivor as named trustee rather than the trust itself. the trust document itself should clearly both the sole trustee and the sole benefi- For example, a grant from “John and detail the procedure for appointing a ciary. It is impossible to owe one’s self a Mary Smith to the XYZ Realty Trust” new or successor trustee. In the case of duty of unselfish loyalty, good faith and would be invalid, and title would remain removal of a trustee, evidence of his fair dealing. Therefore, the interests of vested in the grantors. It is analogous to removal such as a resignation or death “A” as sole surviving trustee and “A” as John and Mary Smith granting a parcel of certificate should be recorded. Then an sole surviving beneficiary have merged. property to Fred. The name is incom- appointment of a new trustee, in “A” now has title to the subject property plete and since the grantee can not be accordance with the terms of the trust in fee simple (since we are talking about ascertained with any degree of certainty, agreement, as well as an acceptance of real property, but the same is true for the conveyance is void and title remains the duties of the trustee by the newly personal property). with John and Mary Smith. appointed successor trustee should also In these states, the proper conveyance be recorded. REVIEW THE TRUST DOCUMENTS would be from “John and Mary Smith to Do the trustees have the power to exe- The first step is to review the trust William P. Jones as Trustee of the XYZ cute the conveyance? documents with the project attorney. Realty Trust, under a declaration of trust Does the trustee have the power to During the course of the review, you dated June 1, 1996, and recorded in the actually convey the property? Is that a should keep the following questions in Smith County Registry of Deeds, Book power expressly granted to the trustee mind: 1234, Page 567.” A grant from a trustee under the terms of the trust agreement Does the jurisdiction require that a copy should be worded in exactly the same or is there some statutory basis for the of the trust documents be recorded at the way: “William P. Jones as Trustee of the power? Does the trustee require the local registry of deeds? XYZ Realty Trust, under a declaration of direction of the beneficiaries, as in the TRUST AND TRUSTEE CONVEYANCES case of a nominee trust? In the case of a agreement should allow for that possibility, DIRECTION OF BENEFICIARIES testamentary trust, is an order or license by stating that the trustee does have full In the case of a nominee trust, one in of the probate court required? power and authority to enter into agree- which the trustees are only empowered May good faith purchasers rely on ments and create obligations that may to act to the extent so directed by the information contained in the public records extend beyond the termination date of beneficiaries, a Direction of Beneficiary concerning the names of the trustees? trust. form is required. This document is a Many trust documents state that good sworn statement by each beneficiary (or purchaser or other grantee may rely on THE TRUSTEE CERTIFICATE by the holders of a majority of the bene- the recorded instruments for the identity In many instances, a thorough search ficial interest in the trust, check the trust of the trustees, and that no further of the public records will reveal the agreement to see which is required) inquiry into the identity of the trustees is answer to many of the issues contained which states: required. above. 1. That the person executing the What is the termination date of the trust? However, in all cases, it is prudent to Direction of Beneficiary form is a To accomplish the intent and purpose obtain a trustee certificate. The trustee beneficiary of the trust, and holds a certain of the trust, and to avoid violating peculiar certificate, obtained under the penalties percentage of the beneficial interest in common law trust principles, most trusts and pains of perjury states that: the trust terminate on a specific date, or 1. The trustee has full power and 2. That the trustees have been directed a certain time after the occurrence of authority to execute the conveyance by the beneficiary to grant the easement, a specified event. “Said trust shall 2. The trust has not been revoked, or that the beneficiary assents to the terminate twenty (20) years after the date terminated, altered or amended conveyance by the trustee; and of death of the survivor of the original 3. When a direction of the beneficiaries 3. That the beneficiary has achieved trustees named herein.” In addition, is required, that the trustee is acting as the age of majority since certain agreements (i.e., licenses, directed by the beneficiaries or the holders leases, etc.) may extend beyond the of a majority of the beneficial interest of termination date of the trust.
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