Trusts: Creditors' Claims against the Trust Property: Liability of Trustees in Representative Capacity

1947 ◽  
Vol 45 (5) ◽  
pp. 645
Author(s):  
T. E. Norpell
Keyword(s):  
Trust Property

Trust Property

2000 ◽  
Vol 6 (5) ◽  
pp. 31-32
Keyword(s):  
Trust Property

Overreaching, Trustees' Powers and the Reform of the 1925 Legislation

1990 ◽  
Vol 49 (2) ◽  
pp. 277-333 ◽  
Author(s):  
Charles Harpum
Keyword(s):  
True Nature ◽  
Trust Property ◽  
The Law ◽  
Law Commission ◽  
Actual Occupation

Overreaching, as the doctrine is now understood, is the process whereby a purchaser of property takes it free from any interests or powers, which attach instead to the proceeds of sale. Dispositions of trust property and conveyances by mortgagees, by personal representatives and under an order of the court may all overreach equitable interests. A lease granted by a mortgagor may overreach the rights of the mortgagee. This article is concerned primarily with dispositions of trust property and in particular those by trustees for sale of land. It seeks to demonstrate that the concept of overreaching is wider than is supposed. Two principal arguments are advanced. The first is that overreaching is a necessary concomitant of a power of disposition. A transaction made by a person within the dispositive powers conferred upon him will overreach equitable interests in that property, but ultra vires dispositions will not, and the transferee with notice will take the property subject to those interests. The second argument is that the draftsman of the 1925 property legislation fully appreciated the true nature of overreaching, and attempted to employ it as an essential part of his scheme for the facilitation of conveyancing. His intentions have not been appreciated in practice, and his carefully constructed scheme has been misapplied. The article considers critically recent proposals for reform from the Law Commission, and in particular the emphasis which those proposals give to the protection of the rights of persons in actual occupation. It will be suggested that reform might be more effectively achieved by employing the essentials of the scheme constructed by the draftsman of the 1925 legislation.

scholarly journals Floating Charges and Trust Property in Scots Law: A Tale of Two Patrimonies?

2018 ◽  
Vol 22 (1) ◽  
pp. 1-28
Author(s):  
Alisdair D J MacPherson
Keyword(s):  
Charge Property ◽  
Legal Position ◽  
Trust Property ◽  
The Law ◽  
Trust Law ◽  
A Company

This article contains a doctrinal analysis of floating charges and trust property in Scots law. It uses the dual patrimony approach of trust law to interpret the floating charge's creation, attachment and enforcement, and thereby demonstrates that it is not possible under the current law to effectively charge property held by a company in trust. The application of the dual patrimony theory provides a broader foundation for explaining the current legal position and helps to integrate the floating charge into wider Scots law. The article also diagnoses issues that would need to be resolved if the law were to be successfully reformed to enable the charging of trust property. It shows that there are some ways in which the current law could facilitate such reform but that, in other respects, more substantial changes would be required.

Trustee Liability to Third Parties

2017 ◽  
Author(s):  
Paolo Panico
Keyword(s):  
Third Parties ◽  
Basic Notion ◽  
Legal Personality ◽  
Trust Property ◽  
Trust Law

Trusts are not corporate entities: they have no legal personality and so are capable neither of owning property in their own right nor of suing or being sued. Title to the trust property vests in the trustees, who in turn have standing to sue or to be sued in their capacity as such. Of course, this is a basic notion in trust law, yet it entails some intractable consequences for trustees contracting with third parties.

31. Remedies against strangers to the trust

2018 ◽  
Author(s):  
Robert Pearce ◽  
Warren Barr
Keyword(s):  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Trust Property ◽  
The Third Party ◽  
The Stranger

This chapter considers remedies involving a breach of trust which involves a third party who was not a trustee either as a participant in the breach or as the recipient of trust property transferred to them in breach of trust. In the event of such a breach, the beneficiaries of the trust may be entitled to pursue remedies against the stranger. The third party is termed a ‘stranger to the trust’ because he or she was not a trustee and, therefore, was not subject to any obligations prior to his or her involvement in the breach. Remedies against third parties may prove more attractive to the beneficiaries than their remedies against the trustee in breach. The availability of remedies against a stranger to the trust will be especially important if the trustee is insolvent, thus rendering direct remedies against the trustee ineffective.

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