The Alienation of Land Act stipulates that any agreement for the sale and purchase of immovable property must be in writing and signed by the parties, but what happens when the seller is a Trust registered in accordance with the provisions of the Trust Property Control Act? Can the Trust buy or sell the property? If so who signs on behalf of the Trust, and how do you know that they are authorised to represent the Trust?
Section 6(1) of the Trust Property Control Act states that no one may act as a Trustee until such time as they have been authorised to do so in writing by the Master of the High Court. The Master’s authority is contained in a document headed “Letters of Authority”. Until the Master has issued Letters of Authority no one is authorised to act as a Trustee, and any act concluded by such unauthorised person, will be of no force and effect.
A Trustee is only authorised to do what he is empowered to do in terms of the Deed of Trust. So firstly, you need to establish whether the Trust Deed allows the Trustees to sell and purchase immovable property.
If the Deed of Trust allows the Trustees to buy and sell immovable property then you need to determine how the Trustees go about doing this. You need to determine how many Trustees have to be present in order to have a quorum so as to pass the Resolution resolving to buy or sell the property and preferably nominating one of them to sign the sale agreement (otherwise all Trustees will have to sign the Sale Agreement)
So how do you know if the person you are dealing with is authorised to represent the Trust and that the Deed of Trust allows for the intended transaction? You will need to look at:
- The Deed of Trust to determine:
- Whether the Deed allows for the Trustees to buy and sell property on behalf of the Trust;
- the quorum required for the Trustees to pass a resolution, if the Deed allows them to buy and sell;
- The Letters of Authority to determine who the Trustees are; and
- The Resolution passed and signed by the requisite n umber of Trustees
Article by Maria Davey