The Declaration of Trust Tenants in Common is essential in South African property transactions where multiple parties wish to own defined shares in a property while maintaining individual control over their portion. This document type is commonly used in family arrangements, business partnerships, or investment scenarios where parties want to maintain separate beneficial interests in a property while sharing its management and use. It must comply with the Trust Property Control Act 57 of 1988 and related South African legislation, requiring registration with the Master of the High Court. The declaration establishes the trust structure, defines ownership shares, outlines management responsibilities, and provides for succession planning. It's particularly useful when co-owners want more flexibility than traditional joint ownership offers, allowing them to deal with their share independently, including selling or bequeathing it.
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1. Parties: Identification of all trustees and beneficiaries, including their full legal names, addresses, and capacities
2. Background: Context of the trust creation, including the purpose of the trust and the relationship between the parties
3. Definitions: Defined terms used throughout the document, including 'Trust Property', 'Beneficial Interest', 'Trust Period', etc.
4. Declaration of Trust: Formal declaration establishing the trust and confirming the trustees hold the property as tenants in common
5. Trust Property: Detailed description of the property held in trust and the respective shares of each beneficiary
6. Trustees' Powers and Duties: Comprehensive list of trustees' powers and responsibilities in managing the trust property
7. Beneficiaries' Rights: Rights of beneficiaries including occupation, income rights, and ability to sell or transfer their interest
8. Decision Making: Process for trustee decision-making and required majority for different types of decisions
9. Income and Expenditure: Provisions for handling property income, expenses, and distribution of profits
10. Duration and Termination: Term of the trust and circumstances under which it can be terminated
11. Governing Law: Confirmation that the trust is governed by South African law
1. Property Management: Specific provisions for day-to-day management of the property - include when property requires active management
2. Mortgage Provisions: Include when the property is subject to a mortgage, detailing responsibilities for payments and compliance
3. Sale Provisions: Detailed process for selling the property or beneficial interests - include when parties want specific sale conditions
4. Dispute Resolution: Specific procedures for resolving disputes between trustees or beneficiaries - include when parties want alternative dispute resolution
5. Death Provisions: Specific provisions for handling a beneficiary's death - include when not covered by standard succession laws
6. Foreign Ownership: Additional provisions for foreign beneficiaries - include when any party is not resident in South Africa
1. Schedule 1 - Property Details: Detailed description of the trust property including title deed information and registration details
2. Schedule 2 - Beneficial Interests: Table showing each beneficiary's percentage share in the trust property
3. Schedule 3 - Initial Trustees: List of initial trustees with their full details and contact information
4. Schedule 4 - Contribution Schedule: Details of initial and ongoing financial contributions by each beneficiary
5. Appendix A - Property Valuation: Current market valuation of the trust property
6. Appendix B - Property Plans: Property plans, diagrams or surveys where relevant
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