This is a
translation of the
(Chapter 04.120)
as in force on 1
January 2019
This is not an
authoritative translation of the Law. Whilst it is believed to be correct, no warranty
is given that it is free of errors or omissions or that it is an accurate
translation of the French text. Accordingly, no liability is accepted for any
loss arising from its use.
Law (1862) ON HOLDINGS ON TRUST AND THE INCORPORATION OF ASSOCIATIONS
A LAW on the holding of immovable property on trust,
and on the incorporation of commercial and industrial associations
1
It shall be lawful to take, acquire, hold and possess by the
medium and in the name of trustees and in trust, for the objects specified in
this Article, all manner of immovable property, subject to complying with the
provisions of this Law, the said objects being –
1. for
any cause of public utility;
2. for the use and benefit of the following associations, namely,
commercial and industrial associations and charitable,
fine-arts or sporting organisations;
3. in
the service of Anglican worship or that of any another religion;
4. for the founding of schools and places of learning.
2
No trust
shall be created and no acquisition
shall be made by virtue of this Law except by a Contract of lease, sale, or
gift inter vivos.
Any acquisition which results from a devise or
testamentary disposition is excluded therefrom, and shall be governed by the
customary law.
Notwithstanding the foregoing provisions of this
Article, corporations constituted by virtue of Article 4 shall have the right
to receive, hold and possess all manner of movable and immovable property that
may be left to them by will.
3
Parties
wishing to create a trust by virtue of Article 1 shall be required to present a
request to this effect to the Royal Court and to obtain its authorisation. The
applicants shall attach to the request the draft Contract and other documents
by means of which they propose to establish the trust.
These documents must be
delivered in advance in good time to His Majesty’s Attorney General; who
shall be required to move conclusions to
the Court on any objections that might be taken to the objects of the trust, or to the form or effects of the contract.
After the approval of the Court has been given,
no change may be made to the content or to the conditions of the contract; and
the Act
giving approval shall be inserted with the Contract in the Public Registry.
In the event of the
appointment of a new trustee, declaration thereof shall be made to the Royal
Court and registered in the Public Registry. Once the declaration has been made
and registered, the new trustee shall join the ranks of the other trustees.
4
The Royal Court, at the
request of the interested parties and in accordance with the formalities set
out in Article 3, may grant, either to an association mentioned in paragraph 2.
of Article 1, or to an association formed with one of the aims mentioned in one
or more of the other numbered paragraphs of the said Article, an Act of
Incorporation, which shall authorise the incorporated association to take,
acquire, hold and possess, in its collective name and within specified limits,
all manner of immovable property situated in this Island.
The Act shall designate the
position of the officer by which the incorporated association is to be
represented before all courts and elsewhere, in all matters affecting the
immovable property which the association possesses or may possess.
No Act of Incorporation
shall be granted in by virtue of this Article unless the constitution of the
association has been approved by the Court and, once approved, the constitution
may not be amended without the permission of the Court.
5
As soon as the corporation
referred to in Article 4 has been constituted, a declaration shall be made to
the Royal Court, stating the name of the person charged to represent the
association.
The same requirement shall
apply whenever the person named in the declaration is replaced.
Any omission in these
formalities shall render the association liable to a fine of level 1 on the
standard scale per day, for as long as it remains in breach thereof.
6
The trustees authorised by
virtue of Article 3, and the corporations constituted by virtue of Article 4,
may re-sell, dispose of, exchange or hypothecate the
property acquired for the benefit of the trust, or of the incorporated
association; the whole within the limits of the authority conferred upon them
by the trust deed,
or by the constitution of the association, as the
case may be.
Provided that no change
relating to the objects of the trust or of the association shall be valid for
the purposes of this Law if the requirements of Article 3, or of Article 10,
have not been met.
7
All immovable property
comprised in a trust shall be exempt from the personal debts of a trustee, and
from any hypothecs charged
on his or her own property, and from any legal or judicial hypothecs to which
his or her property may be subject, as well as from the dower rights of a
widow, or widower, of a trustee and of the dower rights of a civil partner of a
trustee, and from all demands or claims which do not stem from the trust
itself. Furthermore, in the case of a décret on any
property belonging to a trustee, the contract constituting the trust shall not
be the subject of an insertion in the décret
register.
8
If an entity created under this Law becomes
insolvent or fails to meet its commitments, the creditor who has obtained a
definitive judgment or other enforceable Act against his or her debtor, and
wishes to proceed against the property of the debtor, may proceed after a
period of 15 days, in the manner prescribed by Article 3 of the Loi (1832) sur les décrets, without needing to resort to an Acte de prison and to
execute the same.
The notification required
by the said Article shall be served either on trustees, or on the
representative of the entity in default, as the case requires.
If it is an incorporated
association, and at the time of its insolvency it has no officer charged to
represent it in relation to its immovable property, it shall suffice to insert
the notification during 2 consecutive weeks in 2 newspapers which are published
in Jersey on a Saturday, one in the French language and the other in the
English language.
Once the Court has granted
an Act authorising the Viscount to serve notice upon a company or corporation,
established by virtue of this Law, that it must pay the claim of a creditor on
pain of having its property deemed renounced and liable to forfeiture, the
company or corporation may neither pay one creditor to the prejudice of the
others, nor alienate its movable property to the prejudice of the creditors of
the said organisation, on pain of those who have so alienated its property
having to pay a minimum of double and a maximum of four times the value of that
which they have so alienated.
8A
The personal property either –
(a) of a
trustee of a trust created; or
(b) of a
member or an officer of an association (other than a commercial or industrial
association) incorporated,
under the provisions of this Law shall be exempt
from the debts and hypothecs of the trust or of the association, as the case
may be, unless it has been made subject thereto by express agreement, or the
said trustee or the said member or officer of the association has undertaken
personal responsibility therefor.
9
The Royal Court shall have power and authority
and shall give effect to the conditions, agreements and stipulations of every
trust and of every corporation established under the provisions of this Law,
and shall maintain them and cause them to be observed, notwithstanding any Law
or custom to the contrary.
10
If the object for which a trust or a corporation
has been established, in accordance with Article 3 or 4 of this Law, can no
longer be fulfilled either wholly or in part, or if circumstances necessitate a
change in the original trust deed or constitution, the Royal Court shall have
the power, on the application of the interested parties, having heard the
conclusions of the Attorney General,
to allow the immovable property and the funds belonging to the trust or the
corporation to be applied to another object, preferably an object related to
that for which the trust or association was originally constituted, or to the
intentions of the founder or founders.
The Court, before ruling on the application,
must ensure that the intention of the interested parties to apply to the Court
has been made public by announcements placed at least 6 times in the Jersey
Gazette
and in the case of a trust, that the trustees have been notified thereof; and,
in either case, that there has been notice of the day on which the application
is to be made to the Court.
11
In the case of a trust in the name of an
industrial or commercial company or corporation, the members of the company or
corporation shall be responsible for any deficit in the immovables placed in
trust. If the company or corporation has been established under the provisions
of the Law governing limited liability companies, the company or association
and the members of the company or corporation shall be responsible to the
extent provided by and subject to the conditions of the Law enacted relating to
such Companies.
12
The person who is appointed by virtue of Article
4 shall also represent the company or corporation in any cause relating to
movable property, whether as plaintiff or defendant.
17
The Royal Court may, on application being made
to it, the conclusions of the Attorney General having been heard, extend the
benefit of the present Law to trusts established before this Law was enacted
and of Article 10 to trusts established otherwise than in accordance with
Article 3 or 4.