Hong Kong Ordinances

TRUSTEE ORDINANCE - SECT 41

Vesting of trust property in new or continuing trustees

(1) Where by a deed a new trustee is appointed to perform any trust, then-

   (a)  if the deed contains a declaration by the appointor to the effect that
        any estate or interest in any land subject to the trust, or in any
        chattel so subject, or the right to recover or receive any debt or
        other thing in action so subject, shall vest in the persons who by
        virtue of the deed become or are the trustees for performing the
        trust, the deed shall operate, without any conveyance or assignment,
        to vest in those persons as joint tenants and for the purposes of the
        trust the estate, interest or right to which the declaration relates;
        and

   (b)  if the deed is made after the commencement of this Ordinance and does
        not contain such a declaration, the deed shall, subject to any express
        provision to the contrary therein contained, operate as if it had
        contained such a declaration by the appointor extending to all the
        estates, interests and rights with respect to which a declaration
        could have been made.

(2) Where by a deed a retiring trustee is discharged under the statutory power
without a new trustee being appointed, then-

   (a)  if the deed contains such a declaration as aforesaid by the retiring
        and continuing trustees, and by the other person, if any, empowered to
        appoint trustees, the deed shall, without any conveyance or
        assignment, operate to vest in the continuing trustees alone, as joint
        tenants, and for the purposes of the trust, the estate, interest or
        right to which the declaration relates; and

   (b)  if the deed is made after the commencement of this Ordinance and does
        not contain such a declaration, the deed shall, subject to any express
        provision to the contrary therein contained, operate as if it had
        contained such a declaration by such person as aforesaid extending to
        all the estates, interests and rights with respect to which a
        declaration could have been made.

(3) An express vesting declaration, whether made before or after the
commencement of this Ordinance, shall, notwithstanding that the estate,
interest or right to be vested is not expressly referred to, and provided that
the other statutory requirements were or are complied with, operate and be
deemed always to have operated (but without prejudice to any express provision
to the contrary contained in the deed of appointment or discharge) to vest in
the persons respectively referred to in subsections (1) and (2), as the case
may require, such estates, interests and rights as are capable of being and
ought to be vested in those persons.

(4) This section does not extend-

   (a)  to land conveyed by way of mortgage for securing money subject to the
        trust, except land conveyed on trust for securing debentures or
        debenture stock;

   (b)  to land held under a lease which contains any covenant, condition or
        agreement against assignment or disposing of the land without licence
        or consent, unless, prior to the execution of the deed containing
        expressly or impliedly the vesting declaration, the requisite licence
        or consent has been obtained, or unless, by virtue of any statute or
        rule of law, the vesting declaration, express or implied, would not
        operate as a breach of covenant or give rise to a forfeiture;

   (c)  to any share, stock, annuity or property which is only transferable in
        books kept by a company or other body, or in manner directed by or
        under any enactment.
In this subsection "lease" (租約) includes an underlease and an agreement
for a lease or underlease.

(5) For purposes of registration of the deed, the person or persons making the
declaration, expressly or impliedly, shall be deemed the conveying party or
parties, and the conveyance shall be deemed to be made by him or them under a
power conferred by this Ordinance.

(6) This section applies to deeds of appointment or discharge executed on or
after 1 July 1901. [cf. 1925 c. 19 s. 40 U.K.]

"lease" (租約)