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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Trustees For The Sale Of Property (NSW)


It is sometimes necessary to have an impartial party act as trustee for the sale of property. A court-appointed executor or administrator, for instance, acts as trustee for the sale of real property from a deceased estate. This article explains the role of trustees in the sale of property in New South Wales.

Role Of A Trustee

A trustee is appointed through a court order, legislative provision or trust instrument, such as a trust deed or testamentary will. For instance, under the Trustee Act 1925, a court-authorised executor or administrator is automatically a trustee of estate property.

A trustee holds property on behalf of other people, known as beneficiaries. A trustee must act with the care, skill and diligence required when a person has a fiduciary duty to effectively manage the affairs of another person. The trustee for the sale of property must remember that their duty to the beneficiaries is paramount.

Anyone who can legally own property can act as a trustee. However, it is often a professional, such as a solicitor or accountant, who assumes this position of responsibility. A trustee can even be a company if the company’s constitutional documents allow them to act in this capacity.

Appointing A Trustee For Sale Of Property

The court can appoint a trustee to act as an independent actor in the sale of a property. This is most commonly necessary when joint owners of a property are involved in an unresolved legal dispute. There is statutory provision in all states and territories of Australia that allows for the appointment of a trustee to sell a property on behalf of when the parties cannot agree on the particulars of the transaction.

In New South Wales, section 66G of the Conveyancing Act 1919 permits the appointment of a trustee to sell a property on behalf of the owners. In this case, an owner of a property can ask the court to appoint a trustee to handle a sale, even if the co-owner of the property is opposed to the sale. The court will only deny such an application when it is inconsistent with another contractual or fiduciary obligation, or a proprietary right. In general terms, the court will not allow one owner of a property to force a co-owner to retain ownership of the property.

Trustees For Sale Of Property: Case Study

In the case of Myers v Clark (2018), a divorcing couple was involved in acrimonious property settlement proceedings. The wife asked the Supreme Court of NSW to appoint a trustee for the sale of their jointly owned properties. As a result, the appointed trustee arranged the sale of the properties without the consent of the husband, who wished to continue to reside in the property.

Role Of Trustee For The Sale Of Property

In order to execute their responsibilities, a trustee has certain powers over the assets in their possession. Trustees do not have the power to arrange the sale of property from a trust because their utmost obligation is to preserve trust property. Rather, the power to sell arises from a trust instrument, court order or statutory allowance.

A trustee appointed for the sale of a property will first take legal possession of the asset. They will then determine how best to approach the sale of the property to obtain the best result for the beneficiaries, in terms of the sale price and timeframe. They may decide that it is necessary to arrange renovations on the property before it can be sold. In that case, the trustee must ensure that any work takes place within a reasonable time to prevent undue delay to the sale of the property.

Before proceeding with the sale of a property, the trustee must ensure that the title is in the trustee’s name. The trustee will almost always engage a real estate agent to market and sell the property, and a solicitor to undertake the conveyance of the sale of the property. Engaging independent professionals to arrange the sale of a property affords the trustee a measure of indemnity if there are any problems during the transaction or accusations of mismanagement of the asset. The courts have the power to relieve a trustee from liability provided the trustee acted reasonably and honestly.

The proceeds of the property sale are deposited in a trust account before distribution to the co-owners of the property. The trustee’s fiduciary duty dictates that they should have complete transparency when it comes to financial documentation. The trustee should allow the beneficiaries to inspect trust account records and any other documentation upon request.

Reimbursement And Remuneration

There are costs associated with acting as trustee for the sale of a property, such as legal fees, valuation and real estate advertising costs. A trustee who pays these fees out of pocket will be reimbursed from the trust if the expenses are incurred as part of the proper administration of the trust. However, a trustee cannot profit in any way from the transaction, unless it is within the terms of the trust instrument for them to do so, or through a court order, or with the agreement of the trust beneficiaries.

The solicitors at Armstrong Legal are more than happy to assist you if you have questions about the role of a trustee responsible for the sale of a property. Please contact our team on 1300 038 223 for any legal advice or assistance.

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