THE PROPRIETORS OF MANGATAWA-PAPAMOA BLOCKS Trustee Mr & Mrs Beneficiary Beneficiary TRUST DEED
TRUST DEED DATED 2018 PARTIES 1. THE PROPRIETORS OF MANGATAWA-PAPAMOA BLOCKS ( the Trustee 2. Mr and Mrs Beneficiary ( the Beneficiary WHEREAS A. The Trustee is a Māori Incorporation, incorporated under the Act and is the registered proprietor of the Land pursuant to orders of the Māori Land Court. B. The Trustee and the Beneficiary have entered into the Licence to Occupy in order for the Beneficiary to build the Dwelling. The Licence to Occupy also sets out what happens in the event that the Trustee is called on under the Deed relating to Put Option in respect of Defaulting Kāinga Whenua Loans to purchase the loan advanced under the Loan Agreement. C. The Beneficiary has entered into the Loan Agreement with Kiwibank to acquire funding to enable the construction of the Dwelling. D. The common law position is that, by the affixation, the Dwelling will become part of the Land. This consequence is not the intention of the parties. E. As a result of the above arrangements, the Beneficiary requested the Trustee to hold the Dwelling on the Beneficiary s behalf. F. The Trustee has agreed to hold the Dwelling subject to the Beneficiary entering into this Trust Deed. NOW THIS TRUST DEED WITNESSES as follows: Definitions 1. In this Trust Deed the following terms have the following meanings: "Act" means Te Ture Whenua Māori Act 1993 Beneficiary means Mr and Mrs Beneficiary and includes the Beneficiaries executors and personal representatives and for the avoidance of doubt is the beneficiary under this Trust Deed. Deed relating to Put Option in respect of Defaulting Kāinga Whenua Loans means the Deed relating to Put Option in respect of Defaulting Kāinga Whenua Loans dated [ ] between Housing New Zealand Corporation and the Trustee (in its personal capacity and not as trustee under this Trust Deed pursuant to which the Trustee has granted a put option to Housing New Zealand Corporation pursuant to which the Trustee may be required to purchase the loan advanced under the Loan Agreement. Distribution Date means the date the Trust Fund is distributed: In accordance with clause 6 of this Trust Deed; Or such earlier date as the Trustee performs its obligations under clause 15 of the Licence to Occupy.
- 3 - "Dwelling" means a residential home, which will be affixed to a concrete pad on part of the Land. "Kiwibank" means Kiwibank Limited. "Land" means the land consisting of some 215 hectares more or less having a legal description of Lot 1 on Deposited Plan 65413 and Part Mangatawa Papamoa Survey Office Plan 452445. The Land is recorded as Māori Freehold Land in the Māori Land Court. "Licence to Occupy" means the deed of licence to occupy entered into between the Trustee and the Beneficiary in order for the Beneficiary to build the Dwelling on the Land. "Loan Agreement" means the loan agreement between Kiwibank and the Beneficiary to acquire funding to enable the construction of the Dwelling. Settlor means the Beneficiary. Trustee means the Proprietors of Mangatawa-Papamoa Blocks and for the avoidance of doubt is the Trustee under this Trust Deed. "Trust Fund" means any assets (including without limitation the Dwelling from time to time held by the Trustee for the Beneficiary pursuant to this Trust Deed. Interpretation 2. In this Trust Deed where the context permits (c A payment or repayment may be made by any means. The singular includes the plural and vice versa A reference to statute includes: (i (ii (iii All changes to the statute, and All replacement statutes, and All regulations made under those statutes. (d Clause headings are for reference purposes only. Trust Fund 3. The Trustee acknowledges that it has received $10.00 from the Settlor to be held, in addition to the Dwelling referred to in clause 4 below, from time to time for this Trust. Dwelling 4. The Trustee agrees to hold the Dwelling and hereby declares that it will hold the Dwelling and all benefits accrued in relation to the Dwelling ON TRUST for the Beneficiary (and if more than one Beneficiary then for those Beneficiaries as joint tenants and agrees to transfer and deal with the Dwelling and all benefits in respect of the Dwelling in such manner as the Beneficiary shall from time to time direct and otherwise in strict accordance with the Licence to Occupy, the Loan Agreement and the Deed relating to Put Option in respect of Defaulting Kāinga Whenua Loans.
- 4-5. The Trustee acknowledges, notwithstanding the Dwelling is affixed to the Land and the operation of law, that the Dwelling is the separate, sole and exclusive property of the Beneficiary. This provides the Beneficiary with no greater right or obligation in respect of the Land than those set out in the Licence to Occupy (whether by contract, land law or in equity.the Trustee will at the request of the Beneficiary execute all documents in relation to the Dwelling which shall be necessary or proper to enable the Beneficiary to receive the full benefit of the Dwelling. Perpetuity Period 6. The Perpetuity Period for this Trust is 80 years from and inclusive of the date of this Trust Deed. Despite the rest of this Trust Deed the Trustee may not do anything that effectively extends the Distribution Date beyond the end of the Perpetuity Period. Winding up this Trust 7. On the Distribution Date, the Trustee must distribute the Trust Fund in accordance with clause 15.2 of the Licence to Occupy. Amendments 8. The Trustee may from time to time by further deed vary, cancel or add to all or any of the provisions of this Trust Deed. 9. Any such further deed must: (c Have the written consent of each Beneficiary; Not affect anything the Trustee has already done specifically for a Beneficiary; and Not extend the Distribution Date beyond the Perpetuity Period. 10. The Trustee may not, however, use clause 8 to change the Beneficiaries. Appointment and Removal of Trustee 11. If the Trustee is disestablished or enters into liquidation or has a receiver appointed in relation to its assets or otherwise transfers the Land, the Beneficiary shall have the right to make an application to the Maori Land Court requesting another Trustee be appointed to replace the Trustee in this Trust Deed. Trustee s Powers 12. The Trustee shall have the following powers: (c All powers given to trustees by the Trustees Act 1956 subject to the provisions of this Trust Deed; The powers in this Trust Deed, including those in the schedule; The power to carry out its obligations under clause 15 of the Licence to Occupy. Trustee s Duties 13. In respect of the Trustee s decisions, the following shall apply:
- 5 - (c The Trustee s representatives being either the members of the committee of management of the Trustee or expressly authorised representatives of the Trustee ( Representatives must act in accordance with the Trustee s incorporation order; Any resolution signed by all of the Representatives shall be as valid as if passed at a meeting of the Representatives; Any decision made by the Trustee that is recorded in minutes signed by the Representatives at any time after the decision is made must be accepted as correctly recording such decisions unless there is an obvious error. 14. The Trustee must comply with all of the duties and obligations imposed on trustees by law except to the extent that they are lawfully modified: by this Trust Deed; or by any other means. 15. The Trustee acknowledges that the Trustee is subject to a general duty to exercise skill and care, prudence and diligence in holding the Trust Fund, and specifically the Dwelling. Trustee s Liability and Indemnity 16. Neither the Trustee or the Representatives will be liable for: A loss incurred by the Trust other than as the result of the Trustee or the Representatives own dishonesty or deliberate breach of trust. Claims against the Trustee or the Representatives that cannot be satisfied because: (i (ii All or part of the Trust Fund has been distributed in accordance with clause 15.2 of the Licence to Occupy, unless The distribution is a deliberate breach of trust by the Trustee or the Representatives. 17. No Representative is obliged to take proceedings against a co-representative or any former Representative. 18. This clause extends to include any Representative who ceases to be a Representative of the Trustee for any reason. 19. The Beneficiary will at all times indemnify and keep indemnified the Trustee against all liabilities which the Trustee may incur by reason of the Licence to Occupy, the Loan Agreement and the Deed relating to Put Option in respect of Defaulting Kāinga Whenua Loans, except that such liability shall be limited to recourse to the Trust Fund. 20. Notwithstanding anything else in this Trust Deed, the Beneficiary acknowledges that: The Trustee retains the right to act on behalf of itself and to protect its interests in relation to the Licence to Occupy, Loan Agreement, Deed relating to Put Option in respect of Defaulting Kāinga Whenua Loans; and The Trustee s trustee obligations will come to an end once any of the events in clause 21 occur. End of Relationship
- 6-21. The relationship of the parties set out in this Trust Deed (and therefore the trust evidenced by this Trust Deed shall end on the Distribution Date. Resolution of Disputes and Uncertainties 22. The Trustee and the Beneficiary shall be entitled to apply to the Maori Land Court for directions on the resolution of any matter. Each party shall be responsible for their own expenses incurred in relation to such an application unless the Court directs otherwise. Governing Law 23. The law applicable to this Trust Deed and the Trust it creates shall be the law of New Zealand or such law as the Trustees may adopt by resolution from time to time. Disclosure 24. The Trustee shall, upon request, disclose to the Beneficiary a copy of this Trust Deed and all other documentation and financial information relating to the Trust. SIGNED by THE PROPRIETORS OF MANGATAWA-PAPAMOA BLOCKS as Trustee in the presence of: Witness Signature Full Name Address Occupation SIGNED for and on behalf of Sample Signing sample as Beneficiary in the presence of: Witness Signature Full Name Address Occupation [Initials + Surname] [Initials + Surname]
Schedule Trustee s Additional Powers 1. The Trustee and its Representatives may, despite anything in law or equity to the contrary: Do anything a natural person can do, and Do anything a natural person cannot do, if it is possible for the Trustee or the Representatives to do so, but 2. The Trustee and its representatives should not do anything that is: Criminal, or In breach of this Trust Deed. 3. The powers given by this clause must be construed in the widest possible manner.