Ferret apologises for the length of this post, but it is essential you are aware of the implications of a trust.
For those readers who want a quick summary of a trust without having to read this full post:
- A trust does not protect an asset – it actually gives it “away”.
- A trust will still require funding, those funds will still, in all probability come from your precept but with no say how they are spent.
- A trust enables the trustees to dispose of the land partly or wholly without any need or accountability to the community.
and the big questions from all of this ……
- Do you trust Mr Jim Kenyon and his independent Councillors?
- What will the benefit be of giving away our prized asset to our community?
- Why the urgency to make this happen now?
- What are their real motives, with all the cronyism and “business expertise” demonstrated so far by this “own pocket filling council”? – Your guess will probably be correct
Further details on a trust and the implications for YOU.
Will we ever get a written response to our questions submitted to Independent Hemsworth Town Council and Mr Kenyon from the meeting held on 12 October 2021?
Q. What is a Trust?
A. A trust is fundamentally a gift by the settlor. (in this case Hemsworth Town Council)
Broadly, the effect is that the trust assets will no longer be owned by the community. Creating a trust is fundamentally a gift by the settlor. Broadly, they can no longer benefit personally from the gifted property then the effect is that the trust assets will no longer be owned by the settlor (our community)
Q. Who can create a trust?
A. The person/organisation who creates a trust is called the “settlor”. The settlor gives property to someone that he or she completely trusts. A trust can arise by simple arrangement and there is no legal formality to create it.
So for example Hemsworth Town Council could give YOUR Waterpark to Councillor Eccles or any other person or persons.
Q. What is a Trust fund?
A. The property that is given becomes the ‘trust fund’ or the ‘trust assets’. Examples of property settled on trust include houses, land, shares and cash.
Q. Who controls a Trust?
A. The trusted person receiving and controlling the trust assets is called a “trustee(s)”.
Any person who the settlor decides can benefit from the trust assets is called a ‘beneficiary’.
Q. Can a person be a settler and also a beneficiary?
A. The settlor can also be a trustee and a beneficiary. However, whether this is a good idea depends on the taxation and practical implications.
Q. What is the “Trust Document”
A. The trust document names the trust and the date it was made, the settlor, the trustees, the beneficiaries, and the terms on which the trustees will hold the trust assets for the benefit of the beneficiaries.
Q. What are “Terms of Trust”
A. Normally, the terms of the trust are written in a document commonly referred to as a ‘settlement’, ‘settlement deed’, ‘trust’, ‘trust document’, ‘trust instrument’, or ‘trust deed’. Note that a ‘deed’ is essentially a document that is in writing, signed and witnessed.
Q. How long does a Trust last
A. Trusts automatically last for 125 years (the ‘trust period’) unless specified to last for a shorter period of time.
Lifetime trusts tend to be created by those who have sufficient wealth to do so and a typical driver is preserving and maximising family wealth, while Will trusts are also commonly used to control and protect family wealth, with family harmony and the avoidance of disputes weighing in heavily with the normal desire to mitigate inheritance tax.
Q. Are there different types of trust?
A. There are various types of trust
One common type of trust, as an example, is a known as a ‘discretionary trust’. In outline, this is a trust where the settlor gives wide discretionary powers to the trustees to choose which of the named beneficiaries can benefit (if at all), when, to what extent, and the manner of the benefit.
Here, the beneficiaries have no right to have the trust assets but can merely hope to be considered by the trustees.
Q. Are there any Fundamental safeguards?
A. Yes The fundamental importance of trusting the judgement and future conduct of your trustees – “trusteeship”
Q. Are there any changes to trusts being planned?
A. Yes –
The new Charities Bill will make a number of changes to the regime for disposing of charity land, and in particular the requirement to obtain advice in relation to a proposed disposal.
including
- The Bill will introduce additional flexibility in terms of who can provide advice, what the advice should cover, the form it should take and the requirement to advertise.
- The draft Charities Bill (the Bill) proposes a number of changes and introducing greater flexibility into the procedure which charities are obliged to follow when they wish to dispose of interests in land.
Q. What are the present advice requirements?
A. At present trustees who are considering a disposal must:
- obtain and consider a written report on the proposed disposition from a suitably qualified surveyor;
- advertise the disposition in whatever manner the surveyor advises; and
- decide that they are satisfied, having considered the surveyor’s report, that the terms on which the disposition is proposed to be made are the best that can reasonably be obtained for the charity.
The Bill makes changes to (a) in terms of who can provide the advice, what the advice should cover and the form it may take, and to (b) by removing the automatic requirement to advertise a proposed disposal in the manner advised by the surveyor.
Q. Who can provide the advice?
A. At present, a “qualified surveyor” it is a fellow or professional associate of the Royal Institution of Chartered Surveyors who is reasonably believed by the trustees to have ability in, and experience of, the valuation of land of the particular kind, and in the particular area, in question.
Q. What should the advice cover?
- At present, trustees are required to obtain a written report covering the matters specified in the Charities (Qualified Surveyors’ Reports) Regulations 1992 (the Regulations). The Regulations are prescriptive in certain respects and broad in others and can be challenging to map onto more complex transactions.
Q. What does the new bill propose?
The Bill proposes that trustees should be able to seek advice from a broader range of less qualified “designated advisers” including estate agents:
- Quote “it is expected that, in addition to RICS surveyors, regulations will allow fellows of the National Association of Estate Agents”.
- “While for routine disposals it might be attractive to seek advice from an employee rather than an external professional”.
The new advice requirement is significantly simplified and will require trustees to obtain a report which deals with the following matters:
Q. What about the duty to advertise?
A. The Bill removes the automatic statutory requirement to advertise a proposed disposal as advised in the surveyor’s report.
- It proposes instead that the charity must consider any advice on advertising that is given by the designated adviser, but there is no longer a statutory requirement for the charity to follow that advice.
So the waterpark could be given away as a trust, we could still be paying for its upkeep and have no say how it’s run or even any right of entry if that’s what the trustees or trustee dictate. No guesses allowed for who that will be, no safety or security in a trust especially when it is owned by the community in the first place. More blatant cronyism. Absolutely disgusting that Cllr Womersley is the front man seen to be pushing this. Disgraceful conduct from all involved. Even with all we’ve seen up to press this becomes the lowest of the low, just waiting for bankruptcy with the planned court cases to finish us of totally. Hang your heads in shame councillors I know Kenyon won’t, it’s a way of life with him but is there any decency left in any of you, if so now is the time to find it and stop all this Kenyon led blatant skulduggery. It is your own community, your fellow men women and children that are the victims to your misdeeds.
There’s an old saying springs to mind from around this part of the world, ” I wouldn’t trust them as far as I could throw them”
I wonder whether this would be of more use than a Trust?
https://mycommunity.org.uk/what-are-assets-of-community-value-acv
I did ask Ian Womersley a while back whether this was what he had in mind, and he replied:
“The motion is to put the land in trust for ever for the people of this community so that it can never be sold to any individual, or company, and to include no covenants.
Mr Draper was instructed to get all details and costs so that it can be progressed.”
I then asked:
“How would the trusteeship work?
Who would the trustees be, a law firm?”
And Ian responded:
“I will let you know when Mr Draper reports back.”
Which I took to mean that Ian was himself unsure of how to go about securing the future of the Waterpark, and was relying on the Town Clerk to investigate the options for him.
I am somewhat dubious about this, given the state of the investigation into the buried waste at the waterpark that was carried out by that same Town Clerk.
Hi Lyn The waterpark has been safe in HTC hands since its creation. We the people bought and paid for it and have maintained it eversince out of the precept we pay. The councillors are accountable to us, lawyers trustees or just plain miscreants if they are put in control are not. Why should we give it away? Why did Ian Womersley even feel the need to raise this issue, obviously not for the community good when there wasn’t a threat from anywhere but within his own colleagues. Why should we even pay lawyers to run our park? Just more of our money going into others pockets. The answer is plain and simple to womersley Kenyon Eccles Wilson Hurst Mitchell etc JUST SAY NO to everything they propose.
In the HTC minutes for the meeting on 15th July just published on the council website item 135. (a) which is about putting the water park into a trust.
Can anyone please advise what the actual position is on this
1 – Have the councillors already voted and agreed this and are just now looking at the different ways to facilitate this. So has this decision already been made and taken out of the communities hands.
Hi Ritchie, I honestly don’t want to speculate on someone’s motivations, whilst acknowledging that a Trust does not sound like it would be a good thing for the residents. The Community Asset thing actually adds to the security of the Waterpark, as far as I can make out, whilst leaving it still in the hands of HTC/the local community, whereas a Trust would not.
I see from the latest published minutes that they are intend to use ANOTHER solicitor for advice etc(£220+VAT an hour) . In 2018 an associate who now works with this firm was branded”SLOPPY,LAZY & CARELESS” by a tribunal.He was a money laundering reporting officer ! He was fined £10,000 and ordered to pay over £28,000 in costs and banned from ever being a sole practicioner ! Over a number of years he carried out transactions in which properties were “transferred, removed, sold and re-mortgaged without appropriate knowledge, instruction or consent” ! He went before the high court in 2019 to appeal the sole practioner ban but this was denied. Lets hope advice is not taken from this person regarding the waterpark “trust” or indeed any other of our assets !!!
Dynamite!!!
Essentially, a motion was proposed to do this, and the clerk was tasked with finding out what the options were. I’m not aware that he has yet reported back, but since I was also not aware he’d produced a report on his investigation into the Waterpark dumping until I read through the Exclusion section of the meetings of a meeting, that does not mean much.
There is nothing to stop another councillor putting forward a motion at a future to reject whatever proposal results from the clerk’s investigations.
So yes, it has been agreed in principle but it’s not an irreversible decision.
Again Lyn why mend something that’s not broken, I’ve just read Donald’s comments re solicitor, this sums the standards of this council up, that old saying birds of a feather flock together,
What is safer and easier than saying NO NO NO to these devious people. Remember some have had a lifetime of practice and wear many faces. Play safe don’t end up making us all sorry
I’m not in a position of being able to do anything about it one way or the other right now, but I really appreciate Ferret laying it all out for us to understand easily.
I’m just pointing out that there does appear to be an option that allows some extra security whilst making no change legally to the ownership of the Waterpark.
Not if they use their chosen solicitors Lyn. Old saying biggest thieves wear suits
Already proven don’t want it here, these people always hide behind a front of respectability while picking your pocket. Suppose it’s just another coincidence that this firm has been chosen out of the thousands of firms out there
How do you tell if this council is lieing? They open their mouths or commission a report, or hire “solicitors” with special areas of expertise that fit their needs. Believe no-one
Did you read the link I’m talking about? There are no solicitors involved with the Assets of Community Value, and WE, the residents of Hemsworth, could ask for this to be set up, quite independently of HTC.
I’m not saying we should, I’d want to do some serious research first, but it would be a minor spanner in the works of any attempt to sell the waterpark.
Yes Lyn I have read it, unless I’ve missed something this would not stop an owner (HTC) from disposal by trust, which is the way this council appears to be progressing.
For some reason I can’t reply to your comment, Ritchie, but you’re right, it wouldn’t stop them putting it into a trust, but it would slow down/hamper any Trust’s attempt to then sell it.
The way to stop it being put into Trust is to lobby HTC constantly, attend meetings, notify the press, arrange for everyone you know to email objecting to the idea – basically, create a very public campaign against it till they decide not to bother.
I will also say, when IW first suggested this, I thought he was doing it out of the best of intentions, but thanks to Ferret’s explanation, I cannot now support the idea as it is clearly to open to abuse by anyone on council with intentions to sell the park.
Unless I’ve lost my marbles completely I don’t recall anything being mentioned in any parties or individuals election manifesto or literature on placing public assetts into the hands of what can be best described as dubious trusts that do not protect those assets but enable the easier disposal of them Into the hands of people who have not paid for them this is beyond scandalous. Let’s remind ourselves and any town councillor reading you stood on a ticket of openness and transparency and the very least you can do is exactly that practice what you preached and if those public assets were already safe and secure then nothing nothing at all needs changing why would you need to fix something that is not broken. Should they persist in pursuing this then such a matter as grave and serious as this should be at the very minimum put out to a referendum of the people of this parish who over a great many years have paid for that asset via their council tax and precept certainly let’s be open honest and transparent and those of the councilors in favour of disposal of our assets can take their soap box onto cross hills along with those who don’t and argue their case in public then let the people decide in an honest and transparent way as to what their wishes are any other underhanded approach and lack of consultation with those who elect is an affront to democracy itself. I remind readers once again when we’re trusts ever mentioned at the last election. HTC you have no mandate for this none whatsoever
Dead right well said
They are running it into
The ground, they are going to be owing hundreds of thousands, the only way to get out of it will be to sell the water park, we all know who to!!!
It is disgraceful the councillors are allowing this to happen. We need these people out as soon as possible. I wish I had never voted for W, he was an independent and I trusted him to have my vote and look after my town.
I know one councillor has a feud with Saul, but I think another councillor has a bit of a feud too and thinking he can do the same with ‘his’ plot of land behind his house. It is diabolical that this is happening before our eyes!!!