Trustees’ Bare Legal Title: Concept or Misconception?

Abstract

There is a widespread idea that trustees hold a ‘bare’ or ‘dry’ title, which is distinguishable from an absolute owner’s title. A number of cases in Australia have suggested this is a misconception and a trustee’s title should not be distinguished from that of an absolute owner. This is said to be required by the theory that beneficial interests are not carved out of the trustee’s title but grafted onto it. This paper will argue this is an error; ‘bare legal title’ is a legitimate and useful concept. First, the carving/grafting theory, when properly understood, is narrow in scope and does not conflict with the idea of bare legal title. Second, the distinctiveness of a trustee’s title is recognised in a wide enough variety of contexts that it can be accepted as a useful general concept for interpreting rules that refer to property.

Keywords: trustee title, equitable property, trust property, trust title, trustee property, DKLR, Transphere