14 Ga. B.J. 12 (2008-2009)
Rarely Utilized: The Georgia Business Trust Code

handle is hein.barjournals/geobj0014 and id is 14 raw text is: 
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Rarely Utilized:


The Georgia Business


Trust Code

                                                                            by James R. Robinson


M any practitioners, even experienced
               trust lawyers, may be surprised to
               learn that the Georgia Trust Act (the
Trust Act)1 contains provisions for a form of entity
commonly known as a business trust. Indeed, the
preamble to the relevant sections of the Trust Act2
states that these provisions are rarely utilized, and
the title of the relevant Article-Creation by Deed to
Acquire Beneficial Interest -is far from illuminating.
  This group of statutory provisions-let us call it the
Georgia business trust code, for want of a better
title -has been carried over from revision to revision of
the Trust Act. Indeed, the proposed draft of the
revamped Trust Act (now called the Georgia Trust
Code) currently in circulation among the members of
the State Bar, while making several dramatic changes,
has left the business trust code completely intact and
unchanged, without comment.3


  The modern business trust has its origins in
Massachusetts, and was developed originally as a
result of the inability of corporations to own real
estate.4 Perhaps not surprisingly, it now finds its most
complete and modern expression in Delaware.5
Indeed, in this author's experience, it is common to
refer to this form of entity as a Delaware business
trust, although the Delaware Code itself now refers to
a statutory trust.6
  The Georgia business trust code reflects these histor-
ical antecedents. In its current form, it serves primarily
as a means to share ownership and centralize manage-
ment of one or more specific properties. The current
code relies extensively on corporate law for some of its
most crucial terms. Although the form is not limited to
ownership of real properties, it seems clear that this
was its original purpose, as witnessed by the require-
ment of recording of a deed with the county clerk, as
well as the time limits imposed on its duration, both of
which are discussed in more detail below.
  The potential uses of the business trust, however, go
far beyond its historical antecedents. At least under
modern statutes,7 the business trust is not only an
acceptable, but in many cases a preferable alternative
to other forms of business organization. The business
trust represents a unique juxtaposition of the modem
business entity and the fiduciary relationship. If one


12                                                                                  Georgia Bar Journal

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