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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: A Look-at the La w_. 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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