ABSTRACT
The trust performs a very simple trick: it enables more than one person to have rights in the same property simultaneously. The trick is simple but it has complex ramifi cations. In short, the trust permits a division in the ownership of the trust property between a trustee and a benefi ciary so that the trustee is compelled to act entirely in the best interests of the benefi - ciary in relation to the management of whatever property is held on trust. 3
I will tell you the story of how the trust was born as it was fi rst told to me: I think it is the best way of understanding the trust at this stage, although it is worth bearing in mind that it is impossible to prove when the fi rst trust was created because it seems to have developed out of legal practice, but it certainly did not emerge from anything as obvious as a statute or a single judicial decision. The story goes like this. The earliest example of the trust occurred at the time of the early religious wars fought in the 12th century when Christian noblemen from Europe travelled to the Middle East on ‘crusades’. 4 Typically, the crusader 5 would be away from England for some years and therefore needed to have his land tended in his absence. 6 It was essential that the person who was left in charge could exercise all of the powers of the legal owner of that land, such as deciding who would farm which part of the land and collecting taxes. However, the crusader wanted to ensure that he would be able to recover all of his rights of ownership when he returned from the war. Consequently, the idea
of split ownership of the property emerged, whereby the crusader was treated as the owner of the land by the courts of equity and the person left in charge was treated by the common law courts as being owner of the land. 7 Therefore, two categories of people had different types of right in the same property at the same time. So, the crusader had property rights which were only recognised by the courts of equity (and so that person had an ‘equitable interest’ in the land), whereas the person who looked after the land had rights which were recognised by the common law courts (and so that person is described as having ‘legal title’).
