§ 39-46. Title vested; conveyance; probate.
§ 39‑46. Title vested;conveyance; probate.
(a) Where real estatehas been or may be hereafter conveyed to a business trust in its trust name orin the names of its trustees in their capacity as trustees of such businesstrust, the said title shall vest in said business trust, and the said realestate and interests therein may be conveyed, encumbered or otherwise disposedof by said business trust in its trust name by an instrument signed by at leastone of its trustees, its president, a vice‑president or other dulyauthorized officer, the said conveyance to be proven and probated in the samemanner as provided by law for conveyances by corporations. Any conveyance,encumbrance or other disposition thus made by any such business trust shallconvey good and sufficient title to said real estate and interests therein inaccordance with the provisions of said conveyance; provided, however, that withrespect to any such conveyance, encumbrance or other disposition effected afterJune 28, 1977, there must be recorded in the county where the land lies amemorandum of the written instrument or declaration of trust referred to inG.S. 39‑44. As a minimum such memorandum shall set forth the name, dateand place of filing, if any, of such written instrument or declaration oftrust, and the place where the written instrument or declaration of trust, andall amendments thereto, is kept and may be examined upon reasonable notice,which place need not be a public office. Such memorandum may includedesignation of trustees and duly authorized officers and the authority grantedto them with regard to real estate matters, pursuant to subsection (b) of thissection.
(b) Any business trustmay convey or encumber an interest in real property that is transferable byeither (i) an instrument duly executed by either an officer of the businesstrust other than one of its trustees, its president, a vice president, or otherauthorized agent identified in the recorded memorandum, or (ii) a declarationof trust described in subsection (a) of this section, if the conveyance hasattached to it a signed resolution adopted by the board of trustees, ascertified by an officer authorized to make such certifications of the businesstrust, authorizing the officer to execute, sign, seal, and deliver deeds,conveyances, or other instruments. This section is deemed to have been compliedwith if a resolution required by this subsection is recorded separately in theoffice of the register of deeds in the county where the land lies. Such aresolution shall be applicable to all instruments executed subsequently to therecording of the resolution and pursuant to its authority.
Notwithstanding the foregoing,this section does not require a signed resolution adopted by the board ofdirectors, as certified by an officer authorized to make such certifications,to be attached to an instrument or separately recorded in the case of aninstrument duly executed by one of its trustees, its president, or a vicepresident of the business trust. All deeds, conveyances, or other instrumentsso executed shall, if otherwise sufficient, be valid and shall have the effectto pass the title to the real or personal property described in the instrument.Notwithstanding anything to the contrary in the trust agreement, and absent anyprovision otherwise in the recorded memorandum or declaration of trust requiredunder subsection (a) of this section, when it appears on the face of aninstrument registered in the office of the register of deeds that theinstrument was signed in the ordinary course of business on behalf of abusiness trust by at least one of its trustees, its president, a vicepresident, or an assistant vice president, such an instrument shall be as validwith respect to the rights of innocent third parties for value without noticeof a defect or breach of fiduciary duty as if executed pursuant toauthorization from the board of trustees, unless the instrument reveals on itsface a breach of fiduciary obligation. The provisions of this subsection shallnot apply to parties who had actual knowledge of lack of authority or of abreach of fiduciary obligation.
(c) Nothing in thissection shall be deemed to exclude the power of any representatives of abusiness trust to bind the business trust pursuant to express, implied, inherent,or apparent authority, ratification, estoppel, or otherwise.
(d) Nothing in thissection shall relieve trustees or officers of a business trust from liabilityto the business trust or from any other liability that they may have incurredfrom any violation of their actual authority. (1977, c. 768, s. 1; 2009‑174, s. 2.)