Business Trusts Act 2004

Business Trusts Act 2004

2020 REVISED EDITION

This revised edition incorporates all amendments up to and including 1 December 2021 and comes into operation on 31 December 2021

An Act relating to the registration and regulation of business trusts and matters connected therewith.

[12 October 2004]

PART 1

PRELIMINARY

Short title

1.  This Act is the Business Trusts Act 2004.

Interpretation

2.  In this Act, unless the context otherwise requires —

“accounting corporation” —

(a) has the meaning given by section 2(1) of the Accountants Act 2004; and

(b) includes a company deemed to be an accounting corporation under that Act;

[Act 30 of 2022 wef 12/03/2024]

“accounting entity” means a public accountant, an accounting corporation, an accounting firm or an accounting limited liability partnership;

[Act 30 of 2022 wef 12/03/2024]

“accounting firm” —

(a) has the meaning given by section 2(1) of the Accountants Act 2004; and

(b) includes a firm deemed to be an accounting firm under that Act;

[Act 30 of 2022 wef 12/03/2024]

“accounting limited liability partnership” has the meaning given by section 2(1) of the Accountants Act 2004;

[Act 30 of 2022 wef 12/03/2024]

“accounting records”, in relation to a registered business trust, includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts of the registered business trust are made up;

“accounts” means profit and loss accounts, balance sheets and cash flow statements, and includes notes (other than auditors’ reports or directors’ reports) attached to or intended to be read with any of those profit and loss accounts, balance sheets or cash flow statements;

“advocate and solicitor” means an advocate and solicitor of the Supreme Court or a foreign lawyer as defined in section 2(1) of the Legal Profession Act 1966;

“approved exchange” has the meaning given by section 2(1) of the Securities and Futures Act 2001;

“audit committee”, in relation to a registered business trust, means the audit committee of the trustee‑manager of a registered business trust established in accordance with section 15;

“Authority” means the Monetary Authority of Singapore established under section 3 of the Monetary Authority of Singapore Act 1970;

“book” has the meaning given by section 2(1) of the Securities and Futures Act 2001;

“business”, in relation to a registered business trust, means the business relating to the trust property of the registered business trust and managed and operated by the trustee‑manager of the registered business trust in its capacity as trustee‑manager of the registered business trust;

“business trust” means —

(a) a trust that is established in respect of any property and that has the following characteristics:

(i) the purpose or effect, or purported purpose or effect, of the trust is to enable the unitholders (whether by acquiring any right, interest, title or benefit in the property or any part of the property or otherwise) to participate in or receive profits, income or other payments or returns arising from the management of the property or management or operation of a business;

(ii) the unitholders of the trust do not have day‑to‑day control over the management of the property, whether or not they have the right to be consulted or to give directions in respect of such management;

(iii) the property subject to the trust is managed as a whole by a trustee or by another person on behalf of the trustee;

(iv) the contributions of the unitholders and the profits or income from which payments are to be made to them are pooled; and

(v) either —

(A) the units in the trust that are issued are exclusively or primarily non-redeemable; or

(B) the trust invests only in real estate and real estate-related assets specified by the Authority in the Code on Collective Investment Schemes mentioned in section 284 of the Securities and Futures Act 2001 and is listed on an approved exchange; or

(b) a class or description of trust that is declared by the Authority, by notice published in the Gazette, to be a business trust for the purposes of this Act,

but does not include the types of trusts specified in the Schedule;

“chief executive officer”, in relation to the trustee-manager of a registered business trust, means any one or more persons, by whatever name described, who —

(a) is in the direct employment of, or acting for or by arrangement with, the trustee-manager of the registered business trust; and

(b) is principally responsible for the management and conduct of the business of the trustee-manager of the registered business trust, or part of the business of the trustee-manager, as the case may be;

[Act 30 of 2022 wef 12/03/2024]

“company” has the meaning given by section 4(1) of the Companies Act 1967;

“corporation” has the meaning given by section 4(1) of the Companies Act 1967;

“creditor”, in relation to a registered business trust, means a creditor of the trustee‑manager of the registered business trust where the liability owing to the creditor was incurred by the trustee‑manager on behalf of the registered business trust;

“debenture” has the meaning given by section 2(1) of the Securities and Futures Act 2001 and, in relation to a registered business trust, means a debenture issued by the trustee‑manager of the registered business trust in its capacity as trustee‑manager of the registered business trust;

“deed” means any deed which creates a trust or provides for the governance of the affairs of the trust and the conduct of its business and includes any instrument amending or affecting the deed;

“derivative”, in relation to a unit in a business trust, means any right or interest, whether legal or equitable, in the unit in the business trust, by whatever name called, and includes any option to acquire any such right or interest in the unit in the business trust;

“director” has the meaning given by section 4(1) of the Companies Act 1967;

“document” has the meaning given by section 4(1) of the Companies Act 1967;

“electronic communication” has the meaning given by section 4(1) of the Companies Act 1967;

“exempt private company” has the meaning given by section 4(1) of the Companies Act 1967;

“expert” has the meaning given by section 4(1) of the Companies Act 1967;

“financial year”, in relation to a registered business trust, means the period in respect of which any profit and loss account of the registered business trust laid before unitholders of the registered business trust in general meeting is made up, whether that period is a year or not;

“liabilities”, in relation to a registered business trust, means the liabilities incurred by the trustee‑manager of the registered business trust on behalf of the registered business trust;

“licensed insolvency practitioner” has the meaning given by section 2(1) of the Insolvency, Restructuring and Dissolution Act 2018;

“limited liability partnership” has the meaning given by section 4(1) of the Limited Liability Partnerships Act 2005;

[Act 30 of 2022 wef 12/03/2024]

“liquidator”, in relation to a registered business trust, means the person appointed under section 48(1) to take responsibility for winding up the registered business trust or the Official Receiver when acting as liquidator of the registered business trust;

“listed”, in relation to a registered business trust, means a registered business trust that has been admitted to the official list of an approved exchange in Singapore and has not been removed from that official list;

[Act 30 of 2022 wef 12/03/2024]

“listing rules” has the meaning given by section 2(1) of the Securities and Futures Act 2001;

“officer” has the meaning given by section 4(1) of the Companies Act 1967;

“Official Receiver” has the meaning given by section 2(1) of the Insolvency, Restructuring and Dissolution Act 2018;

“profit or loss”, in relation to a registered business trust, means the profit or loss resulting from operations of that registered business trust;

“public accountant” means a person who is registered or deemed to be registered under the Accountants Act 2004 as a public accountant;

“registered business trust” means a business trust that is registered by the Authority under section 4(1);

“related corporation” has the meaning given by section 4(1) of the Companies Act 1967;

“replacement trustee‑manager” means a company that has consented in writing to its election by the unitholders of a registered business trust to replace the resigning trustee‑manager or temporary trustee‑manager (as the case may be) of the registered business trust;

“resigning trustee‑manager” means the trustee‑manager of a registered business trust that, in accordance with this Act, proposes to resign, is removed or has resigned from the position of trustee‑manager of the registered business trust;

“substantial shareholder” means a person who has a substantial shareholding in a company in accordance with section 81 of the Companies Act 1967;

“temporary trustee‑manager” means a company that has been appointed as the temporary trustee‑manager of a registered business trust under section 21;

“trust property”, in relation to a business trust, means all property and rights of any kind whatsoever which are held on trust for the unitholders of the business trust, in accordance with the terms of the trust deed, including —

(a) contributions of money or any other assets to the business trust;

(b) property that forms part of the assets of the business trust under the provisions of this Act;

(c) property arising in relation to any contract, agreement or arrangement entered into by or on behalf of the trustee in its capacity as trustee of the business trust;

(d) property arising in relation to any claims or rights held by or on behalf of the trustee in its capacity as trustee of the business trust;

(e) proceeds from money borrowed or raised by the trustee of the business trust for the purposes of the business trust;

(f) property acquired, directly or indirectly, with the contributions or money mentioned in paragraph (a), (b), (c), (d) or (e) or with the proceeds thereof; and

[Act 30 of 2022 wef 12/03/2024]

(g) profits, income and property derived, directly or indirectly, from contributions, money or property mentioned in paragraph (a), (b), (c), (d) or (e);

“trustee‑manager”, in relation to a registered business trust, includes a replacement trustee‑manager and temporary trustee‑manager;

“unit”, in relation to a business trust, means a share in the beneficial ownership in the trust property of the business trust;

“unitholder” means a person who holds units in a business trust;

[2/2009; 10/2013; 4/2017; 40/2018]

[Act 30 of 2022 wef 12/03/2024]

“unlisted registered business trust”, for the purposes of sections 63A to 63G, means a registered business trust the units of which are not listed for quotation or quoted on an approved exchange in Singapore or any securities exchange outside Singapore;

[Act 30 of 2022 wef 12/03/2024]

“VCC” or variable capital company has the meaning given by section 2(1) of the Variable Capital Companies Act 2018.

[Act 30 of 2022 wef 12/03/2024]

PART 2

REGISTRATION OF BUSINESS TRUSTS

Application for registration

3.—(1)  The proposed trustee‑manager of a business trust may apply to register the business trust by lodging an application with the Authority in such form and manner as the Authority may prescribe.

(2)  An application made under subsection (1) must be accompanied —

(a) by such information or record as the Authority may require; and

(b) by a prescribed application fee which is non‑refundable and must be paid in such manner as the Authority may specify.

Registration of business trusts

4.—(1)  The Authority may, on an application lodged with it by the proposed trustee‑manager of a business trust in accordance with section 3, register the business trust.

(2)  The Authority may refuse an application to register a business trust if —

(a) the Authority is not satisfied that the application lodged has complied with section 3;

(b) the Authority is not satisfied that the proposed trustee‑manager of the business trust is a company and not an exempt private company;

(c) the Authority is not satisfied that the proposed trustee‑manager does not carry on any business other than the business of management and operation of the business trust in respect of which the application has been lodged;

(d) the Authority is not satisfied that the proposed trustee‑manager has —

(i) complied with sections 14(1), 15(1), 28(1) and 30(1) (as modified by subsection (6) or pursuant to subsection (7)); and

(ii) satisfied any other criteria that the Authority may prescribe;

(e) the proposed trustee‑manager or any of its substantial shareholders is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere;

(f) a receiver, a receiver and manager, a judicial manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of any property of the proposed trustee‑manager or any of its substantial shareholders;

(g) the proposed trustee‑manager or any of its substantial shareholders has, whether in Singapore or elsewhere, entered into a compromise or scheme of arrangement with its creditors, being a compromise or scheme of arrangement that is still in operation;

(h) an enforcement order against the proposed trustee‑manager or any of its substantial shareholders in respect of a judgment debt has been returned unsatisfied in whole or in part;

[Act 25 of 2021 wef 01/04/2022]

(i) the proposed trustee‑manager or any of its substantial shareholders or officers —

(i) has been convicted, whether in Singapore or elsewhere, of an offence involving fraud or dishonesty or the conviction for which involved a finding that it, he or she acted fraudulently or dishonestly; or

(ii) has been convicted of an offence under this Act; or

(j) the Authority is of the opinion that it would be contrary to the public interest to register the business trust.

(3)  Subject to subsection (4), the Authority must not refuse an application to register a business trust under subsection (1) without giving the proposed trustee‑manager of the business trust an opportunity to be heard.

(4)  The Authority may refuse an application to register a business trust on any of the following grounds without giving the proposed trustee‑manager of the business trust an opportunity to be heard:

(a) the proposed trustee‑manager is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere;

(b) a receiver, a receiver and manager, a judicial manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of any property of the proposed trustee‑manager;

(c) the proposed trustee‑manager has been convicted, whether in Singapore or elsewhere, of an offence involving fraud or dishonesty or the conviction for which involved a finding that it had acted fraudulently or dishonestly.

(5)  The proposed trustee‑manager of any business trust who is aggrieved by the refusal of the Authority to register the business trust under subsection (2) may, within 30 days after it is notified of the decision, appeal to the Minister whose decision is final.

(6)  For the purpose of determining whether subsection (2) is satisfied in relation to the business trust —

(a) references in Division 1 of Part 3 and Part 4 to a registered business trust is to be read as including a reference to the business trust mentioned in subsection (1); and

(b) references in Division 1 of Part 3 and Part 4 to the trustee‑manager of the registered business trust is to be read as including a reference to the proposed trustee‑manager of the business trust.

(7)  The Authority may prescribe any other modifications to the provisions of Division 1 of Part 3 and Part 4 that may be necessary for their proper application to a proposed trustee‑manager of a business trust that has not yet been registered under this Act.

Register and notification of change in particulars

5.—(1)  The Authority must establish and maintain a register of registered business trusts, and may prescribe the manner in which the register is established or maintained, including the details or particulars required to be entered in the register.

(2)  Any person may, upon payment of such fee as may be prescribed, inspect and take an extract from the register established under subsection (1), and any such extract, certified by the Authority to be a true copy, is admissible as evidence in any legal proceedings.

(3)  Where a change occurs in any matter in relation to a registered business trust, particulars of which are required to be entered in the register of registered business trusts under subsection (1), the trustee‑manager of the registered business trust must, not later than 14 days after the occurrence of the change, provide particulars of the change to the Authority in the prescribed form and manner.

(4)  Any trustee‑manager of a registered business trust which contravenes subsection (3) shall be guilty of an offence.