THE EVERGREEN LAND TRUST ASSOCIATION
SAMPLE DECLARATION OF TRUST
AND TRUST AGREEMENT
This Declaration of Trust and Trust Agreement (“Trust Agreement”), made by _______________ (“Trustor”), and by The Evergreen Land Trust Association, a Washington nonprofit corporation ("Trustee") which hereby acknowledges receipt this day from Trustor of those certain premises known as and numbered as... (legal description)
Together with all appurtenances thereto and improvements thereon, and the dues, issues and monies thereof, and such other or substitute property or properties as Trustee may own or hold hereunder (hereinafter referred to as the "House")
IN TRUST, to hold and manage the same as follows:
I. The name of the trust shall be the Student Cooperative Housing Trust. (“Trust”)
II. The period of this Trust shall be perpetual.
III. The purposes of this Trust are as follows:
A. To maintain and improve the House to form the basis of urban communities particularly for student cooperative housing, and thus to provide an impetus to reverse gentrification;
B. To encourage communal, sustainable, cooperative living as a viable life-style and to provide a basis for cooperative living as a lifestyle choice beyond school;
C. To promote the study of technologies and lifestyle choices that promote a symbiotic relationship with the environment;
D. To promote a sense of cooperation and balance between urban and rural lifestyles;
E. To aid and advance the creation and growth of cooperating communities; and
F. To encourage experimental education and communities of alternative solutions to the present economic, political, and social system.
IV. Definitions.
A. The “Use Agreement” described herein refers to the contract between the Student’s Cooperative Housing Community and the Evergreen Land Trust (ELT) which specifies the terms and conditions under which ELT gives license to occupy the House, and describes the rights and responsibilities of stewardship conveyed by ELT to the Community.
B. The Student’s Cooperative Housing Community, herein referred to as the “Community,” is the collective of individuals, their successors and permitted assigns, who occupy the House as the grantees of the Use Agreement, organized and operating as a cooperative. “Community Members” shall be those individuals who are considered members in good standing of the cooperative.
C. “Occupants” shall mean all individuals residing within the House at any given time, whether Community Members or not.
D. “Community Agreements” shall mean the internal written agreements of the Community, determined by a quorum of no less then two thirds of the membership of the Community, in accordance with a consensus seeking decision making process.
E. All capitalized terms used herein that also appear in the associated Use Agreement, shall have the respective meanings assigned to them as provided in this Trust Agreement.
V. Powers of the Trustee. The Trustee shall have the powers granted to it by law to the extent consistent with the terms and purposes of this Trust Agreement and the Trustee's Articles of Incorporation and Bylaws, a copy of each of which is attached hereto as Exhibits A and B, respectively, for reference. Specifically and without limitation, the Trustee shall be empowered to do the following:
A. To enter into Use Agreements or other arrangements consistent with the purposes and provisions of this Trust for the occupation of lands held by the Trustee hereunder;
B. To purchase, lease, mortgage, or otherwise acquire and dispose of or lien, real or personal property or any interest therein, as the Trustee shall deem appropriate;
C. To act as a guarantor of loans and mortgages negotiated between the occupants and lending institutions, and used to finance improvements on or maintenance of the holding;
D. To raise funds by loan, gift, or otherwise, to make improvements of lands held in the Trust, and to do any and all things which are in good faith deemed expedient and proper to fulfill the purposes of this Trust.
E. To establish fees for membership and occupancy in Trust holdings, which support and further the function and purposes of the Trustee.
VI. Restrictions on the Trustee.
A. The House cannot be sold, exchanged, or otherwise disposed of unless:
1) The Use Agreement has been revoked or terminated and the Trustee, after diligent effort for a sufficient period of not less than 90 days, has been unable to find new occupants who are willing to execute agreements consistent with the Use Agreement and Trust Agreement.
2) The maintenance required for the House becomes greater than its value (or if the House has been damaged beyond repair, thereby constituting an undue financial burden for the Trustee and the occupants), and every reasonable effort has been made to find occupants who will maintain the holding.
B. The House shall not be mortgaged without the consent of the Community; and such action shall be undertaken only for the purpose of improving or maintaining the House, or for other reasons unanimously proposed by the Community and approved by the Trustee within the purposes of this trust.
C. The House shall be maintained as a single communal entity, and shall not be subject to division into separate legal parcels, whether by lot line adjustment with another or other parcel(s), subdivision, planned unit development, horizontal (condominium) regime, or otherwise.
D. The House shall not be occupied or inhabited except under or pursuant to the Use Agreement to which the Trustee is a party.
VII. Responsibilities of the Trustee
A. To establish and enter into a Use Agreements, in conjunction with prospective occupants, who shall become the Community in accordance with the purposes of this Trust;
B. To maintain insurance, taxes, mortgage payments, and adequate maintenance on the House in the absence of Occupants;
C. To enter into and execute such mortgages of the House as are requested by the Community, provided that the Board of Directors of Trustee shall have the final determination of feasibility of such financing, and the use to which the proceeds are put;
D. To attempt, in good faith, to maintain the non-profit status of the trust under Section 501(c) (3) of the Internal Revenue Code of 1954 and its regulations as they now exist or as they may hereafter be amended or superceded;
E. To render an annual report of its own accounts to the Community, and to keep them regularly informed as to its activities;
F. To monitor whether the conditions of the Use Agreement are being fulfilled, and to enforce the same if it is determined that there is any breach or default thereunder;
G. To consider for membership on its Board of Directors two (2) Community Members of the House to serve as voting members thereof, who, if acceptable, shall be elected or appointed to so serve; and
H. In the event of any possible threat to the House or other properties held subject to this Trust or to the Community’s rights to use or occupy the same, the Trustee may, at its discretion, support and defend the Community, and will consider united non-violent action, including civil disobedience.
VIII. Responsibilities of the Community in Executing the Use Agreement
A. To fulfill the purposes of this Trust and to provide responsible stewardship for the House, a Use Agreement shall be established between the Trustee and the occupants organized as a cooperative Community, with each Community Member personally and proportionately responsible for performing the duties of Trust as expressed herein.
B. The Community shall be self-governing within the limitations set forth in the Use Agreement, and the Trustee shall not interfere with the day-to-day affairs of the Community so long as the Community, and each Community Member, performs their obligations under the Trust and Use Agreements.
C. The Use Agreement shall serve as the license to occupy the House, and the Community shall be responsible for performing the duties expressed in the Use Agreement and other responsibilities as the Trustee and the Community shall agree are necessary to the carrying out of this Trust.
D. The Community shall regularly inform the Trustee as to the situation of the holding, and act in accordance with the membership requirements of the Trustee and through representation on its Board of Directors
E. The Community shall pay for all the costs of managing, maintaining, and improving the House, in accordance with the Use Agreement.
F. The Community shall assess monthly fees to the occupants, which shall fall within the applicable state and county standards for affordable housing.
G. Funds received by the Community in the course of the management of the House shall be applied in the following priorities to.
1) Timely payment of principal and interest of all secured debt, now or hereafter against the House, and performance of all other obligations secured thereby;
2) Payment of all statutory liens upon House with the right reserve to contest, bond against, and dispute and settle the same to the extent permitted by the holders of secured debt against the House;
3) The maintenance and improvement of the House;
4) The support of new or in need cooperatives or as grants to other charitable organizations dealing with affordable housing or other purposes of the ELT.
5) The gifting or lending of funds for the acquisition of additional property or rights or estates therein to be held in this Trust
6) The gifting or lending of funds for the maintenance and improvement of additional trust properties held by the Trustee
H. The Community shall ensure that no substantial part of the direct or indirect activities of this Trust shall consist of carrying on propaganda, or otherwise attempting to influence legislation, or of participating in, or intervening in (including the publication or distribution of statements), any political campaign on behalf of any candidate for public office.
I. Not withstanding any other provision hereof, the Community shall not conduct or carry on any activities not permitted to be conducted or carried on by an organization exempt under Section 501(c)(3) of the Internal Revenue Code and its regulations as they now exist or as they may hereafter be amended, or by any organization contributions to which are deductible under Section 170(c) (2) of such Code and regulations as they now exist or may be hereafter amended.
IX Dispute Resolution
All disputes arising out of this Trust Agreement shall be resolved in the Courts of the State of Washington in and for King County, or such successor Courts. This Trust Agreement and all disputes arising out of this Trust shall be governed by the laws of the State of Washington in effect when the dispute is to be decided, unless this will work a manifest injustice, in which case the law in effect at the time the dispute began shall be used. At the option of either the Trustor or Trustee, any dispute may be arbitrated under RCW 7.04 or such successor law.
X. Dissolution and Continuity.
In the event of the dissolution or cessation of The Evergreen Land Trust as Trustee, title to the House and all other rights in properties held under this Trust shall be transferred by ELT to another appropriate trustee to act as successor trustee under this Trust Agreement or a similar trust agreement. In the absence of such, the Community may establish a suitable successor trustee. If no successor trustee is found or formed within 120 days after dissolution or cessation of The Evergreen Land Trust as Trustee, and a trust agreement with such successor trustee is not excecuted within an additional one year period, any trustee or director of The Evergreen Land Trust, or Community Member, shall notify the Attorney General of the State of Washington to bring an appropriate action to terminate this Trust and transfer the Trust assets to an entity having purposes consistent with the purposes of this Trust hereinabove set forth.
XI. Authority.
Each party hereto represents to the other that it has the corporate power and capacity, and has taken all internal actions necessary to authorize the execution and delivery of this Declaration of Trust and Trust Agreement, to carry out all acts pursuant hereto in accordance with the intents and purposes hereof.
XII. Preservation of 501(c)(3) Nonprofit Status
If any powers conferred upon the Trustee by state law or by the terms of this Trust Agreement jeopardize the tax exempt status of the Trustee, then this Trust Agreement shall automatically be amended to conform to the appropriate federal tax law and such offending powers shall be null and void;
XIII. Saving.
If any provision hereof shall be held to be invalid, or unenforceable in any application, the remainder of this Declaration of Trust and Trust Agreement shall remain in full force and effect as though such provision had never been included herein, and if such provision has instead been held unenforceable in any application, such provision shall remain in full force and effect for all other applications.