Is a shareholder of a Real Estate Investment Trust entitled to a claim of diminution in the value of the trust's assets?

Everest next submits that the rule in Foss v. Harbottle does not apply to claims brought by beneficiaries of a trust because the shareholders of a REIT, unlike the shareholders of a company, are the beneficiaries of a trust and have a beneficial interest in the assets of the trust. Accordingly, Everest submits, when the assets of the trust are damaged, as in an improvident sale, it is the beneficiaries who suffer the loss, not the trust and not the trustees who only hold legal title. Therefore, Everest claims that, in the case of a trust, a claim of diminution in the value of the trust assets is not a consequential loss, but rather a direct and personal claim of the beneficiaries for which each beneficiary can maintain a personal action. CONCLUSION

I have come to the conclusion that it is not “plain and obvious” that the rule in Foss v. Harbottle applies to the REIT in this action in the present motion in particular, in the absence of evidence with respect to the nature and characteristics of the REIT. That is sufficient to dispose of this application.