Data trusts

A data trust may be a particularly suitable mechanism for mixed use developments, which involve multiple property owners and different property types, because:

• It can be used to facilitate the analysis of a data set as a whole to identify ways that the development can improve its ESG-related activities, benefitting from economies of scale;
• It can also be used to compartmentalise data for different owners, allowing them to develop their own transition plans and monitor their building’s performance. 

But data trusts do not necessarily require a separate legal entity and fiduciary duties: a data trust can also be established through a framework of agreements that each participant agrees to and accepts.

Governance

When setting up, and using, a data trust, there are considerations around its governance:

• Oversight

If a Data Trustee is appointed for the data trust, the Data Trustee will have responsibility for the stewardship of, and decision making from, the data contained within the trust. When appointed, the Data Trustee also represents the interests of the Trust members and negotiates between them on the use of the data. 

Data trusts will typically be governed by trust rules or a trust code that each participant agrees to follow. These address issues including what data is being collected, who will share the data, and the permitted uses of the data. 

Authorisation of access and decision-making

A data trust typically requires one party to authorise another to make decisions about the data. It is important that clear governance is in place. If a data trust is created for a mixed-use development, for example, there must be clarity about who has this responsibility – and about the extent of the developer’s long-term involvement. 

Data provision and usage agreements

There should be a formal agreement in place with every entity that has access to or inputs to the data trust. Agreements typically promote accessibility and participation so there can be maximum benefits to sharing the data.

Depending on the legal framework under which a trust is established, there may be a series of bilateral agreements, or there may be a multi-party collaboration agreement that address the sharing and use of the data in accordance with those agreements and the trust rules or code. Some entities may need different terms because they have different requirements, targets and resources.