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Property Lawyers and Conveyancing Solicitors in Manchester at Ford Banks Irwin Solicitors for Charities

 
Please note: Not to be used or relied upon without legal advice. These notes are for illustrative purposes ONLY

. . . continued from page 5

Solicitors for Charities

The certificate required in the disposition:
Where a non-exempt charity or the trustees of such a charity are registered as proprietors of an estate there should be an appropriate restriction on the register.  This restriction will be in Form E or in a form used before the Land Registration Act 2002 came into force. The effect of this restriction is to require that, in addition to the appropriate statement referred to in the previous section, the disposition must also contain a certificate where either:
- it is a disposition of registered Property to which section 36 Charities Act 1993 apples
- it is charge or mortgage to which section 38 of the Charities Act 1993 applies

The certificate should normally follow the appropriate statement in the deed effecting the disposition.  The form of the certificate depends on whether the charity trustees have complied with the relevant provisions of the Charities Act 1993 (so far as applicable to the disposition) and whether the disposition is a charge or mortgage.  The alternative to complying with the provisions of the Charities Act 1993 is to obtain the sanction of an order of the Charity Commission or the Court for the disposition.  Where the charity trustees have complied with section 36 Charities Act 1993 (which relates to dispositions other than mortgages) the certificate required by the Conveyancing Solicitors and Property Lawyers will, therefore, be on the following lines:
'(Description of charity trustees and capacity in which they certify) certify that they have power under its trusts to effect his disposition and that they have complied with the provisions of the said section 36 so far as applicable to this disposition.'

Where the charity trustees have complied with section 38 Charities Act 1993 (which relates to mortgages or charges) the certificate required by the Conveyancing Solicitors and Property Lawyers will be on the following lines:
'(Description of charity trustees and capacity in which they certify) certify that they have power under its trusts to effect this charge and that they have obtained and considered such advice as is mentioned in section 38(2) of the Charities Act 1993'

If the charity does not have trusts in the ordinary sense, the words 'under its trusts' may be replaced by:
'under the provisions establishing it as a charity and regulating its purposes and administration.'

Where the disposition has been sanctioned by an Order of the Charity Commission or the Court, the certificate required by the Conveyancing Solicitors and Property Lawyers will on the following lines:
'(Description of charity trustees and capacity in which they certify) certify that this disposition (or charge / mortgage) has been sanctioned by an Order of the Charity Commission (or the Court)'.

Where a disposition or charge (mortgage) contains any of the certificates described above when a person acquires an interest in an estate for money or money's worth it shall be conclusively presumed that the facts are as stated in the certificate.


Who gives the certificate ?  
The certificate must be given by the charity trustees so they will need to join in and execute the disposition or charge (mortgage) in order to give the certificate.  The Charities Act 1993 defines 'charity trustees' as the persons having the general control and management of the administration of the charity. Where the charity is a trust, this will generally be the managing trustees, whether or not they are also the registered proprietors.  Where the charity is a body corporate, for example a company limited by guarantee or a parochial church council, it will generally be the directors or members.  Occasionally, some form of governing council may administer the charity.


How should the charity trustees be described ?
Where the charity is a 'trust', Conveyancing Solicitors and Property Lawyers suggest that the charity trustees (whether or not they are incorporated under Part VII of the Charities Act 1993) be described in one of the following ways.
- 'The transferors (or chargors as the case may be), the trustees of the charity'

The following wording is appropriate where the charity trustees are also the registered proprietors.
- 'The trustees of the charity .....'
- 'The members of the ..... of the charity, being the persons who have the general control and management of its administration .....'

If the Property is vested in holding trustees or a custodian trustee and the charity is administered by managing trustees or a governing council, it is generally convenient for two of them (or more if desired) to be authorised to execute the deed on behalf of them all.  In this case there is no need to give the names of all the charity trustees, and the wording in the second and third examples above may be used.  If there is no delegated authority all the trustees or members of the governing council should be named in the certificate and should execute the deed.

Where the charity is a 'company' and the directors are giving the certificate as they usually will, Conveyancing Solicitors and Property Lawyers may describe them as:
- 'The directors of the charity (or if preferred, of the Company), being the persons who have the general control and management of its administration....'

Where the charity is 'some other kind of corporate body' and the members are giving the certificate, Conveyancing Solicitors and Property Lawyers may describe them as:
- 'The members of the charity (or use term by which the charity is generally known, e.g. the society, the association, the board, the council, the fund), being the persons who have the general control and management of its administration.'

If the incorporated charity has a governing council, the above wording may be adapted, for example:
- 'The members of the governing council of the association, being the persons who have the general control and management of its administration'

In these cases it is usual for two (or more, if desired) of the directors or members to be authorised to execute the deed on behalf of them all. There is no need to give the names of all the directors or members.  If there is no delegated authority all the directors or members should be named in the certificate and should execute the deed.


Unregistered Property:
Where unregistered Property is held by or in trust for a charity, the owners powers to dispose of it are restricted in much the same way as they would be if their title were registered.  Therefore, when examining a title on first registration, Land Registry will apply the principles outlines above as if the appropriate restriction had applied to the charity disposing of the Property. Land Registry will be able to determine if a certificate is appropriate because the requirement that the disposition contains statements about the Property, the charity and the nature of the disposition also applies to conveyances, mortgages and leases of unregistered Property.  Land Registry therefore recommend that any disposition, to which section 36 or 38 Charities Act 1993 applies, of unregistered Property by a non-exempt charity contains a certificate along the lines of one of those set out above when it is appropriate to the circumstances of the disposition.


When a certificate is not required
There will be some occasions when a certificate should not be included in a deed because the disposition is not subject to section 36 or, if a charge (or mortgage) to section 38 Charities Act 1993.  These are dispositions referred to in section 36(9)(a), (b) and (c) of that Act and charges to which the provisions of section 38 are disapplied by section 38(5) of that Act.

These types of dispositions will require one of the statements referred to above, depending on whether the disposition is a mortgage or another form of disposition.  Also, a certificate should not be included in a deed that appoints, or by virtue of section 83 Charities Act 1993 has effect as if it appointed, a new trustee or is made in consequence of the appointment of Property held by or in trust for a charity.   
  
   

(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)

 
. . . continued on page 7 (Property Lawyers and Conveyancing Solicitors in Manchester page 7)  


If you require any further information please telephone 0161 866 8999 and we will be happy to help.

    

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