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
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Solicitors for Charities
Complying with restrictions:
Form E:
This restriction will be complied with if the disposition contains the relevant statement and, if needed, a certificate.
Form F:
A restriction in form F is Schedule 4, Land Registration Rules 2003 will have been entered in the register when an order under section 18 Charities Act 1993 has been made and the Official Custodian has been registered as proprietor. If a disposition has been executed in the name of and on behalf of the Official Custodian by the charity (if it is a corporation) or the charity trustees (if it is not) then whichever version of the restriction appears on the register, an order of the Charity Commission will be required to authorise the disposition. If this is the case, the Property Lawyers and Conveyancing Solicitors should include in the disposition a certificate stating that it has been sanctioned by an order of the Charity Commission or of the Court, as appropriate.
The restriction does not apply to dispositions executed by the Official Custodian.
Form A:
If this restriction has been entered in the register it will not affect a disposition by Property Lawyer and Conveyancing Solicitors acting for joint proprietors. However, if the proprietor is a sole trustee or a custodian trustee it will be necessary for a second trustee to be appointed for the purposes of any dispositions under which capital money arises, unless the trustee is a trust corporation.
Other restrictions:
Other restrictions will be satisfied by producing evidence that the disposition complied with the terms of the restriction. The evidence will take the form of a certificate if the restriction calls for one or a copy of the required consent or order should be lodged if appropriate. If no consent or oder is required in the circumstances, the Property Lawyers and Conveyancing Solicitors should explain the situation in an accompanying letter.
Cancellation of restrictions:
Where a charity's powers are limited and there is a restriction in the register in form E, form F or some other, then this will be cancelled automatically where an application is made to register a transfer of the title by the proprietor provided:
- the restriction has been complied with, and
- the other aspects of the application are in order
There is no need for an application to be made to cancel the restriction.
If a charity is remaining as proprietor of a title following a disposition, such as a Lease, or a charge (mortgage), any charity restriction will remain the the register.
There may be rare occasions when a charity wishes to cancel a restriction in the register when no disposition has been made. For example, it may be that the trusts of the charity change and the restriction in the register is no longer appropriate. In such cases the Property Lawyers and Conveyancing Solicitors should make an application to cancel the restriction, accompanied by the relevant evidence.
Keeping the register up to date:
Estates owned by charities tend to be held for a long time. During this ownership many events may occur that affect the charity's powers, status and trustees. For example, there may be deaths, resignations or appointments of new trustees. The charity may be reclassified as an exempt charity, it may become incorporated, the estate may be vested in a trust corporation or the Charity Commission may intervene. If any of these occur the Property Title Deeds must be updated to reflect the current position.
Change of trustee:
Where registered Property is owned by charity trustees, a change in the trustees will not automatically change the ownership of the Property Title Deeds. The general Law relating to the appointment and discharge of trustees applies also to charities. However, section 83 Charity Act 1993 makes additional provisions relating to charity trustees. Under section 83 Charities Act 1993 a charity may, provided its trusts permit it, appoint and discharge trustees by resolution of a meeting of the charity trustees, members or other persons. A memorandum signed at the meeting is sufficient evidence of the resolution.
To be effective to transfer the legal estate in the Property the memorandum must:
- be executed as a deed
- be executed by the person presiding at the meeting or in some other manner directed by the meeting
- be witnessed by two persons present at the meeting, and
- relate to Land to which section 40 of the Trustee Act 1925 extends
In order for the Land Registry to alter the register so as to vest the Property or Charge (mortgage) in the current trustees the original memorandum, evidence of the death of any trustee currently shown in the Property Title Deeds who has died, and a certificate by the Property Lawyers or Conveyancing Solicitors acting for the charity that it has power to use the procedure set out in section 83 must be produced. Since the memorandum will not necessarily identify all the current trustees it will help the Land Registry if the Property Lawyers and Conveyancing Solicitors provide a complete list of their full names, certified as such by the secretary or Solicitor to the trustees.
Appointment of a new trustee may be made by way of a transfer and, as such a transfer is not a sale, lease or other disposal by the charity, section 37 (2) Charities Act 1993 does not apply to it. The Land Registry will accept any transfer by way of appointment of a new trustee, provided it is so expressed, without any certificate under that sub-section.
Where an application is made to the Land Registry to effect a change of trustees of a non-exempt charity, whether under the provisions of rule 161 Land Registry Rules 2003 or to register an appointment made by way of transfer, there is a duty to apply for a restriction in form E to be entered in the Property Title Deeds. This is unless such a restriction has already been entered. The application for the restrictions must be made by the Property Lawyers and Conveyancing Solicitors either on form RX1 or in the transfer.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
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Ford Banks Irwin Solicitors
50 Stothard Road
Manchester
M32 9HB
Tel: 0161 866 8999
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