Property Lawyers and Conveyancing Solicitors in Manchester 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
Restrictions for non-exempt charities:
Under s. 37 of the Charities Act 1993, the registrar is under an obligation to enter an appropriate restriction in the register when registering a disposition in favour of a non-exempt charity. The statement in the disposition will show if the charity is non-exempt. A form of wording is as follows:
'No disposition by the proprietor of the registered Property to which section 36 or section 38 of the Charities Act 1993 applies is to be registered unless the instrument contains a certificate complying with section 37(2) or section 39(2) of that Act as appropriate'
The term 'disposition' includes the grant and release of easements. The term 'registered' is also wide and includes not only the making of a 'guaranteed' entry in the register but also the cancellation of such an entry. It can even include the cancellation of an entry stating that a certain deed is expressed to grant an easement.
The Official Custodian for Charities ('Official Custodian')
In addition to the above restriction, when the Official Custodian is being registered as proprietor as a result of a vesting order made under section 18 Charities Act 1993 a further restriction is required. The Property Lawyers and Conveyancing Solicitors will usually make the application for entry of this restriction. A form of wording is as follows:
'No disposition executed by the trustees of [charity] in the name and on behalf of the proprietor shall be registered unless the transaction is authorised by an order of the Court or of the Charity Commission, as required by section 22(3) of the Charities Act 1993'
Restrictions for exempt charities:
When the Conveyancing Solicitors and Property Lawyers make an application to register an exempt charity as proprietor, the Conveyancing Solicitors and Property Lawyers must provide a copy of the document creating the charitable trust. If the trust document limits the power of the charity to deal with Property, the Conveyancing Solicitors and Property Lawyers will usually consider applying for a restriction to be entered in the title deeds reflecting the limitations.
Restrictions where trustees are registered as proprietors:
Under s.6 Trusts of Land and Appointment of Trustees Act 1996, trustees of charity Property have all the powers of disposition of an absolute owner. These powers are, however, limited by the provisions of that Act insofar as they apply to such trustees.
Provisions regarding the payment of capital money:
Under section 6(6) Trusts of Land and Appointment of Trustees Act 1996 the powers conferred by that section must not be exercised in contravention of any other enactment. Section 27(2) Law of Property Act 1925, as amended provides that:
'Notwithstanding anything to the contrary in the instrument (if any) creating a trust of land or any trust affecting the net proceeds of sale of the land if it is sold, the proceeds of sale or other capital money shall not be paid to or applied by the direction of fewer than two persons as trustees, except where the trustee is a trust corporation.'
When registering joint proprietors, whether or not one of them is a trust corporation, the Land Registry will enter a restriction to reflect this limitation as follows:
'No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the Court.'
In the case of a sole trustee or a custodian trustee, it is for the Conveyancing Solicitors and Property Lawyers to apply for the restriction either in the transfer to the trustee or on the form RX1. This will ensure compliance with section 27(2) Law of Property Act 1925.
Provisions regarding consents:
Under section 8(2) Trusts of Land and Appointment of Trustees Act 1996, if the disposition creating the trust requires a consent to be obtained, the powers conferred by section 6 may not be exercised without that consent.
For an exempt charity an appropriate restriction should be applied for as indicated above. In the case of a non-exempt charity, this point will be covered by the certificate to be provided under the terms of the form E restriction, so no further restriction in the Property title deeds is required.
First registration of a non-exempt charity:
When a non-exempt charity applies for first registration voluntarily under the provisions of section 3 Land Registration Act 2002 or following an event that triggers compulsory registration under section 4, in circumstances where that event is no a disposition for the purposes of the Charities Act 1993, there will not be a deed containing the statement referred to above. In these circumstances, the Conveyancing Solicitors and Property Lawyers must make an application using the appropriate form for the entry of a restriction in form E.
Other restrictions:
Where there are any other limitations on the powers of particular charities, the Conveyancing Solicitors and Property Lawyers should consider applying for any appropriate restrictions to be entered in the the Property title deeds.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
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M32 9HB
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