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
The Charity Commission:
The Charity Commission has extensive powers by order to intervene in the administration of non-exempt charities. Broadly, the powers are exercisable to ensure the proper administration of charities and to protect charity Property against misconduct or mismanagement. They include a power to appoint an interim manager who shall act as receiver and manager in respect of the Property and affairs of a charity.
Where an interim manager is appointed the order may confer on him or her such powers and duties of the charity trustees as are specified in the order and provide for those powers to be exercised by him or her to the exclusion of the charity trustees.
Where any application is made to the Land Registry pursuant to any such order the Property Lawyers and Conveyancing Solicitors must produce a certified copy of the order.
The Charity Commission may, by order, appoint new trustees or vest Property in the Official Custodian. If an order under section 18 Charities Act 1993 vests Property in the Official Custodian, an application must be made for entry of a restriction in Form F in the Property Title Deeds. This will prevent the charity trustees from exercising their powers in the name of the Official Custodian without authorisation.
Change of circumstances:
There are some situations when no disposition has been made but when it is necessary for the Property Lawyers and Conveyancing Solicitors to submit an application to Land Registry to enter a restriction in the Property Title Deeds. In the following circumstances the Property Lawyers and Conveyancing Solicitors should make an application on form RX1 to enter a restriction in Form E:
- Where registered Property is held by or in trust for an exempt charity and the charity becomes a non-exempt charity;
- Where registered Property not previously so held becomes held in trust for a non-exempt charity as a result of a declaration of trust by the proprietor;
- Where registered Property is held by or in trust for a corporation and the corporation becomes a non-exempt charity.
Where the charity by or in trust for which Property is held becomes an exempt charity, the charity trustees must apply for the restriction to be cancelled.
Incorporation under Part VII of the Charities Act 1993:
Under Part VII of the Charities Act 1993, charity trustees may apply to the Charity Commission to be incorporated. If the Charity Commission grants the application then it issues a certificate to that effect. Upon the granting of the certificate the trustees become a body corporate under the name specified in the certificate. The Property of the charity vests in the body corporate, except for that held on behalf of the charity by the Official Custodian.
To keep the Property Title Deeds up to date, an application for amendment of the register should be made by the Property Lawyers and Conveyancing Solicitors against all titles of which the charity trustees are the registered proprietors. The application should be described as 'Application to amend the register on the incorporation of a charity' and be accompanied by a certified copy of the certificate of incorporation.
The Land Registry will complete the application by canceling the existing proprietorship entry and entering the name of the body corporate.
Dissolution of a body corporate under Part VII of the Charities Act 1993:
Part VII of the Charities Act 1993 also gives the Charity Commission power by order to dissolve a body corporate incorporated, or treated as being incorporated, under that part.
The order has the effect of vesting the Property in the trustees of the charity where it has up to then been held by the body corporate or by any other person (apart from the Official Custodian) on trust for the charity. The order may also direct that particular Property be vested in a specified person as trustee for, or nominee of, the charity or such persons other than the charity trustees as the Charity Commission may specify.
Change of name of a charity:
The Charity Commission has power to require a non-exempt charity to change its name. Where that charity is a company incorporated under the Companies Acts the Registrar of Companies must issue a new certificate of incorporation for the company.
A charity can change its name by its own decision. Where the charity is a registered charity it must notify its change of name to the Charity Commission.
Whether or not the change of name was compulsory, Property Lawyers and Conveyancing Solicitors should make an application to change the name of the charity or the description of the trustees on the Property Title Deeds. Any new certificate of incorporation must be lodged.
Merger of charities:
The Charities Act 2006 contains provisions to facilitate the merger of charities. As an alternative to executing a number of transfers of registered Property, the transferring charity may execute a pre-merger vesting declaration under section 75E of the Charities Act 1993. The declaration must be made by deed for the purposes of the section by the charity trustees of the transferor, must be made in connection with a relevant charity merger, and must provide that all of the transferor's Property is to vest in the transferees on such date as is specified in the declaration.
The declaration operates on the date specified in the declaration to vest the legal title to all of the transferor's Property in the transferee, without the need for any further document transferring it. However the declaration is ineffective to vest registered Property unless registered under the Land Registration Act 2002. The declaration is also ineffective to vest a registered charge (mortgage) or any Property held by the transferor under a Lease or agreement which contains any covenant (however described) against assignment of the transferor's interest without the consent of some other person, unless that consent has been obtained before the specified date. Evidence of consent should therefore be included by the Property Lawyers and Conveyancing Solicitors with the application.
The declaration need not be in a form prescribed by the Land Registration Rules 2003. It should however contain the statements prescribed by rr 179 and 180 Land Registration Rules 2003. Where the transferor is a non-exempt charity the statement will usually refer to paragraph (b) of section 36(9) of the Charities Act 1993. In that case the disposition is not caught by the terms of a restriction in form E in schedule 4 Land Registration Rules 203 and need not include the certificate under section 37(2) Charities Act 1993. However an order of the Charity Commission will be required to effect the merger if the trusts of the charity do not authorise it. In that case the disposition will not be within section 36(9) so that it must contain the statement referring to section 36 applying and the certificate that it has been sanctioned by an order of the Charity Commission.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
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