In Part One, we covered a number of technical charity law issues examined in the Law Commission Report of 14 September 2017. This note deals with further issues dealt with in that Report.
Making Regulation of Charity Land Transactions Less of a Burden
When a charity sells, lets, or mortgages its land, it is subject to restrictions and requirements (as explained in our Guidance Note: Charity Property Transactions). Compliance with these can give rise to substantial professional costs and can cause delays to charity land transactions.
The Report recommends that the current position, whereby trustees have a duty to obtain and consider advice before entering into certain land transactions, should remain. However, it notes that there is strong support for trustees to be able to have more flexibility in how they obtain advice about any particular transaction so that the advice is tailored to that transaction. It also emphasises the importance of guiding trustees to the right category of adviser and the desirability of them obtaining advice from a property professional.
The Report proposes modifying the existing advice requirements as follows. Where, currently, charities can only obtain advice from a member of the Royal Institution of Chartered Surveyors, the Report proposes that the category of advisers who may give advice should include members of the Central Association of Agricultural Valuers and fellows of the National Association of Estate Agents, all of whom have professional qualifications, are bound by professional conduct rules, and carry indemnity insurance. The Report proposes that such a property professional should be permitted to advise when the transaction is within their expertise, and that, to enable a charity to save costs, an employee or officer of the charity who is such a property professional should be permitted to advise.
Further, the Report recommends simplification and rationalization of what an adviser currently has to set out in a report in order that in future there is not only more flexibility but also receipt of advice that is more pertinent to the charity’s needs for any particular transaction.
The Report also proposes changes to the “certification” regime. Currently, if trustees dispose of charity land but fail to comply with the advice requirements, purchasers are protected if the trustees provide a certificate in the “completion” document stating that they have complied with the requirements. The Report recommends that the certificate should also be effective if is contained in a contract so that the purchaser is protected from the point of “exchange of contracts”. The Report also proposes that trustees should have power to let the charity officer delegated to sign the contract or completion document to also give the certificate. These changes should help avoid additional transaction costs for purchasers and make purchasers more willing to enter into land transactions with charities.
Other proposals include removal of the need to give public notice of disposals of “designated land”, relaxation of some of the requirements to obtain Charity Commission consent where the charity’s transaction is with certain “connected persons”, and changes to the Charity Commission’s guidance for charities acquiring land.
Improving the Position where there is a Permanent Endowment
The Report proposes not only making clearer the definition in the Charities Act of “permanent endowment” (i.e. property belonging to a charity that cannot be spent), but also making it consistent and more in line with the sector’s understanding of the term. It also proposes reform to the ways in which a charity may use its permanent endowment.
Allowing More Payments to Trustees
The Report recommends a new power for a charity to pay for a supply of goods to it by one of its trustees. This would be equivalent to the existing power to do so where a trustee supplies services.
Streamlining Incorporation and Merger
The Report identifies some problems arising from the law governing the merger and incorporation of charities, in particular in relation to transfer of property and gifts by will to charities that have merged. It proposes changes to the law to remove these problems.
Changes to Charity Commission Powers
The Report suggests changes to the Charity Commission’s powers so that it can, wherever appropriate, refuse to register a charity or refuse to register a change of name by a registered charity because of unacceptability of its name, or require a charity to change its legal or “working” name. At present its powers in these situations are unsatisfactory.
The Report also recommends that there should be power for the Charity Commission to confirm the appointment or election of a trustee where there is uncertainty as to whether a particular person was properly appointed or elected.
Procedural Changes in Legal Proceedings in the Charity Tribunal and the Courts
The Report makes recommendations for changes in relation to:
- 1) authorisation to pursue “charity proceedings”;
- 2) costs protection in the Charity Tribunal;
- 3) suspending decisions pending a challenge; and
- 4) the procedure for references to the Tribunal.
Will any of these proposed reforms be relevant to your charity? Do you think they will be beneficial for your charity or for other charities? As ever, we would like to hear from you.