New legislation in relation to property has a tendency to impose more onerous obligations on estate owners rather than relaxing the rules. By way of a refreshing change, the main aim of the Charities Act 2022 (2022 Act) is to reduce the administrative burden on charities, saving them both time and money. It is understood that the 2022 Act will be implemented on a staggered basis between now and Autumn 2023 with considerable guidance still awaited, but it is clear that the changes affecting charity land will provide more clarity and flexibility for the trustees.
In this alert we will highlight the main changes which trustees need to be aware of and how they will impact on property transactions.
The Charities Act 2011 which governs the disposal of charity land imposes restrictions to ensure that charities obtain the best deal before selling or leasing land, through either an order of the court or consent from the Charity Commission. This works well when the charity is the sole owner but causes problems where a trustee holds land on trust for multiple owners where only one of them is a charity.
The 2022 Act clarifies that the restrictions will only apply where the whole of the charity land being disposed of is held either:
- by a corporate charity which owns the land beneficially and solely for its own benefit and not as a nominee or in trust for another person; or
- by an unincorporated charity which holds land in trust solely for that charity.
This means that the current restrictions will not apply where the charity is one of several joint owners of the land and the whole of the land is being disposed of, for example where land is held partly by or in trust for the charity and partly by or in trust for others.
There is also clarification of the exception for disposals to another charity; the 2022 Act includes a new section to confirm that the exception only applies to disposals to another charity that are intended solely to further the disposing charity’s purposes. This means that the exception will not apply to a commercial transaction (defined as intended to achieve the best price that can reasonably be obtained) or a social investment.
Residential tenancies to employees
Currently Charity Commission consent is needed before a disposal of charity land can be made to an employee of that charity, as an employee is regarded as a “connected person”. The 2022 Act amends the definition of a “connected person” to exclude the employees of a charity where the disposal is the grant of a short, fixed-term or periodic tenancy (of one year or less) to use as their home. This means that while trustees will still need to obtain advice on the grant of these tenancies, the consent of the Charity Commission will no longer be required.
Charities will still have to take advice from suitably qualified persons before disposing of land but the 2022 Act makes it easier (and in some cases, more cost effective) by expanding the choice of advisers who can be instructed. The reference to "qualified surveyor" has been replaced with "designated adviser” to include fellows of the National Association of Estate Agents and the Central Association of Agricultural Valuers. This removes the current obligation to seek advice solely from members of the RICS, although a charity can still do so if it wishes.
Advertising and reports
The 2022 Act will remove the current requirement to advertise a proposed disposition, instead a charity must consider any advice on advertising given by its surveyor but does not need to follow it slavishly. In addition, surveyor’s reports will not have to be as detailed as they are now by focussing on four aspects: the market value; any work that would improve the price; the marketing recommended by the surveyor; and any other relevant recommendation.
Additional statutory statements
To provide protection to purchasers, charity trustees have to include a statutory certificate in the deed effecting the disposition, most commonly the transfer deed, which confirms that the charity has followed the requirements set out in the Charities Act 2011. This obligation will remain, but in addition charities will have to include a similar statement (with clearer wording as prescribed by the 2022 Act) in both the contract for sale and the subsequent deed.
These amendments provide that the statements in the relevant documents are conclusively presumed to be true in favour of the party wishing to enforce it. It will not be possible for a charity to avoid its obligations as the contract as well as the final deed will remain enforceable even if the statement has been omitted. The ability to enforce these provisions will remain subject to the existing proviso that the third party has entered into the contract in good faith.
In many ways the 2022 Act will make transactions involving charity land much easier whilst providing enhanced protection for purchasers. Specialist legal advice will be more important than ever for charity trustees; the 2022 Act makes amendments to the Charities Act 2011 (and impacts on other legislation) in addition, secondary legislation and at least a dozen pieces of guidance are also expected. Bevan Brittan acts for a wide range of charities so please get in touch with a member of our specialist team if you need help with navigating the changes.
If you would like to discuss this topic in more detail, please contact David Hobbs, Partner.