Solutions to ownership problems
The basic rule for changing the ownership of property is that the current proprietors sign a Land Registry form TR1. However there are alternatives if the owners are not available or willing to sign this document (which is common in the case of properties owned by charities, where some or all trustees may be deceased or unavailable).
- It is possible to vest land in new trustees without using a TR1 by a vesting deed under section 40 Trustee Act 1925. Such a deed need not necessarily list the properties within the ownership of the charity although it often will. The provision is not effective with respect to leases that require landlord’s consent to assignment unless that consent has first been obtained.
- The usual rules apply in that a death certificate or grant of probate will be sufficient evidence for the Land Registry to change the register. The legal title will vest automatically in remaining trustees.
- Under section 18 of the Trustee Act 1925 if none of the registered trustees survive, the personal representatives of the last surviving or continuing trustee, is capable of exercising or performing any power or trust which was given to, or capable of being exercised by, the sole or last surviving or continuing trustee, or other the trustees or trustee for the time being of the trust.
- Under section 334 of the Charities Act 2011 if trustees holding property for the purposes of the charity (which can mean either charity trustees or holding trustees) may be appointed or discharged by resolution of a meeting of the charity trustees, members or other persons, a memorandum declaring a trustee to have been so appointed or discharged is sufficient evidence of that fact if the memorandum is signed either at the meeting by the person presiding or in some other manner directed by the meeting and is attested by two persons present at the meeting and will have similar effect to a TR1. This provision however does not override the need for consent to vesting from third parties, such as landlords.
- The Charity Commission may by order exercise the same jurisdiction and powers as are exercisable by the High Court for the purpose of vesting or transferring property, or requiring or entitling any person to call for or make any transfer of property or any payment under section 69(1)(c) of the Charities Act 2011. This parallels the express powers given to the High Court under section 44 of the Trustee Act 1925. The jurisdiction is limited. It cannot be used to determine the title at law or in equity to any property as between a charity or trustee for a charity and a person holding or claiming the property or an interest in it adversely to the charity, or to try or determine any question as to the existence or extent of any charge or trust.
- Charity trustees may be incorporated by application to the Charity Commission under section 251 of the Charities Act 2011. Under section 252, on the making of the order for incorporation the property vested in the trustees vests in the “incorporated body”.
- Again, you have to show before or after vesting is proper appointment of charity trustees rather than Land Registry title.
- If for some reason there is a title issue it may be possible to establish title through adverse possession, the usual 12-year or 10-year rules applying.