Application forms and user guides

In general, applications for authorisation of charity property dispositions are required where the trustees do not otherwise have the power to make the disposition according to the trusts of the registered charity on which the property is held; or there is a restriction on title which means authorisation is required. In all cases where the Charities Regulator or CCDB has made an appointment of trustees, a restriction/inhibition is entered on the property deed or folio which requires the authorisation of the Charities Regulator to any future disposition of the property.

It is advisable to engage with legal advisors and auctioneers at an early stage in the process before selling charity property. In general, charity trustees have a responsibility to act in the best interests of the charity and agree terms of sale which are advantageous to the charity. This means that the trustees obtain full open market value and are in a position to document how this has been ascertained.

Is the Regulator’s consent required?

Charities should consider with their legal advisors before making an application if consent of the Charities Regulator is actually required, or if the charity already has the power to make the disposition. For example, if the registered charity’s governing document (that was in force when the property was acquired) states that the charity has the power to make the disposition, it would not generally be required to seek the consent of the Charities Regulator to the proposed disposition provided the disposition is considered by the trustees to be of benefit and advantageous to the charity. However, every property title and situation is unique and should be considered in all the circumstances and in conjunction with the relevant legislation in advance of making an application.

Who must make the application?

Section 34 of the Charities Act 1961 (as amended) (where applicable) requires applications for dispositions to be made by the charity trustees of a registered charity.  Where a bare trust property holding company holds legal title to a charity’s property, the application for consent to a disposition (if required) must be made by both the trustees of the registered charity (as beneficial owner) and the officers of the property holding company (as legal owner).

In practice, at least two thirds of the registered charity trustees must sign the application form on behalf of the registered charity (see further section 55 of the Charities Act 1961). If an individual is both a charity trustee of the registered charity and an officer of a property holding company, they may need to sign the form twice (and make clear in what capacity they are signing). It is not sufficient for only the property holding company to make the application. Application forms which are not correctly signed on behalf of the registered charity will be returned and this will increase processing times.

Applications may take a number of months to process and should be submitted well in advance of the proposed completion date specified in the Special Conditions to the Contract for Sale, which in practice is often tied to the issuing of a determination from the Charities Regulator.

Documents required

All sale authorisation applications must include the following:

• fully signed and dated contract;
• detailed valuation report from an auctioneer instructed by the charity dated within the last 6 months, confirming the date of inspection of the property, certifying the full Open Market Value (OMV) of the property. The OMV should be certified having regard to the property’s size, location and condition, comparable properties for sale and previously sold in the area or of a similar nature; and the equivalent price per acre/hectare of any land in sale;
• confirmation of the recommended asking price and a copy of the brochure for sale;
• marketing history, for example details of what ads were placed and where, the number of hits, property viewings and bidding history – evidence that the property was put on the open market and the process undertaken to realise the most advantageous terms of sale;
• auctioneer’s opinion on how the sale agreed price represents the full OMV;
• copy of the Deed vesting the property in the registered charity;
• map of the property in sale together with details of the land area in question (number of acres / hectares and size in square ft/m of all buildings on the property);
• details of connections, if any, between the parties (that is personal or business connections between the proposed purchaser and the charity trustees / employees or former trustees / employees);
• copy of any occupational lease or licence in place in respect of the property;
• governing document for the registered charity setting out the charitable trusts affecting the property;
• governing document of the property holding company (if any). 

Please note:  Original wet-ink signed documents are required in respect of application forms and statutory declarations.  Please do not send original title documents to the Charities Regulator – in general, copies are sufficient.

• i. Consent to a Sale of Charity Property for Full Value

  Under section 34(1) of the Charities Act 1961 (as amended by section 11 of the Charities Act 1973 and section 82 of the Charities Act 2009) the Charities Regulator may authorise the sale or disposition of lands held upon charitable trusts where the trustees do not otherwise have the power.

  Consent to a Sale of Charity Property - User Guide (PDF document)

• ii. Consent to a Transfer / Sale of Charity Property between Charities for less than Full Value

  Under section 34(2) of the Charities Act 1961 (as amended by section 11 of the Charities Act 1973 and section 82 of the Charities Act 2009), the Charities Regulator may authorise the transfer or sale of lands held upon charitable trusts, where the trustees do not otherwise have such power.

  NOTE: The Charities Regulator does not have power to sanction sales of charity property for less than full value unless the sale is to a charity with a different charitable purpose.

  Consent to a Transfer / Sale of Charity Property - User Guide (PDF document)

• iii. Consent to a Lease of Charity Property

  Under section 37 of the Charities Act 1961 (as amended by section 13 of the Charities Act 1973 and section 82 of the Charities Act 2009), the Charities Regulator may authorise a lease of lands held upon charitable trusts where the trustees do not otherwise have such power.

  NOTE: The Charities Regulator does not have power to sanction leases of charity property for less than a full market rent unless the lease is to a Charity with a different charitable purpose.

  Consent to a Lease of Charity Property - User Guide (PDF document)

• iv. Consent to a Surrender of a Lease of Charity Property

  Under section 34(1) of the Charities Act 1961 (as amended by section 11 of the Charities Act 1973 and section 82 of the Charities Act 2009), the Charities Regulator may authorise a surrender of a lease held upon charitable trusts where the trustees do not otherwise have such power.

  Consent to a Surrender of a Lease of Charity Property - User Guide (PDF document)

• v. Consent to a Mortgage of Charity Property

  Under section 34(4) of the Charities Act 1961 (as amended by section 11 of the Charities Act 1973 and section 82 of the Charities Act 2009), the Charities Regulator may authorise the mortgage of a charity property held upon charitable trusts where the trustees do not otherwise have such power.

  Consent to a Mortgage of Charity Property - User Guide (PDF document)

• vi. Consent to an Exchange of Charity Property

  Under Section 34(1) of the Charities Act 1961 as amended by section 11 of the Charities Act 1973 and section 8 of the Charities Act 2009, the Charities Regulator may authorise the exchange of lands held upon charitable trusts where the trustees do not otherwise have such power.

  Consent to an Exchange of Charity Property - User Guide (PDF document)

   Below are questions that we often receive. We recommend that the information here is read in conjunction with the
   main sections on the relevant topics.

• Q. What is the difference between disposals made under section 34(1)(a) and section 34(2) of the Charities Act 1961?

  There are broadly two situations catered for in section 34 in relation to disposals of charity property:

  • s34(1) provides for transfer at full open market value to a purchaser of charity property; and
  • s34(2) provides for transfer at less than full open market value for a different charitable purpose, to another registered charity. 

  Disposals made under s34(1) must show that they are advantageous to the charity by providing comprehensive documentation regarding the valuation of the property and marketing activity.  It must be shown that full open market value is being obtained.

  Disposals made under s34(2) are for nominal or less than full market value. They are only permissible where a transfer or other disposition is being made by a charity for a different charitable purpose to another registered charity, which advances the public benefit.

  Where a charity does not have the power to make a disposition in respect of s34(1) and in all cases in respect of s34(2), it must obtain the authorisation of the Charities Regulator.

• Q. If a charity amends its governing document to include a Power of Sale (POS), does this new power apply to properties acquired by the charity prior to the amendment?

  No, if a charity did not have a POS at the time it acquired a property that is proposes to sell, the new POS is not effective. The authorisation of the Charities Regulator is required in respect of all properties acquired prior to the addition of the Power of Sale.

• Q. If a charity has a Power of Sale (POS) in its governing document, but holds a property regarding which the Charities Regulator (or previously the Commissioners of Charitable Donations and Bequests for Ireland (CCDB)) made an order appointing new trustees, which included a restriction on title, does it need the Charities Regulator’s authorisation?

  Usually, whenever the Charities Regulator (or previously the CCDB) makes an appointment of new trustees under section 43 of the Charities Act 1961, a restriction is included in the order of appointment and entered as an inhibition on the property title, as follows:  

  “AND IT IS HEREBY DECLARED that the Appointment and Vesting made by this Deed is subject to the express condition that no disposition of charity property (as defined by section 34(6) of the Charities Act 1961) shall be made by the Trustee without the prior consent in writing of the Charities Regulatory Authority.”

  The Power of Sale in the governing document does not override any express restriction on title so an application for authorisation must be made by the charity before if it is proposing to sell or otherwise dispose of an interest in the property.

• Q. Can Charity Trustees sell a property off-market, without the need to advertise it on the open market?

  The Charities Regulator’s process in respect of sale authorisation applications is necessarily robust; and particularly so in respect of proposed “off-market” transactions, given the potential risk of a loss of charity assets.

  In general, in the interests of transparency and demonstrating that full value is being obtained by a charity for its assets, it is preferable that charity property is sold on the open market following a marketing campaign and competitive bidding/negotiation process. Charity trustees should ensure they engage professional advice before considering otherwise. There are more onerous documentary requirements and increased scrutiny of applications for off-market charity property transactions. This may lead to a longer process which outweighs the perceived benefits of selling “off-market”. The Charities Regulator may require a charity to offer a property on the open market if it is not satisfied with the conditions or circumstances of a proposed sale.

• Q. What conditions can the Charities Regulator impose in respect of a proposed sale?

  The Regulator can direct that changes are made to the conditions of sale, for example the purchase price, marketing of the property or application of sale proceeds. Legal advisors to charities which do not have an effective Power of Sale (POS) are advised to include an appropriate condition in the Contract for Sale to enable the charity to vary or rescind the contract in the event that authorisation is made subject to conditions or is not granted.

• Q. Does an application to the Charities Regulator mean the sale will be authorised?

  No, the Charities Regulator considers each application on its own merits and in accordance with the provisions of section 34 of the Charities Act 1961 and other applicable legislation.

• Q. What do I need to do if the trustees on title are deceased?

  • Appoint new trustees before marketing the property for sale in accordance with the charity’s governing document;
  • Prepare the relevant documentation and build in a timeframe for a section 43 application for the appointment of new trustees by the Charities Regulator, if necessary in the circumstances;
  • Do not market or agree a sale until the title is up to date and the Charities Regulator’s Register of Charities has been updated with the new trustees.

• Q. Who makes a decision in relation to sale applications?

  The Board of the Charities Regulator makes decisions following review and consideration of applications. Meetings of the Board usually take place nine times per year. Please read the Application process section.

• Q. Who must sign the forms?

  In practice, at least two thirds of the registered charity’s trustees must sign the application form on behalf of the registered charity (see further section 55 of the Charities Act 1961). If an individual is both a charity trustee of the registered charity and an officer of a property holding company, they may need to sign the form twice (and make clear in what capacity they are signing). It is not sufficient for only the property holding company to make the application. Application forms which are not correctly signed on behalf of the registered charity will be returned and this will increase processing times.

• Q. How many copies of the forms need to be submitted?

  Two copies of the signed sale authorisation forms, each containing wet ink original signatures need to be submitted.

• Q. I have a concern in relation to a charity property that is proposed to be sold or has been sold; or how a charity property is being used. What can I do?

  Please see the information note.

• Q. Is it appropriate for legal personal representatives or their legal advisors to enter into correspondence with charity beneficiaries of a will in relation to which a difficulty has arisen prior to making an application to the Charities Regulator?

  This depends on the circumstances and how the difficulty in administering the will has arisen. Having regard to a legal personal representative’s duties to administer an estate, it may be of assistance to have sought the observations or agreement in principle of any charity and other beneficiaries of the estate impacted by the proposed course of action. Copies of all relevant correspondence should be exhibited to the Statutory Declaration. Regard should be had to the cost of such engagement and the overall value of the estate /  charitable bequest.

• Q. How do I reference other charities in my application?

  If your application includes a question regarding the name, description or status of charitable organisation / charitable trust, applicants should search the Register of Charities and clearly identify any registered charities that may relate to the application by reference to its Registered Charity Number (RCN).  In addition to searching for a charity on the Register of Charities by reference to its name, you may search for a registered charity by reference to other identifiers including: its Companies Registration Office (CRO) number if a company; or its Roll Number / Uimhir Rolla if a school. 

  Another identifier which may assist you in tracing the history of a charity is its CHY number if the organisation holds or previously held a charitable tax exemption.  Please note that the CHY number is not displayed on the Register of Charities.  You should contact the Revenue Commissioners if you have a question relating to the status or history of an organisation’s CHY status.

• Q. What is the benefit to charity trustees or executors who act in accordance with an opinion or advice issued under seal of the Charities Regulator pursuant to section 21 of the 1961 Act?

  Subject to the conditions and caveats set out in section 21 of the 1961 Act, a trustee or other person who acts on or in accordance with the opinion or advice of the Charities Regulator is indemnified as regards their own responsibility in relation to the trust in question.

• Q. What to do if a will contains a clause establishing a new charitable trust / charitable organisation?

  Legal Personal Representatives/executors should seek professional independent legal advice if it appears that a clause in the will of a deceased establishes a new charitable trust/charitable organisation. It may be of assistance to obtain the opinion or advice under seal of the Charities Regulator if it is unclear if the intention of the will is to establish a new charity/charitable trust, to be administered by named trustees, or whether it is simply a charitable bequest. Our website contains useful information in relation to the obligation to make an application to register a new charity with the Charities Regulator pursuant to the Charities Act 2009, available here: Apply for Charitable Status.

  Opinion or Advice - User Guide (PDF document)Submit an Application here