Appointment of new trustees
The Charities Regulator may appoint trustees of a charitable trust (or to a particular property held on charitable trusts) either to fill a vacancy or as additional trustees under section 43 of the Charities Act 1961 (as amended by section 14 of the Charities Act 1973 and section 82 of the Charities Act 2009). This usually occurs where a charity no longer has any living trustees appointed.
Before seeking to make an application to the Charities Regulator, charities should consider with their legal advisors if the property title deed, the governing document of the charity or the default statutory provisions of the Trustee Act 1893 permit someone within the charity, the last surviving trustee or their legal personal representative to make the appointment of trustees.
The Charities Regulator’s jurisdiction will generally not be invoked if there is someone else with authority to make the appointment. Given that the statutory process for the appointment of new trustees involves several stages and the current timeframe for processing these applications is in excess of six months, it is more expedient if someone with authority can be identified to make the appointment.
When will the Charities Regulator make an appointment of new trustees?
Appointments may be made:
- in substitution for or in addition to any existing trustee or trustees;
- where no power of appointment is contained in the charity’s governing document or the deed relating to the property;
- where there is no surviving trustee; and the last surviving trustee’s legal personal representatives are deceased or not willing to make the appointment;
- where the appointment appears necessary to the the Board of the Charities Regulator.
The application may be made by the trustee or trustees of the charity or, if they cannot be found, by any person having an interest in the charity property.
An application to appoint new trustees is made by way of a Statutory Declaration. You will find an online form by logging on to MyAccount and selecting the Charity Services section. The form has text boxes to be populated by applicants. This generates the standard form statutory declaration.
A section 55 declaration / statement of willingness to act must be signed by all persons who are proposed to act as trustees of charity property. If a bare trust property holding company or other body corporate is proposed to be appointed as trustee, the section 55 declaration should be amended accordingly and must be signed on behalf of the company, in accordance with the relevant provisions of its governing document.
What documents do I need to include with my application?
- the completed form on MyAccount including:
- description of the area and geographical situation of the property in the Schedule to the declaration. The description should be in accordance with the parcels clause/schedule of the relevant deed if unregistered; and include reference to the folio if registered. Where no deed exists such description and address should be as full as possible;
- description of the charitable trusts on which the property is held;
- history of the property and a statement of its title;
- Note: unregistered land - in the case of an application for the appointment of new trustees the land will be vested for such estate and interest as the previous trustees held without identifying the nature of the estate or interest. Particulars of draft approved wording are enclosed below. Please note that all vesting orders in relation to unregistered land are treated on this basis;
- statement confirming the death of the former trustees referencing death certificates uploaded or such other evidence of death as is available;
- the names, addresses and descriptions of the proposed new trustees (bringing the number up to at least two trustees, unless a trust company; or the name and address of the Registered Office of that Company;
- statement confirming that there is no restriction on alienation which would prevent the appointment of new trustees;
- the trusts upon which it is desired that the property be vested by the Authority in the said trustees;
- death certificates for all deceased trustees on title;
- property title documentation (for example, up to date copy folio and file plan or copy title deeds under which the property is held);
- copy of the deed vesting the property in the charity;
- map of the property clearly identifying it;
- confirmation of where the statutory public notices will be displayed;
- the addresses at which the proposed trustees ordinarily reside / its registered office if a body corporate;
- A copy of the latest governing document for all entities the subject of your application;
- If your application involves a property holding company, its governing document in addition to the governing document of the registered charity.
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.
Application for the disposition of charity property
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.
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.Further information is available in our ezine article Is your charity planning to sell its charity property?
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.
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.
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.
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.
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.
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.
The Charities Regulator has the power to settle schemes applying charity property cy-près (as near as possible to the intentions of the original donor) under section 29 of the Charities Act 1961 (as amended by section 8 of the Charities Act 1973, Part 2 of the Social Welfare (Miscellaneous Provisions) Act 2002 and section 82 of the Charities Act 2009).
The basis for a cy-près application is set out in the circumstances specified in section 47(1) of the Charities Act 1961 and the statutory declaration should refer to these circumstances as they apply to the charity/charitable gift in question. You must outline why it is necessary or desirable for the scheme to be made. Please provide as much detail as possible, including the relevant history, up to date valuations (where appropriate) and full details of the proposed use of the funds/property. The usage must be similar to the original intention and the rationale should be explained. Where documents are referred to in the statutory declaration, please append clearly labelled exhibits.
Please note there are several stages in a cy-près application. In general, they are
- initial application and review – approval in principle;
- consideration of draft cy-près scheme prepared by the applicant;
- publication of the public notice for a period of one month;
- consideration of objections / suggestions (if any);
- sealing of the cy-près scheme.
Please note it is the applicant’s responsibility to draft the cy-près scheme and the Charities Regulator may make changes to it as part of the application review process. As an application commences a legal process, applicants are advised to take independent specialist legal advice before making a submission.
Opinion or advice
Under section 21 of the Charities Act 1961 (as amended by section 82 of the Charities Act 2009), an application may be made to the Charities Regulator for a formal statement of its opinion or advice to trustees who have a difficulty in relation to the administration of a charitable trust, or executors experiencing difficulty in administrating a charitable devise or bequest under their control. Applicants should note that provision of a statement of opinion or advice involves the exercise of a discretionary statutory function and that the Charities Regulator cannot provide applicants with legal advice in respect of charitable trusts, bequests or devises. Applicants are encouraged to seek their own specialist legal advice before making an application.
In general, all applications must include a signed and attested Statutory Declaration which includes the following:
- Full particulars of the relevant provisions of the trust deed or will: Relevant sections of trust documents should be identified by section number or otherwise identified in an exhibit to the declaration;
- Details of the difficulty which arises and reasons for the request to provide a statement of opinion or advice – please include as much relevant background information as possible and include supporting documentation as exhibits;
- Particulars of the steps taken to ascertain the disponer / testator’s intentions, for example, any relationship which the disponer / testator may have had with the charity in question, or other extrinsic evidence if there is an ambiguity on the face of the trust / will;
- A proposal from the trustee/executor as to how the matter may be resolved, including confirmation as to whether the charity trustees of the charity in question have approved the proposal in principle, if appropriate in the circumstances; and/or details of their observations and the observations of any relevant third parties in respect of the proposal;
- The name of each charity and Registered Charity Number (RCN) (where applicable) referenced in the application;
- Name and address of the deponent;
- Details of any alternative courses of action which have been considered;
- Details of any third party claims or potential claims in respect of the charitable trust, bequest or devise of which the applicant is on notice.
Approval of compromise
The Charities Regulator may sanction or make an order in relation to the proposed compromise of a claim against a charity or against a person in relation to a charity under section 22 of the Charities Act 1961 (as amended by section 82 of the Charities Act 2009). It must be demonstrated to the Charities Regulator that the proposed compromise is fit and proper and for the benefit of the charity for it to be sanctioned.
In order to invoke the Charities Regulator’s jurisdiction in relation to compromises of claims, the charity trustees, or another person with their consent, must submit an application to the Charities Regulator in which they state that the proposal is advantageous to the charity, or that the claim should, in the special circumstances of the case, be compromised.
There may be a number of steps involved in an application for the compromise of a claim and while it may be of assistance to have taken initial steps in relation to the proposal, charity trustees should not bind themselves to any agreement without the consent of the Charities Regulator.
Charity trustees and other persons dealing with claims against or in relation to charities should be aware that the Charities Regulator’s jurisdiction is discretionary and that it may make any order in relation to the proposal, with or without modification of the proposal.
Charity trustees must have regard to their legal duties when considering compromising a claim. In particular, charity trustees should ask:
- Do I have the power to enter this agreement and is the proposal in compliance with the provisions of the charity’s governing document?
- Is the proposal a responsible use of the charity’s resources?
- What are the alternatives? Would defence of the claim represent a responsible use of the charity’s resources? What potential issues arise?
- How would a donor to the charity/the public in general view the proposal in terms of the proposed use of charity resources?
- Am I acting with the reasonable skill and care that is expected of a trustee dealing with charitable property in the circumstances of the matter?
- What steps, if any, could the charity take to prevent the situation arising in the future?
- Are the costs of the proposal proportionate and reasonable in all the circumstances?
Where an application is made by the legal personal representative of an estate in which a claim arises in relation to a charity, the legal personal representative should ensure that they can demonstrate they have authority to deal with the estate assets. Usually this means extracting a grant of representation (grant of probate or other appropriate grant of administration), to prove title to the assets in the estate.
Details of all claim documentation and correspondence should be exhibited to a statutory declaration of the legal personal representative / trustee.
It may be of assistance to the Charities Regulator’s consideration of an application for an applicant to demonstrate any engagement that has taken place in respect of the claim and proposal. The output from this engagement may assist in determining if the proposed compromise is fit and proper and for the benefit of the charity. Charity trustees are advised to take independent legal advice before responding to any claim, or any proposal put to them in the case where they are due to benefit from an estate. The applicant must demonstrate that each charity involved in an application has been afforded the opportunity to obtain independent legal advice.
Usually, these applications are submitted after a grant of representation has issued in the estate. They must be submitted before any binding agreement is entered in respect of a claim.
Charitable bequest forms
The Charities Regulator examines information relating to charitable bequests received from the Probate Office, which has a statutory mandate to provide the Charities Regulator with an annual report of all charitable bequests to charities in Ireland.
Executors / legal personal representatives (“LPRs”) must submit receipts for payment of charitable bequests to the Charities Regulator within six (6) months of the issuing of a grant of probate under section 52 of the Charities Act 1961.
Bequests to overseas charities with no activities in Ireland are not within the remit of the legislation. LPRs are not required to include these on the charitable bequest form.
One will, one form
Please note that from 1 February 2024, based on feedback from the legal profession, the charitable bequest form is no longer completed online.
The Courts Service has published the form which should be completed and submitted to the Probate Office / District Probate Registry with your application for a grant where the will contains a charitable bequest. You will find a link to the form in the section below.
LPRs or solicitors acting on their behalf must complete this single form known as the ‘Charitable Bequest Form’ which includes the wording of all charitable bequests in a will. The completed form should contain details of all charitable bequests including a bequest of the residue if a charity is a residuary beneficiary.
Submitting several forms in respect of one estate will result in the forms / application being returned to you and this will delay the processing of your application.
Alteration of schemes
The Charities Regulator may alter any scheme framed and approved under:
- the Educational Endowments (Ireland) Act 1885, pursuant to section 30 of the Charities Act 1961; or
- section 2 or section 4 of the Charities Act 1973 (incorporation schemes);
- a court order (other than a Court ordered cy-près scheme), where the Charities Regulator is given this power in the scheme.
Applicants should review the legislation and the scheme with their legal advisors, taking note of the statutory notice periods and conditions in relation to these schemes. Applicants must describe in detail the rationale for the proposed amendments, having regard to the limitations of the statutory provisions. Applicants should include all relevant background details and upload a clean copy and redline version of the scheme highlighting the proposed amendments. Applicants should upload supporting documentation including legal advice where appropriate.
Where an applicant charity wishes to amend or revoke a cy-près scheme (whether framed by the Charities Regulator or its predecessor the CCDB or by Court order), it should submit an application for a new cy-près scheme through MyAccount, as set out above at section 3.
Vesting and amending charitable leasehold property
The Charities Regulator may make Vesting Orders freeing charity property from the operation of onerous covenants in leases made pursuant to the Leases for Schools (Ireland) Act 1881 and other leases for charitable purposes, where the person entitled to the lessor’s interest is unknown or cannot be found, pursuant to section 6 of the Charities Act 1973 (as amended by section 82 of the Charities Act 2009).
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 should I do if a will contains a gift to an Irish charity?
If a will contains a gift to a charity, it should be given to that charity. You must tell the Probate Office, the charity and the Charities Regulator about the gift. You should search the public Register of Charities to identify what registered charity the gift should be paid to and get legal advice to help you do this.
Q. What should I do if a will creates a new charitable trust?
If a will creates a new charitable trust, you should get legal advice.Learn how to register a new charity on our website.
If a will establishes a new charitable trust, the trustees also have duties to maintain and file details of the trust on the Central Register of Beneficial Ownership of Trusts (CRBOT) via Revenue’s website. Further information is available under “Charitable Trusts” on the FAQ section of our website. The Charities Regulator is not responsible for CRBOT.
Q. What should I do if a will leaves a charitable bequest for the saying of masses?
You should search the Register of Charities on our website and ask the named beneficiary to identify what registered charity the gift should be paid to. You should include details of this on the charitable bequest form.