Queries

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.

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.

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.

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.

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.

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.

• 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.

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.

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.

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

Please see the information note.

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.

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.

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.

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.