The Charities Act 2022, explained: key changes to the rules relating to charity land

In this blog we look at two of the changes to the rules on disposals of charity land which could save charities time and money when disposing of property – the extension of the list of professionals who can advise on disposals of charity land and simplification of the requirements for the advice that must be obtained.

If you are interested in the changes to the law relating to charity legacies which include property please take a look at our charity legacies blog found here.

What do you need to know?

Part 7 of the Charities Act 2011 imposes restrictions on disposals of charity land which are intended to put safeguards in place to ensure that charities dispose of their property on the best terms that can reasonably be obtained for the charity. The rules were working well for those charities looking for a clear framework of guidance to inform and provide protection in relation to their decision to dispose of charity property, but have been criticised as being too prescriptive by other charities engaging in more complex property deals or indeed charities dealing with small transactions for which highly detailed advice may be disproportionate to the cost and complexity of the disposal.    

The changes to Part 7 of the Charities Act 2011 which are set out in the Charities Act 2022 are intended to provide more flexibility for charities, recognising that the rules apply to a vast range of different property transactions.

Who can provide advice?

Part 7 of the Charities Act 2011 previously required charity trustees to obtain advice on the terms of any disposal of charity land (other than a lease for a term of less than seven years or a mortgage) from a qualified surveyor who is a member of the Royal Institution of Chartered Surveyors. Under the new provisions brought in by the Charities Act 2022 charity trustees are able to obtain this advice from a wider category of “designated advisors” which will include fellows of both The National Association of Estate Agents (PropertyMark), of which 25% of estate agents are a member, and The Central Association of Agricultural Valuers as well as qualified charity trustees, officers and employees.

This wider pool of advisers from which a charity can obtain advice allows charity trustees to exercise discretion in choosing the most suitable and cost-effective advisor in the context of the transaction. However, along with this greater flexibility comes an added responsibility for charity trustees, who have to bear the following things in mind when assessing who will be the most appropriate advisor in the circumstances:

• is the advisor adequately qualified to provide the advice?
• is the advisor a member of the appropriate professional regulator?
• are there any conflicts involved?
• do the cost savings of using a charity trustee/employee to provide the advice outweigh the potential risks to the charity?
• does the advisor have professional indemnity insurance?

What must the advice cover?

Part 7 of the Charities Act 2011 previously provided that the advice had to contain such information and deal with such matters as prescribed by The Charities (Qualified Surveyors’ Report) Regulations 1992. The new provisions simplify this requirement by replacing those  regulations with The Charities (Dispositions of Land: Designated Advisers and Reports) Regulations 2023, which require a designated advisor to provide advice concerning:

• what sum to expect for the land/whether the offer represents market value for the land;
• whether (and if so how) the value of the land could be enhanced;
• marketing of the land;
• anything else which could be done to ensure that the terms of the transaction are the best that can reasonably be obtained for the charity;
• any other matters that the adviser believes should be raised with the charity’s trustees.

These simplified requirements should make it easier for designated advisors to tailor their advice to the transaction in question, but there is a risk that without such detailed guidance, less experienced or less qualified advisors could provide less rigorous advice.

What action should you take now and what has been delayed?

The Charities Act 2022 is being implemented in stages. The provisions mentioned above in this blog are now in force, so charities dealing with disposals of property should familiarise themselves with the changes to the advice requirements and consider whether they could be used to the charity’s advantage. Charities disposing of property on a regular basis should consider whether alternative advisors may be better placed than RICS qualified surveyors to provide the charity with advice.

Implementation of certain of the other property provisions has now been delayed until sometime in March 2024. This includes the changes to the statements and certificates to be included in property contracts and deeds. This delay has been explained as to allow time to liaise with the Land Registry on the form of the new statements. The delayed provisions also include the changes around the exceptions to the provisions on disposing of and mortgaging charity land for liquidators and certain others.

What action do you need to factor into future plans and transitional provisions?

Charities now need to factor in an enhanced decision-making process in order to ensure that adequate consideration is given to the appointment of a designated advisor on a case by case basis in the context of each disposal of charity property.  The new Regulations do set out transitional provisions that will apply if charities have already obtained an old form qualified surveyors report but have not exchanged contracts yet. Provided that a charity instructed its adviser before 14 June 2023 to prepare a report for the purposes of complying with section 119(1) of the 2011 Act, the old 1992 Regulations will apply to the report even if the disposal takes place after the new Regulations came into force, providing some certainty for those currently involved in transactions and concerned about having to obtain two reports.

If you have any questions on this or any of the property aspects of the Act, or how it might affect your charity’s plans, please get in touch with Rebecca Rider or Jamie Huard. We’ll be happy to help.

The Charities Act 2022, which came out of Lord Hodgson’s review of the Charities Act 2006 back in 2012 and the Law Commission’s report on Technical Issues in Charity Law in 2017, is intended to make life easier for charities by reducing regulation and clarifying grey areas in the law. In this new blog series, we untangle the Act to pull out the key points your charity will need to know, action now and plan for. Catch up with all the blogs in the series here.

If you have any questions on this or any of the property aspects of the Act, or how it might affect your charity’s plans, please get in touch with Rebecca Rider or Jamie Huard. We’ll be happy to help.