Educational Trustees Meeting Nov 2017

WR I GLEY S ---- S OL I C I TOR S ----

6 October 2017

purported transfer is not effective and legal title remains with the transferors. I note both those companies still exist.

There are two main options for resolving the current position and ensuring the property is vested in the current trustees or nominees.

A. Ask the two companies named as transferor on the 20 Sep 2012 TR1 to agree a replacement transfer to the current trustees/nominee trustees.

Pros

This could potentially be a quick route to sort the issue out.

Cons

While it might be a quick route, on the otherhand it might become protracted as the circumstances are somewhat complicated. They might well require their costs to be covered. There is a degree of risk that the companies might simply refuse, or might suggest they are somehow entitled to a further fee, or at the very worst they might argue that the property still belongs to them. In my opinion such arguments would have little merit, but the GFTUET is at risk until this is sorted out. Clearly contacting them to sort out the problem puts them on notice there is a problem and how they react is outside our control. I am sometimes asked if it would be possible to use a deed of variation or rectification rather than a new transfer, but as the original contract is void there is no original contract to vary or rectify.

B. Ask the Charity Commission to provide an order vesting the property in the current trustees or nominee.

Pros

The Commission are likely to be keen to safeguard this asset that was clearly intended to be transferred to the charity. Technically the Charity Commission only has jurisdiction over charities and assets held for charities. I think it is arguable that it is held for "the charity" albeit by the transferor. Given the value potentially at risk the Commission may be more inclined to take a liberal view of its jurisdiction.

This approach avoids involving the transferor and the risks of that approach.

It is an opportunity to vest the title in the current trustees with certainty (as a Charity Commission order has concurrent jurisdiction with an order of the High Court). It could also be a route to vest the legal title in the Official Custodian for

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