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Thread: Local Holding Trustees for Hut

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    Local Holding Trustees for Hut

    I'm currently carrying out a review of the legal position regarding our hut, which we built 5 years ago. Can anyone help with the following questions? If it makes a difference due to different laws, we are in England. (I'll take as read the normal caveats: your replies are not legal advice and ideally I should get legal advice.)

    1. I'm trying to work out who currently has legal title to our 100 year lease over the land. The lease was not transferred to SATC or any other custodian. It was signed by our then Chair and GSL, "acting as the trustees". This makes me think that those two people are the Holding Trustees (for the purpose of POR 13.2.c). Other than the short wording in the lease, as quoted, there is no document under which they are declared the HTs or their duties/powers as HTs are specified. But in the absence of anything to the contrary, I think they must be the HTs. Does that sound right?

    2. Are charity trustees (such as Chair and GSL) allowed to be HTs of the land and buildings beneficially owned by the charity? Surely POR would say so, if this was not permitted? As it doesn't, I infer that this is allowed, unless anyone knows different?

    3. The GSL has since stepped down and currently has only limited connections with the group, so clearly they should no longer be a HT. I'm familiar with the benefits of transferring title to the SATC, but our GEC is resistant to change and currently seems disinclined to use SATC. I think they see it as being easier to transfer the HT role to new individuals every time the existing HTs cease to be willing/able/alive/appropriate. I know most groups won't have come across this, as they use SATC, but does anyone have any practical experience of how easy it is to transfer to a new HT? Specifically:

    3(a) Am I right in understanding that the HT role cannot transfer automatically, unlike the charity trustee role, which is automatically transferred if you become/cease to be a GEC member (POR 13.1.a)?

    3(b) And am I right that we can't just effect the transfer by way of a minuted decision of the GEC/charity trustees at an AGM? Rather, we need to draw up and execute a new Declaration of Trust document, signed by the old HTs as settlors, naming the new HTs? Does this need to be drawn up by lawyers or is there a template we can use?

    3(c) Do we need to register such a change with the Land Registry? If yes, is there a fee for this and would we need a lawyer to do it for us?

    3(d) Is there any other procedure or red tape or expense?

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    Quote Originally Posted by IvanOpinion View Post
    I'm currently carrying out a review of the legal position regarding our hut, which we built 5 years ago. Can anyone help with the following questions? If it makes a difference due to different laws, we are in England. (I'll take as read the normal caveats: your replies are not legal advice and ideally I should get legal advice.)

    1. I'm trying to work out who currently has legal title to our 100 year lease over the land. The lease was not transferred to SATC or any other custodian. It was signed by our then Chair and GSL, "acting as the trustees". This makes me think that those two people are the Holding Trustees (for the purpose of POR 13.2.c). Other than the short wording in the lease, as quoted, there is no document under which they are declared the HTs or their duties/powers as HTs are specified. But in the absence of anything to the contrary, I think they must be the HTs. Does that sound right?

    2. Are charity trustees (such as Chair and GSL) allowed to be HTs of the land and buildings beneficially owned by the charity? Surely POR would say so, if this was not permitted? As it doesn't, I infer that this is allowed, unless anyone knows different?

    3. The GSL has since stepped down and currently has only limited connections with the group, so clearly they should no longer be a HT. I'm familiar with the benefits of transferring title to the SATC, but our GEC is resistant to change and currently seems disinclined to use SATC. I think they see it as being easier to transfer the HT role to new individuals every time the existing HTs cease to be willing/able/alive/appropriate. I know most groups won't have come across this, as they use SATC, but does anyone have any practical experience of how easy it is to transfer to a new HT? Specifically:

    3(a) Am I right in understanding that the HT role cannot transfer automatically, unlike the charity trustee role, which is automatically transferred if you become/cease to be a GEC member (POR 13.1.a)?

    3(b) And am I right that we can't just effect the transfer by way of a minuted decision of the GEC/charity trustees at an AGM? Rather, we need to draw up and execute a new Declaration of Trust document, signed by the old HTs as settlors, naming the new HTs? Does this need to be drawn up by lawyers or is there a template we can use?

    3(c) Do we need to register such a change with the Land Registry? If yes, is there a fee for this and would we need a lawyer to do it for us?

    3(d) Is there any other procedure or red tape or expense?


    I cannot answer all your questions but we have a Group in a similar situation and a joint with Guides so that is an added complication.

    A number of years ago when I was in a District role I looked into this and found that if we transferred the HQ (freehold in this case) to the Scout Trust and they quoted a price of about 400 to take it on plus your own legal fee. I had contacted two of the three Trustees and they were happy with that should it go ahead. I knew who the other one was.

    The DC told me to drop it as not to open a can of worms.

    I know at some point after that that one of the trustees died and another one did a couple of years ago (both those who I contacted). So there is only one now. I guess that she knows what she is legally obliged to do 9but don't think she does), but I am not longer in a role where I need to worry.

    To transfer Trustees as far as I could ascertain you needed a legal document each time as they are names people not just Chair etc. So if changing every few years would cost far more than the 400 plus legal fees for one change to SATC.

    Just as I remember it.

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    Unfortunately, we're in Scotland where the law is different.

    However, and this is just my guess... Is the reason the HT's aren't named specifically to avoid any paperwork around changing names having to happen? Are the Holding Trustee's the positions, as opposed to the individuals holding those positions?

    We had to renew our lease (we own our building but not the land it sits on) when we renovated. It was also a can of worms we were advised to avoid, but the organisation giving us the cash demanded it - so its what we did. It was about 300 and a bit of nail biting in case the cooncil decided to build a Tesco Express or a car park... You know how it can sometimes go...

    I wasn't overly involved with it in any case and since we're in Scotland... However, it seems to me, going through the bother and expense each time you change office bearers (as you've described it), doesn't seem right.

    But then, look at where we are...


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    Quote Originally Posted by pa_broon74 View Post
    Is the reason the HT's aren't named specifically to avoid any paperwork around changing names having to happen? Are the Holding Trustee's the positions, as opposed to the individuals holding those positions?
    They were chosen as the appropriate signatories due to the offices they held, but they signed the lease as named individuals "acting as the trustees". I'm not sure if that was intended to mean Holding Trustees. I don't think anyone realised we needed HTs at the time, so I suspect it referred to them being charity trustees, but (perhaps by accident) the wording nevertheless seems to mean that they are the HTs.
    Quote Originally Posted by pa_broon74 View Post
    However, it seems to me, going through the bother and expense each time you change office bearers (as you've described it), doesn't seem right.)
    That's why I want to be clear about the precise extent of the bother and expense, so I can show the GEC that avoiding doing this once every few years for the next 95 years would justify the short-term cost and effort of transferring to SATC.

    ...Or, perhaps even better, convert the group from a charitable trust to a CIO. One of the main reasons the new status of CIO was created a few years ago was so that charities can own land and buildings in their own name without the downsides of being a company. This would have the advantage that the group could act in its own name in relation to the property, without needing SATC. I'm guessing that getting SATC to do things means jumping through hoops, which is probably costly and happens very slowly. But that's a secondary decision, once I've first got agreement that we should move away from having local HTs.

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    I sort of knew that SATC existed, I don't think what they do applies to Scotland however, so it's never been something we've dealt with.

    The guidance on applying to SATC on the scout website 'looks' quite tame...

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    Quote Originally Posted by IvanOpinion View Post
    I'm currently carrying out a review of the legal position regarding our hut, which we built 5 years ago. Can anyone help with the following questions? If it makes a difference due to different laws, we are in England. (I'll take as read the normal caveats: your replies are not legal advice and ideally I should get legal advice.)
    My experience is with land held and buildings built by an archery club when I was Club Secretary but the legal principals are the same.

    Quote Originally Posted by IvanOpinion View Post
    1. I'm trying to work out who currently has legal title to our 100 year lease over the land. The lease was not transferred to SATC or any other custodian. It was signed by our then Chair and GSL, "acting as the trustees". This makes me think that those two people are the Holding Trustees (for the purpose of POR 13.2.c). Other than the short wording in the lease, as quoted, there is no document under which they are declared the HTs or their duties/powers as HTs are specified. But in the absence of anything to the contrary, I think they must be the HTs. Does that sound right?
    Unincorporated associations (such as archery clubs or Scout groups) cannot own or lease real property (real property is land or buildings). Hence the legal requirement that land and buildings are owned by named people who have agreed to act as trustees - that is, they have agreed to act on behalf of and on the instruction of the club or group. The trustees should have signed a Deed of Trust with the GEC setting down their agreement that they will so act. Without a Deed of Trust you are at risk.

    Quote Originally Posted by IvanOpinion View Post
    2. Are charity trustees (such as Chair and GSL) allowed to be HTs of the land and buildings beneficially owned by the charity? Surely POR would say so, if this was not permitted? As it doesn't, I infer that this is allowed, unless anyone knows different?
    Anybody (or preferably bodies) can hold the property on trust. But they have to be named people (or a corporation). They can be members of the Group or anybody else, such as a local solicitor or your mum.

    Quote Originally Posted by IvanOpinion View Post
    3. The GSL has since stepped down and currently has only limited connections with the group, so clearly they should no longer be a HT. I'm familiar with the benefits of transferring title to the SATC, but our GEC is resistant to change and currently seems disinclined to use SATC. I think they see it as being easier to transfer the HT role to new individuals every time the existing HTs cease to be willing/able/alive/appropriate. I know most groups won't have come across this, as they use SATC, but does anyone have any practical experience of how easy it is to transfer to a new HT? Specifically:
    It's not necessary that the old GSL steps down as trustee if he's happy to continue and if the GEC is happy for him to continue. The GEC needs to be satisfied on continuity of ownership, which means trustees need to remain contactable and compos mentis.
    Since the trustees legally own the property they don't resign as such, there has to be a legal transfer of the property from one set of trustees to another set, and that transfer needs to be registered with the Land Registry.

    Quote Originally Posted by IvanOpinion View Post
    3(a) Am I right in understanding that the HT role cannot transfer automatically, unlike the charity trustee role, which is automatically transferred if you become/cease to be a GEC member (POR 13.1.a)?

    3(b) And am I right that we can't just effect the transfer by way of a minuted decision of the GEC/charity trustees at an AGM? Rather, we need to draw up and execute a new Declaration of Trust document, signed by the old HTs as settlors, naming the new HTs? Does this need to be drawn up by lawyers or is there a template we can use?

    3(c) Do we need to register such a change with the Land Registry? If yes, is there a fee for this and would we need a lawyer to do it for us?

    3(d) Is there any other procedure or red tape or expense?
    Now, if you built on common land (as we did) it all gets much more exciting!
    John Russell
    ex-CSL now ACSL 1st Pinhoe Exeter Devon
    Cubs don't care how much you know, but they need to know how much you care.

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    The below text is taken from an old document (2001 Factsheet) so some of the info may be out of date but the why and Local pros and Cons will still be valid. Other info on HQ website over three pages that is current.
    2. Why Trustees?
    Groups, Districts and Counties are educational charities. The Scout Association is registered with the Charity Commission. By virtue of an Exception Order, Groups etc. do not need to be separately registered unless they own or lease land or have permanent endowment investments.
    If they are in rateable occupation of the property they should be separately registered.
    Groups are not “corporate bodies” able in law to hold land with or without buildings in their own name. They can only do so through trustees who hold the legal estate for the benefit of the Group etc. concerned.
    3. Who can be Trustees?
    The Group/District/County Executive Committee (as the “charity trustees” responsible for “managing” their respective Scouting resources and property) may invite:
    a) a few (not more than FOUR) individuals to become trustees (whom in these notes are called “local trustees” - see paragraph 5), OR
    b) a properly constituted trust corporation to become sole trustee, the Scout Association Trust Corporation being one such body – see paragraph 6.

    5. Local Trustees - the Pros and Cons
    Sometimes a Group etc. may wish to ensure that some of those who have been actively concerned with a project continue to be associated with it afterwards, or may wish to enlist the interest of ex-Scouters or other well-disposed prominent local people. Appointing them as trustees may then be seen as a gesture by way of compliment to them.
    This may prove in practice to be quite satisfactory for some time. But individuals move, lose contact, wish to be released, or die, so that from time to time successors must be appointed to keep the trust active. This can prove troublesome and give rise to delays and to costly legal problems. Of course, even custodian trustees have certain
    responsibilities and duties, particularly where there are “dealings” with a property. Their role is not a passive one. Any trustee has the continuing and over-riding responsibility for “safe custody” within the law governing charitable trusts.
    When Groups etc. are considering the question of appointing trustees they will find the advice of a friendly local solicitor worthwhile.

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    IvanOpinion

    You do not make it clear if you are the GSL - either way, I would suggest the GSL & Chairman need to steer the GEC to transfer the Lease to the SATC -- if it is good enough for 5,000 other Units I can't believe it isn't good enough for yours. The matter can then be put to bed for the next 95 years. I am not sure how the TSA would react if you tried to register as a CIO - I can't believe they would be happy.
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    Take legal advice on this.

    We had a situation whereby two of the original three Trustees for a property had passed, leaving one very elderly gent, who was, not in the best of health. It took quite a bit to get the Trustees changed, and then to legitimise the transfer to the SATC.

    There was a case, in Nottingham, that was discussed, either here or on UKRS, of a Scout group who found themselves locked out of their own premises. The Trustees had died, leaving one individual in charge and he sold the property out from under the group.

    This is a topic where the basics look simple, but it is best to take proper guidance.
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    Quote Originally Posted by JohnR View Post
    The trustees should have signed a Deed of Trust with the GEC setting down their agreement that they will so act. Without a Deed of Trust you are at risk.
    I was hoping that the "acting as the trustees" wording in the lease effectively acted as a Deed of Trust. POR 13.2.d says "Holding Trustees of land must be appointed under either a Declaration of Trust or named as the Trustees in the relevant Conveyance, Lease, Licence or such other Deed, Transfer or other formal agreement as may be necessary in the circumstances." But whether I'm right or not, I think it would certainly be better to have an explicit Deed of Trust, spelling out duties and powers. I am confident the two HTs will always do the right thing, but still better to get the paperwork right.
    Quote Originally Posted by JohnR View Post
    Anybody (or preferably bodies) can hold the property on trust. But they have to be named people (or a corporation). They can be members of the Group or anybody else, such as a local solicitor or your mum.
    So, you are saying being Chair does not bar someone from being a HT. Thanks.
    Quote Originally Posted by JohnR View Post
    It's not necessary that the old GSL steps down as trustee if he's happy to continue and if the GEC is happy for him to continue. The GEC needs to be satisfied on continuity of ownership, which means trustees need to remain contactable and compos mentis.
    Although we aren't obliged to switch to a new HT, I feel it is safest if people step down as HT once they cease being active in the group. Otherwise, we might not know when they die/go barmy/move away/become uncooperative.
    Quote Originally Posted by JohnR View Post
    Since the trustees legally own the property they don't resign as such, there has to be a legal transfer of the property from one set of trustees to another set, and that transfer needs to be registered with the Land Registry.
    As I thought. So, retaining local HTs is not the low-hassle solution, at least not in the long run.
    Quote Originally Posted by JohnR View Post
    Now, if you built on common land (as we did) it all gets much more exciting!
    Oh heck! We are on common land. Our lease was granted by the trustees of the common in question. What issues did this cause you?

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    Quote Originally Posted by johnL View Post
    You do not make it clear if you are the GSL - either way, I would suggest the GSL & Chairman need to steer the GEC to transfer the Lease to the SATC -- if it is good enough for 5,000 other Units I can't believe it isn't good enough for yours. The matter can then be put to bed for the next 95 years. I am not sure how the TSA would react if you tried to register as a CIO - I can't believe they would be happy.
    I'm not the GSL. I'm effectively trying to convince the current GSL, as the GEC will follow his lead. He's got a lot on his plate, so I think he wishes to avoid unnecessary complications. I need to get him to understand that, sooner or later, leaving the HTs as they are is likely to cause complications.

    Why do you think TSA would disapprove of becoming a CIO? Is there a specific drawback, or do you just think they are resistant to change? Interestingly, there seems to be virtually no mention on CIOs on the TSA website, other than the last sentence on the following page, which implicitly seems to accept that groups could be CIOs. https://members.scouts.org.uk/suppor...94&moduleID=10 As CIOs have now existed for 7 years, it is surprising that TSA seems to have said nothing about whether being a CIO would be a good idea or not.

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    Quote Originally Posted by Bushfella View Post
    Take legal advice on this.

    We had a situation whereby two of the original three Trustees for a property had passed, leaving one very elderly gent, who was, not in the best of health. It took quite a bit to get the Trustees changed, and then to legitimise the transfer to the SATC.

    There was a case, in Nottingham, that was discussed, either here or on UKRS, of a Scout group who found themselves locked out of their own premises. The Trustees had died, leaving one individual in charge and he sold the property out from under the group.

    This is a topic where the basics look simple, but it is best to take proper guidance.

    That was one of the concerns that I had when looking into it. I guess that were they to do it now they would have to get death certificates to show that the two had indeed died. The third one must have been young when she took it on as it was in the 1960s and she is still quite active on the village on various societies etc.

    The added disadvantage here is the Guides are involved too and the remaining Trustee is a 'Guide' person. I do (or did) have a copy of the original document which is quite legal so not really understandable by me so would need legal advice.

    For those interested: it was a garage at one time (not parking but business) which was bought by two women and done up to make it a suitable HQ for the local Scouts and Guides which they were involved with. There was a fee to pay to buy the building from the two women.

    They moved away (to Scotland I think) and decided to write the debt off and gifted the building to the 'youth of the village'. (Effectively the Scouts and Guides but it doesn't say that). Three trustees were appointed a Solicitor, a Scouter and a Guider all named and signed and witnessed on a legal document. I had spoken to Solicitor and retired Scouter who have now died. This leaves the 'Guide' contact as sole Trustee for the building.

    You can see why I wanted to sort it (I had nothing to do with this Group but was aware of the situation) and why there was a can of worms and even more so now.

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    Quote Originally Posted by IvanOpinion View Post
    I was hoping that the "acting as the trustees" wording in the lease effectively acted as a Deed of Trust. POR 13.2.d says "Holding Trustees of land must be appointed under either a Declaration of Trust or named as the Trustees in the relevant Conveyance, Lease, Licence or such other Deed, Transfer or other formal agreement as may be necessary in the circumstances." But whether I'm right or not, I think it would certainly be better to have an explicit Deed of Trust, spelling out duties and powers. I am confident the two HTs will always do the right thing, but still better to get the paperwork right.
    Naming the registered owners as trustees on the conveyance or registration with Land Registry doesn't impose any obligations on them. It's the Deed of Trust that defines what they can and can't do, which you can legally enforce.


    Quote Originally Posted by IvanOpinion View Post
    Oh heck! We are on common land. Our lease was granted by the trustees of the common in question. What issues did this cause you?
    Building on common land requires the consent of the Secretary of State of DEFRA, in practice the Planning Inspectorate. It took me a year to get that sorted, including advertising in the local paper and inviting objections, before a visit and inspection by an Inspector sent down from London who recommended the consent. During this process the local district council, who own the land and lease it to us, discovered that they hadn't got Secretary of State's consent for a football field changing rooms that they'd built next door. I understand that it took them a lot longer to get retrospective consent.
    John Russell
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    Quote Originally Posted by JohnR View Post
    Building on common land requires the consent of the Secretary of State of DEFRA, in practice the Planning Inspectorate. It took me a year to get that sorted, including advertising in the local paper and inviting objections, before a visit and inspection by an Inspector sent down from London who recommended the consent.
    Ah, we were replacing a previous building on the same footprint, so perhaps SoS consent not needed. Or perhaps we got it; I only got involved soon after planning permission was given.

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    Quote Originally Posted by IvanOpinion View Post
    I'm not the GSL. I'm effectively trying to convince the current GSL, as the GEC will follow his lead. He's got a lot on his plate, so I think he wishes to avoid unnecessary complications. I need to get him to understand that, sooner or later, leaving the HTs as they are is likely to cause complications.

    Why do you think TSA would disapprove of becoming a CIO? Is there a specific drawback, or do you just think they are resistant to change? Interestingly, there seems to be virtually no mention on CIOs on the TSA website, other than the last sentence on the following page, which implicitly seems to accept that groups could be CIOs. https://members.scouts.org.uk/suppor...94&moduleID=10 As CIOs have now existed for 7 years, it is surprising that TSA seems to have said nothing about whether being a CIO would be a good idea or not.
    My understanding (so beware this is not exhaustive or legal advice)
    The difference between 'trust' charities and Foundation CIOs - (I have setup a Men's Shed group as a Foundation CIO so have a some knowledge of the process involved)
    The ideal Constitution for Scouts Groups is embodied in POR Rule 3.23
    The Constitution for a Foundation CIO is setout by the Charity Commission, and only limited changes are allowed - and they do check the changes are acceptable to them and send it back if they are not happy.
    I have not done a comparison between the Scouts POR constitution and the CIO one; but I suspect there will be some differences - which may not be inline with POR...
    THis page is worth a read - https://www.gov.uk/guidance/charity-...se-a-structure
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