Charles Kenyon: Where charity law and church law collide

Our columnist was shocked by an 'outdated' piece of legislation

Charles Kenyon
Charles Kenyon

It was a shock to find that a local charity is subject to ecclesiastical law as well a charity law. Under the 1806 Enclosure Act, some land was given to our church. In 1974 a registered charity was formed to administer it to the benefit of the church.

Recently a 25-year lease was agreed with a neighbour to rent the land. An order was obtained from the Charity Commission, which makes helpful provision for small charities that need to lease or sell property.

Our problem came from the Land Registry. The trustees of the charity were no longer proprietors: the owner was listed, from 2005, as the local diocese. The diocese pointed to the 1964 Incumbents and Churchwardens (Trusts) Measure of the Church of England, giving it the right to act as custodian trustees, having conducted a transfer with the parish in 1991. Custodian trustees are not listed in Charity Commission records. They must assist the managing trustees without regulating their legal actions, but the apparent primacy of ecclesiastical law imposes the diocese's retained solicitor, who, in this case, requires payment to incorporate the interests of the diocese into a simple lease.

Guidance from the Charity Commission, Custodian Trustees, appears to have been due for review since 2012. It is time to take control of this outdated legislation and stop thousands of small charities operating in the shadow of an expensive bureaucracy that their founders could never have envisaged.

Charles Kenyon lives near Market Rasen, retiredcolonel@oldvicarage.net

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