Corner House & Memorial Hall Annual Meeting

Wed 24 Sep, 12:22

Apologies for a long and complex post. But I think debate the trustees needs to take place on the basis of an informed understanding of the (complex) legal position and I won’t be able to attend the meeting on Friday to explain my own understanding of it.   If the trustees think I’ve got anything wrong, I hope they say so, and explain why.

There seem to me to be two legal issues that the trustees need to address: 1. would allowing the Deli to occupy part of the Corner House premises be consistent with their duties as charity trustees under the charitable purposes for which the CH is now held; and 2. would that be prevented by anything in the charity’s title to the premises? I think these distinct issues have become confused and need to be separated.

On issue 1, I can’t myself see why the terms of the 1946 deed are relevant, given that (as I understand it) the premises are now owned by the Corner House and Memorial Hall CIO, as part of its corporate property and therefore freed from any earlier trusts. If that’s the position, what the trustees need to be considering under this issue are not the restrictions in the 1946 deed but the purposes of the CIO. (Discussion would accordingly be assisted by reminding people what the CIO’s Constitution says they are - precisely, rather than in summarised form.) That shouldn’t be surprising, since charitable purposes are (rightly) being brought up to date all the time to meet changing circumstances. Whether what’s proposed honours Mr Morris’s intentions might be a moral issue but it doesn’t seem to me to be a legal one.

Assuming that what the CIO trustees have in mind is that the Deli should pay less than a fully commercial rental or licence fee, its occupation would have to further the CIO’s charitable purposes directly, as a matter of law (and charity law is complex). There seem to me to be two issues in that connection: whether providing what the Deli offers furthers the CIO’s stated purposes (which is open to discussion, since not every purpose that provides community benefit qualifies as a charitable purpose in law); and whether it’s for the public benefit - any private benefit to individuals (in this case the DELI’s shareholders) being ancillary or incidental to the wider public benefit. The proposed agreement that any profits are not distributed could be enough to meet the second point.

Whilst this set of issues may seem complicated, it seems to me that they can be resolved conclusively, without the need to consult lawyers, by putting the matter to the Charity Commission. It has power to authorise what’s proposed if it considers it in the CIO’s best interests, in a way that would protect the trustees from any subsequent challenge. If I were a trustee I would accordingly have done that, to satisfy myself that I was acting correctly.

On issue 2, the question is whether the terms of the 1946 deed or anything else in the title to the premises imposes a legally enforceable restriction (a ‘restrictive covenant’) on the use to which the CH premises can be put. I haven’t seen the deed but think that would only be the case if the restrictions on use it imposed were for the benefit of some other land retained by Mr Morris - which seems unlikely. This is a matter on which I think the trustees do need to take legal advice, but I’d have thought it ought to be possible for a suitably qualified solicitor to come to a clear view on the question fairly easily.