The Education (New Procedures for Property Transfers) Regulations 2000

regulation 5(2)

SCHEDULE 1 Provisions of section 198 of and Schedule 10 to the 1988 Act as modified by regulations 5 to 7 of these Regulations (applying to land transfers in relation to schools changing category or joining or leaving foundation bodies)

    Section 198

(3) In carrying out the functions conferred or imposed on them by that Schedule—

(a) the Secretary of State in relation to England or the National Assembly in relation to Wales—

(i) shall not act on behalf of the transferor, the transferee or any other interested person, but

(ii) shall seek to ensure that all such persons' interests are protected;

SCHEDULE 10 Supplementary provisions with respect to transfers

Division and apportionment of property etc

1.— (1) Any property, rights and liabilities of a transferor authority held or used or subsisting—

(a) for the purposes of more than one relevant institution; or

(b) partly for the purposes of one or more relevant institutions and partly for other purposes of the transferor authority;

shall, where the nature of the property, right or liability permits, be divided or apportioned between the transferees, or (as the case may be) between the transferor authority and the transferee or transferees, in such proportions as may be appropriate.

(2) Any property, rights or liabilities of a transferor body shall, where the nature of the property, rights or liability permits, be divided or apportioned between the transferees or, (as the case may be) between the transferor body and the transferee or transferees, in such proportions as may be appropriate.

(3) Where any estate or interest in land falls to be divided in accordance with either sub-paragraph (1) or sub-paragraph (2) above—

(a) any rent payable under a lease in respect of that estate or interest; and

(b) any rent charged on that estate or interest;

shall be correspondingly divided or apportioned so that each part is payable in respect of, or charged on, only one part of the estate or interest and the other part or parts are payable in respect of, or charged on, only the other part or parts of the estate or interest.

(4) Any such property, right or liability as is mentioned in sub-paragraph (1) or (2) above the nature of which does not permit its division or apportionment as so mentioned shall be transferred to the transferee (or to one or other of the transferees) or retained by the transferor authority or body according to—

(a) in the case of an estate or interest in land, whether on the transfer date the transferor authority or body or the transferee (or one or other of the transferees) appears to be in greater need of the security afforded by that estate or interest or, where none of them appears to be in greater need of that security, which of them appears on that date to be likely to make use of the land to the greater extent; or

(b) in the case of any other property or any right or liability, which of them appears on the transfer date to be likely to make use of the property or (as the case may be) to be affected by the right or liability to the greater extent;

subject (in either case) to such arrangements for the protection of the other person or persons concerned as may be agreed between the transferor authority or body and the transferee or determined by the Secretary of State in relation to England or the National Assembly in relation to Wales under paragraph 3 below.

(5) In this paragraph—

(a) “relevant institution” means—

(i) any institution which a body corporate is established under this Act to conduct;

(ii) any institituion to which section 130 of this Act applies; and

(iii) any maintained school;

(c) references to a transferor authority are references to a local authority who are the transferor for the purposes of any transfer to which this Schedule applies;

(d) references to a transferor body are references to any foundation body who are the transferor for the purposes of any transfer to which this Schedule applies;

and for the purposes of this sub-paragraph references to a maintained school or a foundation body have the same meaning as in the School Standards and Framework Act 1998.

Identification of property, rights and liabilities

2.— (1) It shall be the duty of the transferor and the transferee, whether before or after the transfer date, so far as practicable to arrive at such written agreements, and to execute such other instruments, as are necessary or expedient to identify or define the property, rights and liabilities transferred to the transferee or retained by the transferor or for making any such arrangements as are mentioned in paragraph 1(4) above and as will—

(a) afford to the transferor and the transferee as against one another such rights and safeguards as they may require for the proper discharge of their respective functions; and

(b) make as from such date, not being earlier than the transfer date, as may be specified in the agreement or instrument such clarifications and modifications of the effect of the provisions of this Act or of the 1998 Act (or any regulations made under it) under which the transfer is required on the property, rights and liabilities of the transferor as will best serve the proper discharge of the respective functions of the transferor and the transferee.

(2) Any such agreement shall provide so far as it is expedient—

(a) for the granting of leases and for the creation of other liabilities and rights over land whether amounting in law to interests in land or not, and whether involving the surrender of any existing interest or the creation of a new interest or not;

(b) for the granting of indemnities in connection with the severance of leases and other matters;

(c) for responsibility for registration of any matter in any description of statutory register.

(3) If and to the extent that he or it is requested to do so by the transferor or the transferee, the Secretary of State in relation to England or the National Assembly in relation to Wales shall—

(a) assist the transferor, the transferee and any other interested person in identifying or defining the property, rights and liabilities transferred to the transferee or retained by the transferor;

(b) advise such persons as to the terms of any agreement or instrument falling to be made under sub-paragraph (1) above;

…

(d) prepare drafts of any such agreement or instrument; and

(e) assist the parties in executing and giving effect to any such agreement or instrument.

(3A) Within 6 months after the transfer date the transferor shall send the Secretary of State in relation to England or the National Assembly in relation to Wales a copy of an executed transfer agreement or, if no agreement has been executed, so notify him or it.

(4) If and to the extent that they are requested to do so by any person falling to make a transfer agreement under paragraph 4, 7 or 9(2) of Schedule 21 to the 1998 Act or any corresponding provision of regulations under that Act, the Secretary of State in relation to England or the National Assembly in relation to Wales shall exercise any one or more functions falling within sub-paragraph (3) above in relation to such an agreement, or an instrument made pursuant to such an agreement, as if it were an agreement or instrument falling to be made under sub-paragraph (1) above.

(5) Any transfer of any estate or interest in land under this paragraph or under paragraph (1) above (whether by virtue of an agreement or instrument entered into before or after the transfer date) shall be regarded as having taken place on the transfer date.

(6) In this paragraph—

“the 1998 Act” means the School Standards and Framework Act 1998;

3.   —…

(2) In the case of any matter on which agreement is required to be reached under paragraph 2(1) above, if such an agreement has not been reached within a period of 6 months from the transfer date, the Secretary of State in relation to England or the National Assembly in relation to Wales may give a direction determining that matter, and may include in the direction any provision which might have been included in an agreement under paragraph 2(1) above.

(3) Any property, rights or liabilities required by a direction under this paragraph to be transferred to the transferee shall be regarded as having been transferred to, and by virtue of this Act vested in, the transferee on the transfer date.

(4) The Secretary of State in relation to England or the National Assembly in relation to Wales shall consult the transferor, the transferee and any other interested person before giving a direction under this paragraph.