Building Societies Act 1986

Mergers U.K.

93 Amalgamations. U.K.

(1) Any two or more buildings societies desiring to amalgamate may do so by establishing a building society as their successor in accordance with this section and Schedule 16 to this Act

(2) In order to establish a building society as their successor the societies desiring to amalgamate must—

[F1 (a) agree the purpose or principal purpose of their successor to be that of making loans which are secured on residential property and are funded substantially by its members, and agree upon the extent of its powers, in a memorandum which complies with the requirements of Schedule 2 to this Act;]

(b) agree upon the rules for the regulation of their successor which comply with the requirements of that Schedule;

[F2 (c) each approve the terms of the amalgamation by two resolutions which also approve the memorandum and the rules of their successor and of which—

(i) one is passed as a shareholding members’ resolution, and

(ii) the other is passed as a borrowing members’ resolution,

in accordance with the applicable provisions of that Schedule;]

(d) make a joint application to the [F3 appropriate authority] for confirmation of the amalgamation and send to the [F4 [F5 FCA and, if the society is a PRA-authorised person, the PRA] three] copies of the rules and of the memorandum, each copy signed by the secretary of each of the societies.

(3) If the [F6 appropriate authority] confirms the amalgamation under section 95, [F7 and] [F8 the FCA] is satisfied, as regards the proposed successor, of the matters relating to its rules, its purpose and powers and its name as to which it must, under paragraph 1 of Schedule 2 to this Act, be satisfied before it registers a society, [F9 the FCA must] —

(a) register the successor society,

(b) issue to it a certificate of incorporation, specifying a date (“the specified date”) as from which the incorporation takes effect,

(c) retain and register one copy of the memorandum and of the rules,

(d) return another copy to the secretary of the successor, together with a certificate of registration, and

(e) keep another copy, together with a copy of the certificate of incorporation and of the certificate of registration of the memorandum and the rules, in the public file of the successor society.

(4) On the specified date all the property, rights and liabilities of each of the societies whose amalgamation was confirmed by the [F10 appropriate authority] (whether or not capable of being transferred or assigned) shall by virtue of this subsection be transferred to and vested in the society so incorporated as their successor.

(5) On the specified date, each of the societies to which the successor succeeds shall be dissolved by virtue of this subsection; but the transfer effected by subsection (4) above shall be deemed to have been effected immediately before the dissolution.

[F11 (6) If, on the specified date, each of the societies whose amalgamation was confirmed by the [F12 appropriate authority] has permission under [F13 Part 4A] of the Financial Services and Markets Act 2000 to accept deposits, the [F12 appropriate authority] shall, with effect from that date, give their successor such permission under that Part as it considers appropriate, and shall notify the successor of the permission by giving the successor a decision notice.

(6A) Part XXVI of the Financial Services and Markets Act 2000 applies to a decision notice given under this section as it applies to a decision notice given under [F14 subsection (5) of section 55V of that Act by virtue of paragraph (a) or (b) of that subsection] , except that—

(a) section 390 (final notices) does not apply, and

(b) for the purposes of section 391 (publication) the decision notice is to be treated as if it were a final notice rather than a decision notice.

(6B) The giving of permission pursuant to subsection (6) above is to be treated for the purposes of [F15 section 55Z3] of the Financial Services and Markets Act 2000 (right to refer matters to the [F16 Upper Tribunal]) as if it were the determination of an application made by the successor under [F17 Part 4A] of that Act, and Part IX of that Act (hearings and appeals) applies accordingly (but subject to subsection (6C) below).

(6C) In the application of Part IX of that Act by virtue of subsection (6B) above, [F18 section 133A(4)] (which prevents F19 ... action specified in a decision notice [F20 from being taken] until after any reference and appeal) is omitted.]

F21 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 S. 93(2)(a) substituted (1.12.1997) by 1997 c. 32, s. 43, Sch. 7 para. 41(a); S.I. 1997/2668, art. 2, Sch. Pt. I(j)(l)(viii)

F2 S. 93(2)(c) substituted (1.12.1997 in specified cases and for specified purposes and otherwise in accordance with art. 2(2)(3)(5) of S.I. 1997/2668) by 1997 c. 32, ss. 43, 47(3), Sch. 7 para. 4(4)1(b); S.I. 1997/2668, art. 2, Sch. Pt. II(w)(z)(xxv)

F3 Words in s. 93(2)(d) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(2)(a) (with Sch. 12)

F4 Words in s. 93(2)(d) substituted (17.8.2001 for specified purposes and otherwise 1.12.2001) by S.I. 2001/2617, art. 13(1), Sch. 3 Pt. II para. 177(a)(ii) (with art. 13(3), Sch. 5); S.I. 2001/3538, art. 2(a)

F5 Words in s. 93(2)(d) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(2)(b) (with Sch. 12)

F6 Words in s. 93(3) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(3)(a) (with Sch. 12)

F7 Word in s. 93(3) substituted (17.8.2001 for specified purposes and otherwise 1.12.2001) by S.I. 2001/2617, art. 13(1), Sch. 3 Pt. II para. 177(b)(ii) (with art. 13(3), Sch. 5); S.I. 2001/3538, art. 2(a)

F8 Words in s. 93(3) inserted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(3)(b) (with Sch. 12)

F9 Words in s. 93(3) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(3)(c) (with Sch. 12)

F10 Words in s. 93(4) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(4) (with Sch. 12)

F11 S. 93(6)-(6C) substituted (17.8.2001 for specified purposes and otherwise 1.12.2001) by S.I. 2001/2617, art. 13(1), Sch. 3 Pt. II, para. 177(d) (with art. 13(3), Sch. 5); S.I. 2001/3538, art. 2(a)

F12 Words in s. 93(6) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(5)(a) (with Sch. 12)

F13 Words in s. 93(6) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(5)(b) (with Sch. 12)

F14 Words in s. 93(6A) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(6) (with Sch. 12)

F15 Words in s. 93(6B) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(7)(a) (with Sch. 12)

F16 Words in s. 93(6B) substituted (6.4.2010) by The Transfer of Tribunal Functions Order 2010 (S.I. 2010/22), art. 1(2)(e), Sch. 2 para. 8(a) (with Sch. 5)

F17 Words in s. 93(6B) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(7)(b) (with Sch. 12)

F18 Words in s. 93(6C) substituted (6.4.2010) by The Transfer of Tribunal Functions Order 2010 (S.I. 2010/22), art. 1(2)(e), Sch. 2 para. 8(b) (with Sch. 5)

F19 Words in s. 93(6C) omitted (1.4.2013) by virtue of The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(8)(a) (with Sch. 12)

F20 Words in s. 93(6C) inserted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 37(8)(b) (with Sch. 12)

F21 S. 93(7) repealed (1.12.2001) (with saving in S.I. 2001/2967, arts. 1(2), 9(1)(c)) by S.I. 2001/2617, arts. 2(b), 13(2) Sch. 4; S.I. 2001/3538, art. 2(1)

Modifications etc. (not altering text)

C1 Ss. 93–96 excluded by S.I. 1986/2168, art. 9(2)(b)(3)

94 Transfer of engagements. U.K.

(1) A building society may, in accordance with this section and Schedule 16 to this Act, transfer its engagements to any extent to another building society which, in accordance with this section and that Schedule, undertakes to fulfil the engagements.

(2) A building society, in order to transfer its engagements, must resolve to do so by two resolutions, of which one is passed as a [F22 shareholding members’ resolution] and the other as a borrowing members’ resolution in accordance with the applicable provisions of Schedule 2.

(3) A building society, in order to transfer some but not all of its engagements to its members in respect of shares held by them (with or without other engagements) must, in addition to resolving to transfer the engagements by the two resolutions required by subsection (2) above, resolve to do so by an affected shareholders’ resolution.

(4) For the purposes of this section in its application to a transfer by a society of engagements in respect of some shares in the society, an “affected shareholders’ resolution” is a resolution passed by a majority of the holders of those shares who, under the rules of the society, would be entitled to vote on a [F22 shareholding members’ resolution], disregarding for this purpose any shares of theirs in respect of which the society’s engagements are not to be transferred.

(5) A building society, in order to undertake to fulfil the engagements of another society, must resolve to do so—

(a) by two resolutions, of which one is passed as a [F22 shareholding members’ resolution] and the other as a borrowing members’ resolution in accordance with the applicable provisions of Schedule 2; or

(b) by a resolution of the board of directors, if the [F23 appropriate authority] consents to that mode of proceeding.

(6) The extent of the transfer, as so resolved by the society making and the society taking the transfer, shall be recorded in an instrument of transfer of engagements.

(7) A transfer of engagements between building societies shall be of no effect unless—

(a) the transfer is confirmed by the [F24 appropriate authority] under section 95; and

(b) a registration certificate is issued in respect of the transfer under subsection (8) below.

(8) Where the [F25 appropriate authority] confirms a transfer of engagements between building societies, [F26 the FCA must] —

(a) register a copy of the instrument of transfer of engagements; and

(b) issue a registration certificate to the building society taking the transfer;

and, on such date as is specified in the certificate, the property, rights and liabilities of the society transferring its engagements (whether or not capable of being transferred or assigned) shall, by virtue of this subsection, be transferred to and vested in the society taking the transfer to the extent provided in the instrument of transfer of engagements.

(9) The [F27 FCA] shall keep a copy of the instrument and of the registration certificate issued under subsection (8) above in the public file of the building society taking the transfer.

(10) Where all its engagements have been transferred, the society shall, by virtue of this subsection, be dissolved on the date specified in the registration certificate; but the transfer effected by subsection (8) above shall be deemed to have been effected immediately before the dissolution.

Textual Amendments

F22 Words in s. 94(2)(4)(5) substituted (1.12.1997 in specified cases and for specified purposes and otherwise in accordance with art. 2(2)(3)(5) of S.I. 1997/2668) by 1997 c. 32, ss. 43, 47(3), Sch. 7 para. 42; S.I. 1997/2668, art. 2, Sch. Pt. II(w)(z)(xxvi)

F23 Words in s. 94(5)(b) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 38(2) (with Sch. 12)

F24 Words in s. 94(7)(a) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 38(3) (with Sch. 12)

F25 Words in s. 94(8) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 38(4)(a) (with Sch. 12)

F26 Words in s. 94(8) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 38(4)(b) (with Sch. 12)

F27 Word in s. 94(9) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 38(5) (with Sch. 12)

Modifications etc. (not altering text)

C2 Ss. 93–96 excluded by S.I. 1986/2168, art. 9(2)(b)(3)

95 Mergers; provisions supplementing ss. 93 and 94. U.K.

(1) Part I of Schedule 16 to this Act shall have effect for imposing on building societies proposing to amalgamate or to transfer or undertake engagements requirements to issue statements to their members relating to the proposed amalgamation or transfer.

(2) Part II of Schedule 16 to this Act shall have effect for imposing requirements for notification by a building society, to its members and to the [F28 appropriate authority] of the receipt by the society of proposals for a transfer of engagements or an amalgamation.

(3) Where application is made to the [F28 appropriate authority] for confirmation of an amalgamation or transfer of engagements it shall, except as provided in [F29 subsections (4) to (6)] below, confirm the amalgamation or transfer; and Part III of Schedule 16 to this Act shall have effect with respect to the procedure on an application for such confirmation.

(4) Subject to subsection (5) below, the [F28 appropriate authority] shall not confirm an amalgamation or transfer of engagements if it considers that—

(a) some information material to the members’ decision about the amalgamation or transfer was not made available to all the members eligible to vote; or

(b) the vote on any resolution approving the amalgamation or transfer does not represent the views of the members eligible to vote; or

(c) some relevant requirement of this Act or the rules of any of the societies participating in the amalgamation or transfer was not fulfilled or not fulfilled as regards that society.

(5) The [F28 appropriate authority] shall not be precluded from confirming an amalgamation or transfer of engagements by virtue only of the non-fulfilment of some relevant requirement of this Act or the rules of a society if it appears to the [F28 appropriate authority] that it could not have been material to the members’ decision about the amalgamation or transfer and the [F28 appropriate authority] gives a direction that the failure is to be disregarded for the purposes of this section.

(6) Where the [F28 appropriate authority] would be precluded from confirming an amalgamation or transfer of engagements by reason of any of the defects specified in paragraphs (a), (b) and (c) of subsection (4) above, it may direct any building society concerned—

(a) to take such steps to remedy the defect or defects, including the calling of a further meeting, as it specifies in the direction; and

(b) to furnish the [F28 appropriate authority] with evidence satisfying it that it has done so;

and, if the [F28 appropriate authority] is satisfied that the steps have been taken and the defect or defects has or have been substantially remedied; the [F28 appropriate authority] shall confirm the amalgamation or transfer; but, if it is not so satisfied, it shall refuse its confirmation.

[F30 (6A) The PRA must consult the FCA before confirming an amalgamation or transfer, or giving a direction, under this section.

(6B) The PRA must—

(a) notify the FCA it if confirms an amalgamation or transfer; and

(b) send the FCA a copy of any direction it gives.]

F31 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) A failure to comply with a relevant requirement of this Act or any rules of a society shall not invalidate an amalgamation or transfer of engagements; but, if a society fails without reasonable excuse to comply with such a requirement the society shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale and so shall any officer who is also guilty of the offence.

(11) In this section “relevant requirement”, with reference to this Act or the rules of a society, means a requirement of section 93 or 94 or this section or of Schedule 16 to this Act or of any rules prescribing the procedure to be followed by the society in approving or effecting an amalgamation or transfer of engagements.

Textual Amendments

F28 Words in s. 95 substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 39(2) (with Sch. 12)

F29 Words in s. 95(3) substituted (1.12.1997) by 1997 c. 32, s. 43, Sch. 7 para. 43(1); S.I. 1997/2668, art. 2, Sch. Pt. I(j)(l)(ix)

F30 S. 95(6A)(6B) inserted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 39(3) (with Sch. 12)

F31 S. 95(7)-(9) repealed (1.12.1997) by 1997 c. 32, ss. 43, 46(3), Sch. 7 para. 43(2), Sch. 9; S.I. 1997/2668, art. 2, Sch. Pt. I(j)(l)(ix)(o)(v)

Modifications etc. (not altering text)

C3 Ss. 93–96 excluded by S.I. 1986/2168, art. 9(2)(b)(3)

96 Mergers: compensation for loss of office and bonuses to members. U.K.

(1) The terms of an amalgamation of or transfer of engagements between building societies may include provision for compensation to be paid by a society to or in respect of any director or other officer of that or any other society for loss of office or diminution of emoluments attributable to the amalgamation or transfer, but the provision must be authorised as follows that is to say—

(a) except in so far as paragraph (b) below applies, the provision for such compensation to be paid by a society must be approved by the society by a resolution passed as a special resolution, not being [F32 one of the two resolutions] required by section 93(2)(c) or 94(2) for the approval of the other terms of the amalgamation or transfer;

(b) if regulations are made under subsection (2) below authorising payments of such compensation within prescribed limits and the provision for such compensation includes only payments of amounts not exceeding the prescribed limits, the passing of [F33 the two resolutions] approving the terms of the amalgamation or transfer is sufficient authority for their payment.

(2) The [F34 Treasury] may by regulations authorise payments by building societies of compensation to directors or other officers for loss of office or diminution of emoluments attributable to amalgamations of, or transfers of engagements between, societies subject to limits specified in or determinable under the regulations and the regulations may make different provision for different classes of person.

(3) Nothing in subsection (1) or (2) above prevents a director or other officer from receiving payments from societies which, in the aggregate, exceed any limit applicable to him under subsection (2) above if the excess payment is included in provision approved as required by subsection (1)(a) above; but if any payment is received which has not been authorised under paragraph (a) or (b) of that subsection it shall be repaid.

(4) The terms of an amalgamation of, or transfer of engagements between, building societies may include provision for part of the funds of one or more of the participating societies to be distributed in consideration of the amalgamation or transfer among any of the members of the participating societies, but the provision must be authorised as follows, that is to say—

(a) subject to paragraph (b) below, the provision for such a distribution by a society shall not exceed the limits prescribed by regulations under subsection (5) below and the distribution must be approved by [F35 each of the two resolutions] giving the approval of the society to the terms of the amalgamation or transfer;

(b) if the provision for such a distribution by a society exceeds the prescribed limits, it must be approved by [F35 each of the two resolutions] of that society and each of the other societies particpating in the amalgamation or transfer by which each approved the terms of the amalgamation or transfer.

(5) The [F34 Treasury] shall by regulations authorise distributions of funds to members by building societies particpating in amalgamations or transfers of engagements subject to limits specified in or determinable under the regulations and the regulations may make different provision for different circumstances.

(6) Where the terms of a transfer of engagements include provision for a distribution of the funds of the society transferring or the society undertaking the engagements and the society undertaking the engagements applies to the [F36 appropriate authority] for its consent to the society’s approving the transfer by a resolution of the board of directors instead of [F37 the two resolutions required by section 94(5)(a)], the [F36 appropriate authority] shall not give its consent unless it is satisfied that the distribution proposed to be made by each society will not exceed the prescribed limits.

(7) The power to make regulations under subsection (2) or (5) above is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(8) In this section—

• “compensation” includes the provision of benefits in kind;

• “distribution of funds” with reference to bonuses paid to members, includes distribution by means of a special rate of interest available to members for a limited period;

• “loss of office” includes, in relation to a director or other officer of a building society holding office in [F38 any other body] by virtue of his position in that society, the loss of that office;

• “prescribed” with reference to limits on compensation or on distributions of assets, means prescribed by regulations under subsection (2) or (5) above, as the case may be.

Textual Amendments

F32 Words in s. 96(1)(a) substituted (1.12.1997) by 1997 c. 32, s. 43, Sch. 7 para. 44(1)(a); S.I. 1997/2668, art. 2, Sch. Pt. I(j)(l)(x)

F33 Words in s. 96(1)(b) substituted (1.12.1997) by 1997 c. 32, s. 43, Sch. 7 para. 44(1)(b); S.I. 1997/2668, art. 2, Sch. Pt. I(j)(l)(x)

F34 Words in s. 96(2)(5) substituted (17.8.2001 for specified purposes and otherwise 1.12.2001) by S.I. 2001/2617, art. 13(1), Sch. 3 Pt. II, para. 180(a) (with art. 13(3), Sch. 5); S.I. 2001/3538, art. 2(a)

F35 Words in s. 96(4) substituted (1.12.1997) by 1997 c. 32, s. 43, Sch. 7 para. 44(2); S.I. 1997/2668, art. 2, Sch. Pt. I(j)(l)(x)

F36 Words in s. 96(6) substituted (1.4.2013) by The Financial Services Act 2012 (Mutual Societies) Order 2013 (S.I. 2013/496), art. 1(1), Sch. 8 para. 40 (with Sch. 12)

F37 Words in s. 96(6) substituted (1.12.1997) by 1997 c. 32, s. 43, Sch. 7 para. 44(3); S.I. 1997/2668, art. 2, Sch. Pt. I(j)(l)(x)

F38 Words in s. 96(8) substituted (1.12.1997) by 1997 c. 32, s. 43, Sch. 7 para. 44(4); S.I. 1997/2668, art. 2, Sch. Pt. I(j)(l)(x)

Modifications etc. (not altering text)

C4 Ss. 93–96 excluded by S.I. 1986/2168, art. 9(2)(b)(3)

C5 S. 96(2)(5): Functions of Building Societies Commission transferred (1.12.2001) to the Treasury by S. I.2001/2617, art. 4(1), Sch. 1 Part III (with art. 5); S.I. 2001/3538, art. 2(a)