Guidance Note 23: Transfer of Property
This note applies from 1 April 2024
Applies to England
Guidance Note 23: Section 167-169 of the Housing and Regeneration Act 2008 (as amended) (‘the Act’) - Transfer of Property
| Target | Applicable |
|---|---|
| PRP (For Profit) | X |
| PRP (Not For Profit) | ✔ |
| PRP (Registered Charity) | ✔ |
| Local Authority | X |
Type of Power: General Power
Scope
1 - This power enables property of not-for-profit private registered providers which are registered societies or registered companies and have been dissolved or wound up to be transferred to the regulator or another not-for-profit private registered provider as directed by the regulator.
2 - It can only be exercised in relation to registered charities which are registered companies, unless regulations are made by the Secretary of State to extend these powers to charities which are not registered companies under section 169 of the Act.
When the Regulator use this power
3 - Section 167(1)-(2) provides that where a not-for-profit private registered provider is dissolved or wound-up, any surplus property that is available after satisfying their liabilities shall be transferred either to:
- the regulator; or
- a specified not-for-profit private registered provider (as directed by the regulator).
4 - The regulator envisages that this power will be used in the following circumstances:
- where there is a serious, financial risk to social housing assets and the surplus property will help to facilitate strategies for the resolution of such cases; or
- where there is a serious risk to tenants such as where there are health and safety issues which are not capable of being rectified by the provider.
This list is not exhaustive.
5 - The regulator may decide to utilise surplus property by offering direct financial assistance.
Process for using the power
6 - Where a not-for-profit registered provider (‘transferring provider’) is dissolved or wound -up as set out in section 167(1), the regulator can:
- require any surplus property that is available after satisfying the transferring provider’s liabilities be transferred to the regulator, or a specified not for profit registered provider as directed by the regulator (‘receiving provider’); or
- discharge the transferring provider’s liabilities, where it has any, so that any land retained by it does not need to be sold and can be transferred to the regulator, or a receiving provider.
7 - If the transferring provider is a registered charity, their property must be transferred to a charity whose objects the regulator thinks are similar to those of the transferring provider (sections 167(4) and 168(3) of the Act).
8 - If the surplus property which is being transferred to a receiving provider includes land which is subject to a mortgage or charge, the regulator may dispose (as defined in section 273 of the Act) of the land:
a) subject to that mortgage or charge; or b) subject to a new mortgage or charge in favour of the regulator.
9 - Any surplus property transferred to and held by the regulator may only be disposed of to a not-for-profit private registered provider (section 168(2) of the Act).
10 - The Act does not impose any consultation or notification duties on the regulator, but the regulator will consider if there are any relevant stakeholders and take steps to do so.
Appeal process
11 - There is no statutory right of appeal or appeals’ process in accordance with the regulator’s appeals scheme.