Managing Trustees may find themselves approached by service providers, e.g. telecoms, utilities or fibre broadband companies that wish to install pipe, cable or communication apparatus under, over or on Church land.
If the Managing Trustees are willing to accede to such a request they will most commonly be asked by the service provider to sign a Wayleave Agreement.
What is a Wayleave Agreement?
A Wayleave Agreement is an agreement under which a property owner gives a service provider a right to install pipe or cable passing through or over the owner’s property, usually in return for an annual payment. It is a personal agreement and does not bind future owners of the property.
A service provider will often use a standard basic Wayleave Agreement which can be heavily weighted in their favour. It is therefore important that Managing Trustees follow the correct procedure and obtain professional advice before entering into a Wayleave Agreement.
Charities Act 2011 requirements
A Wayleave Agreement is considered a disposal for the purposes of the Charities Act 2011 therefore before Managing Trustees enter into it they will have to instruct a surveyor to prepare a Qualified Surveyor’s Report (QSR). Guidance on what constitutes a QSR can be found in this Focus Note.
The surveyor will also have to advise Managing Trustees on the following:
- Whether the level of fee proposed by the service provider is appropriate
- Whether the proposed installation of the cables/pipes/apparatus will affect the valuation of the Church’s property
- Whether any installation of cables/pipes/apparatus will impact on any future development of the Church.
Once the QSR has been prepared a copy should be sent to TMCP.
Managing Trustees will also have to take legal advice on the proposed Wayleave Agreement before signing it. It may be that an Easement (a permanent right registered against the title to the property) or a Lease would be the most appropriate way of proceeding. A solicitor will be able to advise the Managing Trustees on the provisions and implications of the Wayleave Agreement as well as to confirm whether it is indeed the best way to document what is proposed.
Although TMCP holds legal title to Methodist property in its capacity as Custodian Trustee, on the Model Trusts, TMCP will not be a party to the Wayleave Agreement as it is a contractual agreement granted by the Managing Trustees. TMCP do however have to approve the Agreement on behalf of the Connexional Team under Standing Order 931(3).
TMCP have template clauses which need to be incorporated into a Wayleave Agreement to reflect the relationship between TMCP as the legal title holder and the Church Council as Managing Trustees. TMCP will provide these to the Solicitor acting for the Managing Trustees.
Managing Trustees should ensure that they are not financially out of pocket when entering into Wayleave Agreements and should seek their legal and surveyor’s costs from the service provider.
Whilst, at first glance, entering into a Wayleave Agreement may seem little more than signing a standard document provided by a service provider, Managing Trustees need to be aware of their responsibilities as charity trustees and follow the procedure set out above. If Managing Trustees are approached by a service provider regarding a Wayleave Agreement they should contact TMCP for guidance and assistance.
If you have any queries in relation to the guidance in this document please contact TMCP Legal for further assistance.