Burial Ground Template Clauses

These Template Clauses are for use when a former burial ground is sold by way of the grant of a long lease. When drafting the lease, please consider the contents of the Burial Ground Sale Focus Note (This is available to Methodist Managing Trustees and their professional advisers in the password protected 'Trustee Documents' section of this website. Please contact TMCP if you require the password). Please note that this is not a complete template lease, but template clauses that Managing Trustees' solicitors must incorporate in the body of the lease that they are using for the burial ground sale. Unless indicated otherwise, the only amendments that should be made are those necessary to take account of differences in terminology between the rest of the lease and the template clauses:

Lease

1. Front page

On the front sheet the Landlord should be described as:

“TRUSTEES FOR METHODIST CHURCH PURPOSES as Custodian Trustees and [NAME OF FIRST MANAGING TRUSTEE] and [NAME OF SECOND MANAGING TRUSTEE] as Managing Trustees of the [Church Council] OR [Circuit Meeting] OR [OTHER MANAGING TRUSTEE BODY] (*1) of [NAME OF MANAGING TRUSTEE BODY - USE REGISTERED NAME IF REGISTERED WITH THE CHARITY COMMISSION]”

2. Prescribed clauses

Prescribed clauses must be used in accordance with the Land Registry’s requirements:

3. Parties

BETWEEN

(1) “TRUSTEES FOR METHODIST CHURCH PURPOSES of Central Buildings Oldham Street Manchester M1 1JQ being a charitable body corporate established by the Methodist Church Act 1939 registered with charity number 1136358 (the Board);” and

(2) If the managing trustee body is NOT a registered charity:

“[NAME OF FIRST MANAGING TRUSTEE] and [NAME OF SECOND MANAGING TRUSTEE] and others being the members (or such of the members as have attained full age) of the [Church Council] OR [Circuit Meeting] OR [OTHER MANAGING TRUSTEE BODY] of the [NAME OF MANAGING TRUSTEE BODY] whose collective address for service is [COLLECTIVE ADDRESS FOR SERVICE OF MANAGING TRUSTEES] (the Managing Trustees) and who collectively with the Board are referred to as the Landlord;”

OR

If the managing trustee body is a registered charity:

“[NAME OF FIRST MANAGING TRUSTEE] and [NAME OF SECOND MANAGING TRUSTEE] and others being the members (or such of the members as have attained full age) of the [Church Council] OR [Circuit Meeting] OR [OTHER MANAGING TRUSTEE BODY] of [NAME OF REGISTERED CHARITY] (charity number [NUMBER]) whose collective address for service is [COLLECTIVE ADDRESS FOR SERVICE OF MANAGING TRUSTEES] (the Managing Trustees) and who collectively with the Board are referred to as the Landlord; and”

(3) [NAME] of [ADDRESS] (the Tenant)

4. Definitions and Interpretation

The usual terms; Property, Term etc. should be expressly defined in the lease.  The definitions set out in paragraph 4.1 are required (unless indicated otherwise) to accommodate the TMCP template clauses. Please only amend the terminology when necessary to reflect the drafting of the rest of the lease.

4.1 Definitions:

The following definitions and rules of interpretation apply in this lease:

Graves: all and any graves, headstones, monuments and/or memorials that are on or at the Property from time to time.

Model Trusts: the model trusts for the time being contained in Part III of Schedule 2 to the 1976 Act.

Permitted Use: please include wording to the effect that use is “use as garden land” so that use of the Property continues to be in keeping with the history of the land as a burial ground and the burial ground covenants in the lease.

Plan: the plan attached to this lease.

Premium: £[AMOUNT] (AMOUNT IN WORDS).

Property: the land and building at [ADDRESS] shown edged [COLOUR] on the attached plan – Note that if the burial ground is sold with other land “the Property” demised by the lease should be the former burial ground only.

Reservations: all of the rights excepted, reserved and granted to the Landlord by this lease.

Term: the term of years created by the lease.

1976 Act: the Methodist Church Act 1976.

2011 Act: the Charities Act 2011.

If the Church is retaining any part of the site then please use the defined term; Board's Neighbouring Property.

4.2 References to the Managing Trustees include their successors from time to time ascertained in accordance with the provisions of Part II of Schedule 2 to the 1976 Act.

4.3 References to the Tenant include where the context so admits its successors in title.

4.4 References to the Board shall include the persons for the time being entitled to the reversion immediately expectant upon the determination of the Term.

4.5 References to the Landlord are to the Board and the Managing Trustees together and to their respective successors in title and assigns and the persons from time to time entitled to the reversion immediately expectant on the determination of the Term.

4.6 In the event of the reversion of this lease being transferred to a third party then all references in the body of this lease to the Managing Trustees and/or the Board shall be to the Landlord.
  
4.7 Whilst the Landlord is the Board and the Managing Trustees together all covenants indemnities and obligations on the part of the Landlord are given by the Managing Trustees and not by the Board and nothing in this lease shall impose any personal liability on the Board as Custodian Trustees.

4.8 In this lease all covenants, indemnities and all other obligations on the part of the Tenant shall be deemed to be made with the Managing Trustees and Board separately.

5. Charity law and Methodist law statements

The following provisions must be included in the body of the lease:

5.1  The Board holds the Property as custodian trustees upon the Model Trusts and the Managing Trustees are the managing trustees of the Property ascertained in accordance with the provisions of Part II of Schedule 2 to the 1976 Act.

5.2 The Property is held by or in trust for a charity by the Board, the charity is a non-exempt charity and this disposition is not one falling within paragraph (a), (aa), (b), (c) or (d) of Section 117(3) of the Charities Act 2011, but there is power under the trusts of the charity to effect the disposition and sections 117 to 121 of that Act have been complied with. (*7)
 

5.3 The Board have signified their written concurrence to the grant of this lease by their execution of this lease.

5.4 This lease has been approved and ordered to be executed by a resolution duly passed at a duly constituted meeting of the Managing Trustees and it is intended to be executed by two of the Managing Trustees upon whom the Managing Trustees acting under Section 333 of the 2011 Act have duly conferred a general authority to execute in the names and on behalf of the Managing Trustees all assurances and other deeds and instruments.

If the tenant is a connected person:

5.5 The Managing Trustees certify that the Tenant is a connected person for the purposes of s.118([RELEVANT SUB-SECTION]) of the 2011 Act and that as charity trustees they have obtained an order from the Charity Commission authorising this disposition.

6. Demise

6.1 In consideration of the Premium now paid by the Tenant to the Board (receipt of which the Board and the Managing Trustees respectively acknowledge) and of the covenants on the part of the Tenant contained in this lease, the Board as Custodian Trustees and the Managing Trustees as managing trustees let the Property with limited title guarantee to the Tenant for the Term.

6.2 The Property will be let with limited title guarantee subject to the proviso that for the purpose of the covenant implied by section 3(3) of the Law of Property (Miscellaneous Provisions) Act 1994 neither the Board nor the Managing Trustees are to be considered as being aware of an action of another person merely because it is or was known to or notice of it was given to a predecessor in title or co-trustee.

7. Reservations

7.1 If the Church is retaining any part of the site then the usual rights should be reserved to the Landlord including but not limited to; the usual rights to develop neighbouring property, re-route service media, rights of light air support protection and any other rights recommended by the surveyor.

7.2 The lease should include any required Reservations. The wording below is by way of example only of the sort of provisions usually found:

“The Landlord reserves the right to enter the Property, having given reasonable notice to the Tenant (except in the case of an emergency when no notice is required), with its workers, contractors, agents or professional advisers:

(a) [if rights are reserved in clause 7.1, then a provision to allow access to repair, maintain or replace any service media or structure relating to any of the rights reserved;]

(b) to inspect its condition and state of repair following which the Landlord may give the Tenant a notice of any breach of any of the Tenant covenants of this lease relating to the condition or repair of the Property;

(c) to carry out any works needed to remedy the breach set out in any notice served under clause [NUMBER] if the works have not been carried out by the Tenant to the reasonable satisfaction of the Landlord within the time period specified in the notice; and

(d) for any other purpose mentioned in or connected with

a. this lease;

b. the Reservations; and

c. the Landlord’s interest in the Property [and the Board's Neighbouring Property].

7.3 The Reservations may be exercised by the Landlord and by anyone else who is or becomes entitled to exercise them, and by anyone authorised by the Landlord.

8. Tenant covenants & burial ground covenants

The Tenant covenants with the Managing Trustees and as a separate covenant with the Board:

[insert appropriate Tenant’s covenants and the burial ground covenants below]

Burial ground covenants:

8.1 Not to:

(a) use the Property for any purpose other than the Permitted Use;

(b) move any Graves;

(c) render any Graves inaccessible; or

(d) commence any building work or do anything else at the Property that is likely to disturb any human remains

without first obtaining at the Tenant’s expense all necessary consents licences or orders.

8.2  To comply with all laws relating to the Property, its use by the Tenant and any works carried out at it including but not limited to the Disused Burial Ground (Amendment) Act 1981.

8.3  Within one week after receipt of any notice or other communication affecting the Property (and whether or not served pursuant to any law) to:

(a) send a copy of the relevant document to the Managing Trustees; and

(b) in so far as it relates to the Property take all steps necessary to comply with the notice or other communication and take any other action in connection with it as the Landlord may reasonably require.

8.4  To indemnify and keep indemnified the Board and separately the Managing Trustees against all liabilities, expenses, actions, proceedings, costs (including but not limited to any solicitors', surveyors' or other professionals' costs and expenses, and any VAT on them, assessed on a full indemnity basis), claims, demands, damages and losses (including but not limited to any diminution in the value of the Landlord’s interest in the Property and loss of amenity of the Property) suffered or incurred by the Landlord whatsoever arising out of or in connection with:

(a) the Property including but not limited to any arising in consequence of any change of use, works or other activities at the Property;

(b) any breach of any of the Tenant covenants of this lease; or

(c) any act or omission of the Tenant, any undertenant or their respective workers, contractors or agents or any other person at the Property with the express or implied authority of any of them.

8.5 Until such time that all the Graves and human remains have been moved in strict accordance with any applicable legislation:

(a) to keep the Property in a neat and tidy condition;

(b) to maintain properly all Graves; and

(c) to allow relatives of the deceased and others to access the Graves.

Commonwealth war grave covenants

If the disused burial ground contains one or more Commonwealth War graves:

8.6 The Tenant covenants with the Managing Trustees and as a separate covenant with the Board:

(a) Not to disturb or permit the disturbance of the remains of the war casualties whose names and dates of death appear in the Schedule to this lease and who are interred within the Property;

(b) To allow access for inspection and maintenance purposes to the war graves of the said war casualties in the Property; and

(c)   Not to remove or disturb or permit the removal or disturbance of any tombstone monument or memorial relating to the said war casualties in the Property without prior consultation with the Commonwealth War Graves Commission in appropriate circumstances.

9. Landlord Covenants

We would not expect any landlord’s covenants beyond quiet enjoyment:
 
The Managing Trustees covenant with the Tenant, that, so long as the Tenant pays the rents reserved by and complies with its obligations in this lease, the Tenant shall have quiet enjoyment of the Property without any interruption by the Landlord or any person claiming under the Landlord except as otherwise permitted by this lease.

10. Remedy breaches

10.1 If the Landlord has given the Tenant notice under Clause [NUMBER] of any breach of any of the Tenant covenants in this lease relating to the repair or condition of the Property, to carry out all works needed to remedy that breach as quickly as possible, and in any event within the time period specified in the notice (or immediately if works are required as a matter of emergency) to the reasonable satisfaction of the Landlord.

10.2 To pay to the Landlord on demand the costs properly incurred by the Landlord in carrying out any works pursuant to Clause [NUMBER] (including any solicitors’, surveyors' or other professionals’ costs and expenses, and any VAT on them, assessed on a full indemnity basis).

11. Execution Provisions

IN WITNESS whereof the Board have caused their Common Seal to be affixed to this lease and [NAME OF FIRST MANAGING TRUSTEE] and [NAME OF SECOND MANAGING TRUSTEE] (being the persons authorised by this lease in the names and on behalf of the Managing Trustees) and the Tenant have executed this lease as a deed and delivered it on the date at the head of this lease.

Note that two authorised Managing Trustees and charity trustees must sign.

V.02 27/03/2024