The Commonhold (Amendment) Regulations 2009

• Citation: S.I. 2009/2363
• Sections: 90

Section 1 Citation and commencement

These Regulations may be cited as the Commonhold (Amendment) Regulations 2009 and shall come into force on 1 st October 2009.

Section 2 Amendments to the Commonhold Regulations 2004

The Commonhold Regulations 2004 are amended in accordance with the following regulations.

Section 3 Amendments to the Commonhold Regulations 2004

In regulation 2(2)(b) (joint unit-holders), for “articles 4(d) and 75”, substitute “articles 9(d) and 75”.

Section 4 Amendments to the Commonhold Regulations 2004

In regulation 12 (the name of the commonhold association)—

(a) in paragraph (1)—

(i) for “Companies Act 1985”, substitute “Companies Act 2006 ”; and

(ii) for “if the memorandum of association states that the commonhold association’s registered office is to be situated in Wales,”, substitute “if the commonhold association is a Welsh company”; and

(b) at the end of paragraph (3), insert “, and “Welsh company” has the meaning given by section 88 of the Companies Act 2006.”

Section 5 Amendments to the Commonhold Regulations 2004

Omit regulation 13 (memorandum of association).

Section 6 Amendments to the Commonhold Regulations 2004

In regulation 14 (articles of association)—

(a) for paragraph (4), substitute—

(4) The articles of association of a commonhold association may increase—

(a) the proportion and number of members in article 16;

(b) the notice periods in article 21;

(c) the number of consecutive months and meetings in article 49(f); and

(d) the proportion and number of directors in article 61;

(b) omit paragraphs (5) and (7);

(c) in paragraph (8)(j), for “articles 40, 41 and 54”, substitute “articles 41, 42 and 56”; and

(d) in paragraph (9)(a), for “articles 45 and 46”, substitute “articles 46 and 47”.

Section 7 Amendments to the Commonhold Regulations 2004

In regulation 19(2) (termination)—

(a) for “section 13 of the Companies Act 1985”, substitute “section 15 of the Companies Act 2006”; and

(b) for “section 28”, substitute “section 80”.

Section 8 Amendments to the Commonhold Regulations 2004

Omit Schedule 1 (memorandum of association).

Section 9 Amendments to the Commonhold Regulations 2004

For Schedule 2 (articles of association), substitute Schedule 2 as set out in the Schedule to these Regulations.

Section 10 Amendments to the Commonhold Regulations 2004

In Schedule 3 (commonhold community statement)—

(a) in paragraph 1.1.5(c), omit “memorandum or”;

(b) in paragraph 1.4.5—

(i) in the definition of “company number”, for “Companies Act 1985”, substitute “Companies Act 2006”;

(ii) omit the definition of “memorandum”;

(iii) for the definition of “ordinary resolution”, substitute—

“ordinary resolution” has the meaning given in section 282 (ordinary resolutions) of the Companies Act 2006;

(iv) for the definition of “special resolution”, substitute—

“special resolution” has the meaning given in section 283 (special resolutions) of the Companies Act 2006;

(c) in paragraph 4.8.3, for “Companies Act 1985”, substitute “Companies Act 2006”;

(d) in paragraph 4.10.3, omit “memorandum and”; and

(e) in paragraph 4.10.4, omit “memorandum and”.

Section 1

In these articles—

“ the Act ” means the Commonhold and Leasehold Reform Act 2002;

“the 2006 Act ” means the Companies Act 2006;

“bankruptcy” includes individual insolvency proceedings in a jurisdiction other than England and Wales or Northern Ireland which have an effect similar to that of bankruptcy;

“chairman of the meeting” means the person chairing a general meeting, in accordance with article 18 or 19 (chairman of the meeting);

“clear days”, in relation to the period of a notice, means that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;

“the commonhold” means the land in respect of which the commonhold community statement is registered;

“the commonhold association” means the commonhold association named in article 2;

“commonhold community statement” has the meaning given in section 31 (commonhold community statement: form and content: general) of the Act;

“commonhold unit” has the meaning given in section 11 (commonhold unit: definition) of the Act;

“the developer” means (see section 58(1) (development rights) of the Act) the person who makes an application to register a freehold estate in land as a freehold estate in commonhold land, and his successor in title who is treated as the developer, and who carries on development business on the commonhold land;

“director” means a director of the company, and includes any person occupying the position of director, by whatever name called;

“member” means a person whose name is entered as a member in the register of members of the commonhold association (see article 7 (membership) ) but excludes any person who has ceased to be a unit-holder or joint unit-holder or who has resigned as a member;

“ordinary resolution” has the meaning given in section 282 (ordinary resolutions) of the 2006 Act;

“pre-commonhold period” means the period beginning with incorporation of a commonhold association and ending when land specified in its articles becomes commonhold land;

“secretary” means the secretary of the commonhold association or any other person appointed to perform the duties of the secretary of the commonhold association, including a joint, assistant or deputy secretary;

“special resolution” has the meaning given in section 283 (special resolutions) of the 2006 Act;

“subscribers” means the persons who subscribed their names to the memorandum of association of the commonhold association;

“transitional period” has the meaning given in section 8 (transitional period) of the Act;

“unit-holder” has the meaning given in sections 12 (unit-holder) and 13 (joint unit-holders) of the Act;

“in writing”, and cognate expressions, in relation to any notice or document, means a notice or document sent or supplied in hard copy form or in electronic form as those expressions are defined in section 1168 (hard copy and electronic form and related expressions) of the 2006 Act.

Unless the context otherwise requires, other words and expressions contained in these articles bear the same meaning as in the Act including any statutory modification or re-enactment of it for the time being in force or, as the case may be, in the 2006 Act as in force on the date when these articles become binding on the commonhold association; and words in the singular include the plural and words in the plural include the singular.

Section 2

The name of the company (referred to in this document as “the commonhold association”) is [ insert name of commonhold association here ].

Section 3

The registered office of the commonhold association is to be situated in [ England and Wales ] [ Wales ] ( delete as appropriate ).

Section 4

The object of the commonhold association is to exercise the functions of a commonhold association in relation to land known as [ insert name or description of the land here ] Commonhold in accordance with the commonhold community statement of that commonhold, as amended from time to time, and any provision made by or by virtue of Part 1 of the Act and the doing of all such things as are incidental or conducive to the attainment of that object.

Section 5

The liability of the members is limited.

Section 6

Without prejudice to any further liability which he may have under or arising out of the commonhold community statement, every member of the commonhold association undertakes to contribute such amount as may be required, not exceeding £1, to the assets of the commonhold association if it should be wound up while he is a member or within one year after he ceases to be a member, for payment of the debts and liabilities of the commonhold association contracted before he ceases to be a member, and of the costs, charges and expenses of winding up the commonhold association, and for the adjustment of the rights of the contributaries among themselves.

Section 7 Membership

The persons who are entitled to be entered in the register of members of the commonhold association are—

(a) in the pre-commonhold period, the subscribers to the memorandum of association of the commonhold association;

(b) during the transitional period, the subscribers to the memorandum of association of the commonhold association and a person who for the time being is a developer in respect of all or part of the commonhold;

(c) on transfer of a commonhold unit or where a commonhold unit becomes commonhold land by registration with unit-holders under section 9 of the Act, a person who becomes the unit-holder; and

(d) on transfer of a commonhold unit; or, where a commonhold unit becomes commonhold land by registration with unit-holders under section 9 of the Act and two or more persons become joint unit-holders of a commonhold unit and—

(i) the joint unit-holders nominate, in writing to the commonhold association, one of themselves to be entered in the register of members, the person so nominated;

(ii) if no nomination is received by the commonhold association in accordance with sub-paragraph (i) within seven days beginning with the date on which the joint unit-holders are entitled to be registered as proprietors of the freehold estate in the commonhold unit, the person whose name appears first in the proprietorship register;

(iii) the court orders a joint unit-holder to be entered in the register of members in place of a person who is or who would be entitled to be registered under sub-paragraph (ii), the person so ordered by the court; or

(iv) the joint unit-holders nominate one of themselves to be entered in the register of members in place of the person previously entered by virtue of sub-paragraph (i), (iii) or this sub-paragraph, the person so nominated.

Section 8 Register of members

In accordance with Chapter 2 (register of members) of Part 8 (a company’s members) of the 2006 Act, the commonhold association must—

(a) keep a register of members and enter in it—

(i) the name, address and unit number, where applicable, of each member and an address for correspondence (if different);

(ii) the date on which the person was registered as a member; and

(iii) the date at which the person ceased to be a member; and

(b) keep the register available for inspection at its registered office or at a place specified in regulations under section 1136 (regulations about where certain company records are to be kept available for inspection) of the 2006 Act.

Section 9 Register of members

The commonhold association must enter the particulars of a person in the register of members of a commonhold association where the person is entitled to be entered in the register within fourteen days beginning with—

(a) in the pre-commonhold period, the date of incorporation of the commonhold association;

(b) in the transitional period, the date on which the developer notifies the commonhold association of his right to be registered;

(c) on registration with unit-holders, the date on which Land Registry gives notice that the registration of the land as commonhold land has been completed;

(d) on the transfer of a commonhold unit, the date on which the commonhold association receives notification, in writing, from the new unit-holder that the transfer has taken place;

(e) in the event that no nomination is received from joint unit-holders under article 7(d)(i)—

(i) the date on which the commonhold association becomes aware that the joint unit-holders are registered as the freehold proprietors in the commonhold unit; or

(ii) if the court orders a joint unit-holder to be entered in the register of members in place of a person who is or who would be entitled to be registered under paragraph (i), the date the commonhold association receives notice of the court order; or

(f) in the event that joint unit-holders nominate one of themselves to be entitled to be entered in the register of members in place of the person entered by virtue of paragraph (d), (e)(ii) or this paragraph, the date on which the commonhold association receives the nomination.

Section 10 Annual general meetings

The commonhold association must hold an annual general meeting.

Section 11 Contents of notice

Without derogation from any requirement of the 2006 Act, the notice must specify the time, date and place of the meeting and, in the case of an annual general meeting, must specify the meeting as an annual general meeting. Meetings should take place within the commonhold or at a similarly convenient location.

Section 12 Contents of notice

The notice must also include or be accompanied by a statement of the agenda of the business to be transacted at the meeting, the text of any written resolution to be proposed and a brief written explanation of them.

Section 13 Entitlement to receive notice

The notice must be given to every member and every director of the commonhold association; but, subject to the 2006 Act, if any person entitled to receive notice is not sent it or does not receive it, this does not invalidate the proceedings at the meeting if the failure to notify was accidental.

Section 14 Business to be transacted

Business must not be transacted at any general meeting unless details of it were included in the notice convening the meeting in accordance with article 12. In the event that the text of an ordinary resolution is given in the notice convening the meeting in accordance with article 12, a proposal to amend an ordinary resolution may, however, be voted upon if the terms of the proposed amendment were received by the commonhold association at its registered office, or at an address specified in the notice convening the meeting for the purpose of receiving electronic communications, before the time appointed for the meeting. The decision of the chairman as to the admissibility of any proposed amendment will be final and conclusive and does not invalidate any proceedings on the substantive resolution.

Section 15 Order of business

At any general meeting, so far as practicable and subject to any contrary ordinary resolution of the meeting, any business arising from a requisition of members will be transacted before any other business and, if there is more than one requisition, the business arising from them will be transacted in the order in which the requisitions were received by the commonhold association.

Section 16 Quorum

Business must not be transacted at any general meeting unless a quorum is present. The quorum for the meeting is one-fifth of the members of the commonhold association or two members of the commonhold association (whichever is the greater) present in person or by proxy or, if the member is a corporation, by authorised representative (second and additional proxies or authorised representatives of the same member being disregarded for the purpose of establishing whether a quorum is present).

Section 17 Quorum

If the relevant quorum is not present within half an hour after the time set for the meeting or, if during a meeting such a quorum ceases to be present, the meeting is adjourned to the same day in the next week at the same time and place or to another day, time and place as decided by the directors.

Section 18 Chairman of the meeting

The chairman, if any, of the board of directors or in his absence some other director or person nominated by the directors will preside as chairman of the meeting. If neither the chairman nor such other director or person (if any) is present within fifteen minutes after the time set for the meeting and willing to act, the directors present may elect one of themselves to be chairman or, if there is only one director present and willing to act, he will be chairman.

Section 19 Chairman of the meeting

If no director is willing to act as chairman or if no director is present within fifteen minutes after the time set for the meeting, the members present and entitled to vote must choose one of themselves to be chairman.

Section 20 Role of director

A director, despite not being a member, is entitled to attend, speak and propose (but, subject to article 26, not vote upon) a resolution at any general meeting.

Section 21 Adjournment

The chairman may adjourn the meeting with the consent of any quorate meeting (and must if so required by the meeting), but no business is to be transacted at an adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place. No notice is required of an adjourned meeting unless the meeting is adjourned for fourteen days or more, in which case at least seven clear days’ notice must be given of the time, date and place of the adjourned meeting and the general nature of the business to be transacted.

Section 22 Vote on a resolution and demand for a poll

A resolution put to the vote of a meeting will be decided on a show of hands unless, before or on the declaration of the result of the show of hands, a poll is demanded. A poll may be demanded—

(a) by the chairman; or

(b) by at least two members having the right to vote on the resolution; or

(c) by a member or members representing not less than one-tenth of the total voting rights of all the members having the right to vote on the resolution;

and a demand by a person as proxy for a member, or as authorised representative of a corporate member, is the same as a demand by the member.

Section 23 Vote on a resolution and demand for a poll

Unless a poll is demanded, a declaration by the chairman that a resolution has been carried or lost on a show of hands, whether unanimously or by a particular majority, or an entry to that effect in the minutes of the meeting is conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour or against the resolution.

Section 24 Proceedings on a poll

The demand for a poll may be withdrawn before the poll is taken, but only with the consent of the chairman. The withdrawal of a demand for a poll does not invalidate the result of a show of hands declared before the demand for the poll was made.

Section 25 Proceedings on a poll

A poll will be taken in such manner as the chairman directs, having particular regard to the convenience of members, and he may appoint scrutineers (who need not be members). The result of the poll will be announced at the meeting at which the poll takes place and is deemed to be the resolution of the meeting at which the poll was demanded.

Section 26 Proceedings on a poll

In the case of an equality of votes, whether on a show of hands or on a poll, the chairman is entitled to a casting vote in addition to any other vote he may have.

Section 27 Proceedings on a poll

A poll demanded on the election of a chairman, or on a question of adjournment of a meeting, must be taken immediately. A poll demanded on any other question may be taken at such time as the chairman directs, having regard to the convenience of members, and not being more than thirty days after the poll is demanded. The demand for a poll does not prevent the meeting dealing with any business other than the business being determined by poll. If a poll is demanded before the declaration of the result of a show of hands and the demand is withdrawn, the meeting will continue as if the demand had not been made.

Section 28 Proceedings on a poll

No notice need be given of a poll not taken immediately if the time, date and place at which it is to be taken are announced at the meeting at which it is demanded. In any other case at least seven clear days’ notice must be given of the time, date and place at which the poll is to be taken.

Section 29 Allocation of votes on show of hands

On a show of hands, every member who (being an individual) is present in person or (being a corporation) is present by an authorised representative, not being himself a member entitled to vote, has one vote.

Section 30 Allocation of votes on a poll

On a poll—

(a) during the pre-commonhold period or the transitional period, every member has one vote; and

(b) at any other time, every member has the number of votes that are allocated in the commonhold community statement to him in respect of the commonhold unit of which he is the member and, where a member is a member in respect of more than one unit, the sum of the votes allocated to him in respect of those units.

Section 31 Entitlement to vote – lack of mental capacity

A member in respect of whom any order has been made by any court having jurisdiction (whether in the United Kingdom or elsewhere) in matters concerning mental disorder may vote, whether on a show of hands or on a poll, by his deputy or other person authorised in that behalf appointed by that court, and any such deputy or other person may, on a poll, vote by proxy. Evidence to the satisfaction of the directors of the authority of the person claiming to exercise the right to vote may be deposited at the registered office or at such other place as is specified in accordance with the articles for the deposit of an appointment of proxy, before the time appointed for the meeting or adjourned meeting at which the right to vote is to be exercised; or such evidence may be presented to the directors at the meeting. In default the right to vote is not exercisable.

Section 32 Entitlement to vote – receiver, administrator, trustee in bankruptcy, commissioner in sequestration or similar person

A receiver appointed by the court or by a mortgagee, an administrator, a trustee in bankruptcy, a commissioner in sequestration or similar person may vote in place of a member, whether on a show of hands or on a poll. Evidence to the satisfaction of the directors of the authority of the person claiming to exercise the right to vote may be deposited at the registered office or at such other place as is specified in accordance with the articles for the deposit of an appointment of proxy, before the time appointed for the meeting or adjourned meeting at which the right to vote is to be exercised; or such evidence may be presented to the directors at the meeting. In default the right to vote is not exercisable.

Section 33 Entitlement to vote – mortgagee in possession

A mortgagee who provides—

(a) a certificate confirming that possession has been taken of a commonhold unit; and

(b) an official copy of the charges register of the title to the commonhold unit showing it as the registered proprietor of the charge,

is entitled to vote in place of a member, whether on a show of hands or on a poll. The person claiming to exercise the right to vote must deposit such evidence at the registered office or at such other place as is specified in accordance with the articles for the deposit of appointments of proxy, before the time appointed for the meeting or adjourned meeting at which the right to vote is to be exercised; or such evidence may be presented to the directors at the meeting. In default the right to vote is not exercisable.

Section 34 Objections to qualification of voter

Objections to the qualification of any voter may only be raised at the meeting or adjourned meeting at which the vote objected to is tendered, and every vote not disallowed at the meeting is valid. Any objection made in due time must be referred to the chairman whose decision is final and conclusive.

Section 35 Votes on a poll in person or by proxy

On a poll votes may be given either personally or by proxy. A member may appoint more than one proxy to attend on the same occasion.

Section 36 Form of appointment of proxy

(1) The appointment of a proxy must be in writing, signed by or on behalf of the appointor and must be in the following form (or a form to the same effect or in any other form which the directors may approve in writing)—

[ Name of commonhold association ]

I/We [ name(s) ], of [ address ], being a member/members of the above-named commonhold association, appoint [ name ] of [ address ] or, failing him, [ name ] of [ address ] as my/our proxy to vote in my/our name and on my/our behalf at the (annual) general meeting of the commonhold association to be held on [date ] and at any adjournment of it.

Signed on [ date ] by [ name ]

(2) Where the member wishes to instruct the proxy how he must act, the appointment of a proxy must be in the following form (or a form to the same effect or in any other form which the directors may approve in writing)—

[ Name of commonhold association ]

I/We [ name(s) ], of [ name of commonhold association ], being a member/members of the above-named commonhold association, appoint [ name ] of [ address ] or, failing him, [ name ] of [ address ] as my/our proxy to vote in my/our name and on my/our behalf at the (annual) general meeting of the commonhold association to be held on [date ] and at any adjournment of it.

This form is to be used in respect of the resolutions mentioned below as follows:

Resolution No. 1 for* against* abstain*

Resolution No. 2 for* against* abstain*

Etc.

*Delete as appropriate

Unless instructed otherwise, the proxy may vote as he thinks fit or abstain from voting.

Signed on [ date ] by [ name ]

(3) Unless a proxy notice indicates otherwise, it must be treated as allowing the person appointed under it a proxy discretion as to how to vote on any resolution put to the meeting, including any ancillary or procedural resolution.

Section 37 Notice of proxy

(1) The appointment of a proxy and any authority under which it is signed or a copy of such authority properly certified notarially or approved in another way by the directors may—

(a) in the case of an appointment contained in electronic form, where an address has been specified for the purpose of receiving documents in electronic form—

(i) in the notice convening the meeting, or

(ii) in any form of appointment of proxy sent out by the commonhold association in relation to the meeting, or

(iii) in any invitation in electronic form to appoint a proxy issued by the commonhold association in relation to the meeting,

be received at that address; or

(b) in any other case, be deposited at the registered office of the commonhold association or at such other place within the United Kingdom as is stated either in the notice convening the meeting or in any form of appointment of proxy sent out by the commonhold association in relation to the meeting,

by the times stated in paragraph (2).

(2) The times are—

(a) the time for holding the meeting or adjourned meeting, at which the person named in the appointment or authority proposes to vote (or, failing that, at the meeting or adjourned meeting, by delivering the appointment or authority to the chairman, secretary or any director); or

(b) in the case of a vote to be given in a poll taken not more than 48 hours after the poll was demanded, the time at which the poll was demanded; or

(c) in the case of a vote to be given in a poll taken more than 48 hours after the poll was demanded, the time appointed for taking the poll.

(3) The appointment of a proxy, and any authority (or copy of the authority) under which the appointment is signed, are valid only if deposited, received or delivered in accordance with this article.

Section 38 Notice of termination of authority

(1) The validity of a vote given or poll demanded or of anything done as chairman of a meeting, by a proxy for a member or by the authorised representative of a corporation, or whether the proxy or authorised representative counts in deciding whether there is a quorum at a meeting, is not affected by the previous termination of his authority unless notice of the termination was received by the commonhold association at—

(a) the registered office; or

(b) at such other place at which the appointment of proxy was deposited; or

(c) where the appointment of the proxy was in electronic form, at the address at which such appointment was received,

before the start of the meeting or adjourned meeting at which the vote is given, the poll is demanded, the chairman acts, or the question as to whether there is a quorum arises; or (in the case of a vote given in a poll taken not more than 48 hours after the poll was demanded) by the time at which it was demanded; or (in the case of a vote given in a poll taken more than 48 hours after the poll was demanded) before the time appointed for taking the poll.

(2) In calculating the period mentioned in paragraph (1), no account shall be taken of any part of a day that is not a working day.

Section 39

The number of directors must not be less than two, of whom one must be a natural person (who may hold the office of director as a corporation sole or otherwise by virtue of an office).

Section 40 Qualification

A director need not be a member of the commonhold association.