Definition
Whether or not a group of people is an unincorporated association is not always clear. A summary definition is # a ''group'' of people # gathered for a ''common purpose'' # but ''not for profit'' # intending to create a ''legally binding relationship'' between themselves. There is no statutory definition of an unincorporated association, so it has fallen to judges to define them. In the leading case, '' Conservative and Unionist Central Office v Burrell'',"Unincorporated"
"Unincorporated" indicates that the association is not aSpecial cases
In some instances statute intervenes to allow an unincorporated association to be treated ''as if'' it has legal personality, without actually conferring legal personality upon it: for example, in the UK, a trade union.Legal basis
The characteristics of an unincorporated association in common law jurisdictions arise almost exclusively from case law, rather than fromStructure and governance
Constitution
Of the essence of an unincorporated association is that every member has entered into legal relations with every other, i.e., by a contract ''"inter se"''. Generally this is by subscribing to a written constitution.Objects or purposes
Likewise of the essence is that the association has one or more purposes, and these are usually given at the head of the constitution. If it is impossible to bring an association's purposes into effect (e.g., where an association is formed to raise funds for a school which later goes out of existence), the association automatically dissolves. This derives from the rules surrounding frustration of contract. (For similar reasons, an association with only one object cannot amend it.)Members
The membership is the sovereign body in the organisation, as it is from their consent to enter into the contract ''inter se'' that the association exists at all. Their powers should be clearly set out in the constitution. Often these are limited to: * Appointing a committee to act on the association's behalf (usually by ballot but not always: it may be by consensus) * Removing the committee in cases of mismanagement * Approving the accounts and annual report of the committee * Exercising a 'reserve power' to require the committee to do or not to do something * Amending the constitutionCommittee
As an unincorporated association is not a person, it cannot legally do anything. The members usually entrust ("commit") the funds and management of the association to a committee, who act on the association's behalf. (In a tiny association this may not hold: there may be a one-person "committee", or there may be no committee and all members are equally authorised to act for the group.) The powers of the committee should be clearly set out in the constitution. If the association has no constitution, in the event of a dispute the Court will look to any general rules that the association has enacted and, as necessary, to principles of the general law. The committee areThe chair
There is usually a chairperson, or simply "chair", who presides over meetings both of the committee and of the members. In practice many chairs are forceful individuals, but in law their responsibility is to act as an impartial umpire. Chairs may have other powers: again, these should be clearly set out in the constitution.Other officers
Often a treasurer is appointed who is responsible for overseeing the funds of the association. Often there is a secretary who ensures all the rules of the association are duly followed.Liability
Because the association has noLegal difficulties
Legal difficulties arise from the fact that, while an association has no independentNature of held rights
There have been several theories proposed as to how rights, such as assets, are held by voluntary associations.Joint tenancy
The oldest theory is that rights transferred to a voluntary association are held by the current members of the association as joint tenants or tenants in common. This has the result that the member can receive his or her own share (allowing for severance in the case of joint tenants) irrespective of the other members, in the same way that a joint owner of a business can do so. In ''Bowman v Secular Society'' this construction was even applied to a gift given to be applied for the general purposes of the association. It is difficult to imagine, however, that this construction would be correctly applied in the case of a philanthropic society, where construing the gift as one to the members would contradict its stated purpose. There is also the possibility that the gift is to the current and future members of the society, which, by operation of the Perpetuities and Accumulations Act 1964 will operate for the benefit of those members within the perpetuity period.On trust for the purposes of the association
The second alternative is that the gift is to the trustees, or those officers who might properly be considered trustees, to be held on trust for the purposes of the association in a private purpose trust. Purpose trusts are not permitted in English law (with the exception of charitable trusts, which exempts charitable unincorporated associations from many of these difficulties), so any such gifts will fail for want of a beneficiary capable of enforcing the terms of the trust. However, the decision in '' Re Denley's Trust Deed'' allows for some trusts of this type to be held valid, and, accordingly, the case of '' Re West Sussex Constabulary's Widows, Children and Benevolent (1930) Fund Trusts'' applied this construction to the rights held by an unincorporated association. Reform to purpose trusts, such as making such a trust enforceable by a named individual (the chairman or treasurer, for example) rather than by a beneficiary (of which there may be none) would impact the role of the purpose trust in the voluntary association context.Contract-holding
The third alternative is that members hold the property as beneficial owners, but are bound by their contracts '' inter se'' as to their ability to take out their share. That share is considered to pass to the other members of the association upon the death or resignation of the member. The holding may then either be considered absolute, or on trust for the membership as a whole, but it is the role of contract in each case to determine the rights of members, including the officers, to apply the money. This approach was favoured in '' Re Recher’s Will Trusts'' in relation to a gift to the Anti-Vivisection Society, although, on the facts, that society was considered no longer in existence and the gift failed for this reason. One statement of when such an absolute gift will be considered to have been made was given in '' Re Lipinski’s Will Trusts'': Another statement of the principle came in , where Lewison J stated: This "contract-holding" theory is now considered the dominant theory in the field.In practice
The question of which construction applies to a particular transfer must be ascertained in any particular case. A donor could decide on what basis he or she was transferring the rights to the association; however, this is rarely considered by donors and thus which construction applies is often affected by the judge's own beliefs as to common practice. Sometimes the situation is clear: monies paid pursuant to a contract, such as raffle tickets and members' subscriptions, are normally taken to fall inside the third (contract-holding) category. As Goff J explained in the ''West Sussex'' case: Simon Gardner has argued that the principle behind such a conclusion is that the ticket purchaser was not at liberty to choose to transfer the money to be held on a purpose trust. There are situations where a contract enforced a payment on trust, such as ''Quistclose'' trusts and marriage settlements, that might be relevant to unincorporated associations. In particular, he suggests that an employer's obligation to pay into a pension pot, as occurred in ''Davis v Richards and Wallington'', for example, might fall into this category.Distribution of rights upon dissolution
An unincorporated association may dissolve for many reasons, including a decision by the members to wind it up or a court order. In addition, an association may sometimes dissolve spontaneously. One such case is where the purpose of the association becomes impossible to fulfil (e.g., if it was to raise funds for a school that goes out of existence). A second is when only one member remains: this follows from the association being a matter of contract, which by definition must be between at least two parties. The distribution of rights in such a case depends upon how those rights are determined to be held. If the purpose trust construction is preferred, then the dissolution of the association will not necessarily bring an end to the purpose trust, dependent upon whether the association is the "essential mechanism" of the purpose. If the purpose trust survives the winding up of the association, then new trustees may need to be appointed. The ''West Sussex'' case considered the effect of the association's dissolution on the rights held by the trust where the trust did indeed fail. In such a case, the monies paid to the association will ordinarily be held on''Bona vacantia''
Before the Hanchett Stamford case, it was suggested that the assets of an association that dissolves in certain circumstances would be '' bona vacantia''. However, this view rested only on '' obiter'' comments. In the case where the comments arose, the reason suggested was that at the time of dissolution, there were no remaining members, and therefore no one to own the assets. In ''Re Bucks'' it was shown that if there is only one member left then because there is no association, there is no question of membership. Therefore, in those circumstances, it would appear the property should go to the Crown. That conclusion, however, was contested by those who believed beneficial ownership by the last surviving member would be more appropriate. (It's possible there may still be cases where, as a result of the contractual obligations of the members, no member can claim the assets of the association upon dissolution and then also they will be ''bona vacantia''.) In the ''Bucks'' case it was suggested that a term indicating some method of distribution would be implied as a matter of course; in particular, Walton J attempted to bring ''Cunnack v Edwards'' and ''West Sussex'' within the proposed model of implied terms, rather than by distinguishing them. This approach was not taken in ''Davis v Richards and Wallington'' where Scott J did not discuss implied terms directly when holding that the rights were now ''bona vacantia''. This, Simon Gardner has noted, hints at a return to the 'eclectic', case by case, approach previously favoured by the courts. Instead, he says, judges should pursue a set of implied terms that differ according to the nature of the society (Libel
Lack of legal personality means an unincorporated association ordinarily has no standing to sue for libel.See also
* Associations in English law *References
Bibliography
* * * * * *External links
* https://www.gov.uk/unincorporated-associations * {{cite report , url=https://www.scotlawcom.gov.uk/files/3312/7989/7412/rep217.pdf , title=Report on unincorporated associations , isbn=9780108882395 , publisher=Scottish Law Commission , id=SLC 217 , date=November 2009 English trusts law