Part 5: Charity Mergers Section 34: Vesting declarations: exclusions
Section 34 amends the types of property listed at section 310(3) of the CA 2011 as being excluded from the transfer effected by a section 310 vesting declaration. Sub-paragraph (a) removes the first exclusion under section 310(3) which appeared to refer to old (pre-1925) mortgages, which took effect by the borrower conveying the land to the lender. As mortgages are no longer granted in this way, the provision no longer served any purpose.
	Sub-paragraph (b) expressly excludes leases containing an absolute covenant against assignment (as well as leases containing a qualified covenant against assignment) from being transferred by a section 310 vesting declaration. However, the requirement that the assignment would have given rise to "an actionable breach" is intended to exclude situations where the person with the benefit of the covenant (whether absolute or qualified) has consented to the assignment, agreed to release the covenant, or otherwise waived their right to enforce it.