Commentary on Sections Part 1 – Trusts Sale of property
39.Section 21(10) provides that the trustees of a charitable trust are not under a duty to achieve the best value for heritable property (for example, housing) when selling to a charity, except to the extent that the trust deed expressly or impliedly provides otherwise (subsection (1)). A “charity” is defined in subsection (3) as an entity registered in the Scottish Charity Register (or the equivalent in England and Wales or Northern Ireland), enabling a purchasing charity registered elsewhere in the UK to rely on this provision. Subsection (2) serves as a reminder that when selling property under section 21 a charity trustee must still have regard to their statutory duties under charity legislation. For example, subsection (1) does not permit heritable property which is essential to delivering trust purposes to be sold. Subsections (4) and (5) confer on the Scottish Ministers the power to modify subsection (3) by regulations to specify other descriptions of a charity (for example, charities regulated in other countries in a similar manner to those in Scotland). Any regulations made under this section are subject to the affirmative procedure. Subsection (6) is a savings provision which applies section 21 only to charitable trusts created after the section comes into force. This section is without prejudice to any existing power to sell otherwise than for best value which may be available for existing trusts.