The Commonhold (Amendment) Regulations 2009

Made: 27th August 2009

Laid before Parliament: 3rd September 2009

Coming into force: 1st October 2009

The Lord Chancellor, in exercise of the powers conferred upon him by sections 13(4) and (6), 31(2), 32 and 64 of, and paragraphs 2 and 16 of Schedule 3 to, the Commonhold and Leasehold Reform Act 2002[^f00001], makes the following Regulations:

Citation and commencement

1

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

Amendments to the Commonhold Regulations 2004

2

The Commonhold Regulations 2004[^f00002] are amended in accordance with the following regulations.

3

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

4

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

• (a) in paragraph (1)—

• (i) for “Companies Act 1985”, substitute “Companies Act 2006[^f00003]”; 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.”

5

Omit regulation 13 (memorandum of association).

6

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”.

7

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”.

8

Omit Schedule 1 (memorandum of association).

9

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

10

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;

; and

• (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”.

SCHEDULE

Signed

Signed on the authority of the Lord Chancellor

Bridget Prentice — Parliamentary Under Secretary of State — Ministry of Justice — 27th August 2009

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations amend the Commonhold Regulations 2004 (SI 2004/1829) (“the 2004 Regulations”) in consequence of the coming into force on 1st October 2009 of the company law provisions of the Companies Act 2006 (“the 2006 Act”), which consolidates and amends general company law, and of the consequential amendments prospectively made to Part 1 (Commonhold) of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) by the Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (SI 2009/1941). Of particular relevance to commonhold associations, which are private companies limited by guarantee, are the changed roles of the memorandum of association and of the articles of association. From 1st October 2009, the memorandum will be restricted to providing evidence of the intention of each subscriber to form a company and become a member of the company; while the company’s articles alone will contain its internal rules, including any objects.

These Regulations make consequential changes to the 2004 Regulations, for example, changing references to “memorandum” or “memorandum or articles” to “articles”; deleting Schedule 1 (Memorandum of association); and substituting new prescribed articles for commonhold associations in Schedule 2 (Articles of association of a commonhold association) which cover constitutional issues (company name; location of registered office; objects; liability of members) dealt with by the old style memorandum. The new prescribed articles also reflect other changes to general company law made by the 2006 Act. For example, the 2006 Act deals comprehensively with convening meetings, notice of meetings and directors’ interests; thus articles dealing with these topics have been removed from the new prescribed commonhold articles. The enhanced importance for private companies of the written resolution procedure is reflected in a number of amendments to the articles. There are also minor consequential changes in relation to, for example, proxy notices, the number of directors, the company secretary, and the keeping of the commonhold association’s written records which fall within the purview of the 2006 Act.

Footnotes

[^f00001]: 2002, c.15, to which relevant amendments are made, with effect from 1st October 2009, by SI 2009/1941, article 2(1) and Schedule 1, paragraphs 194 and 195.

[^f00002]: S.I. 2004/1829, amended by SI 2007/1898, article 6 and Schedule 1, paragraph 35.

[^f00003]: 2006, c.46.