Graham Virgo: At first glance, it might seem rather odd to have a section
in a book on equity and trusts about unincorporated associations.
But actually, having unincorporated associations considered
in a book of equity and trusts is really important.
Because equity actually provides a solution to a really important problem
involving unincorporated associations.
And that is, how do these associations hold property?
Now, if we look at companies and corporations,
we can say that they hold property in a relatively straightforward way,
because companies and corporations have their own legal personality.
They are treated as people, and people can own property,
and therefore companies and corporations can hold and own property.
But unincorporated associations are different.
They don't have separate legal personality, but unincorporated associations—such as
an amateur sports club—do have property.
So, we have a problem.
How can an unincorporated association actually hold property?
And the answer is, equity and the law of trusts provides the solution.
As you’ll see in this section, the law has developed various constructions
that can be adopted relating to property holding by unincorporated associations.
The typical model is for an officer of the association to have legal title,
and then to hold that legal title of property on trust, for either people,
the members of the association, or purposes—particularly if the association
is a charity and has a charitable purpose.
Now, if we are looking at property holding using the trust for members,
you are going to see that different constructions could be adopted.
It could be for members at the time the properties obtained, or members
who become members subsequently, or—and this is actually now
the most common construction—for members at any particular time
by reference to the constitution of the unincorporated association.
Now, as you are going to see, different constructions
can be adopted in different contexts.
But it is important which construction is adopted.
Because actually, probably the most significant question—relating to property owning
by an unincorporated association—is what happens to that property
if the unincorporated association is dissolved.
Who gets the property?
And that will turn on which construction has been adopted.
So, think carefully, as you look through the law in this area,
as to which is the most appropriate construction to adopt
and whether, if the unincorporated association is dissolved, we reach a fair result on the facts.