COLL 15.3 Constitution

1

Description of the authorised fund

Information detailing:

(1)

the name of the authorised fund;

(2)

that the authorised fund is a long-term asset fund;

(3)

in the case of an ICVC, whether the head office of the company is situated in England and Wales, Wales, Scotland or Northern Ireland.

2

Property Authorised Investment Funds

For a property authorised investment fund, a statement that:

(1)

it is a property authorised investment fund;

(2)

no body corporate may seek to obtain or intentionally maintain a holding of more than 10% of the net asset value of the scheme; and

(3)

in the event that the authorised fund manager reasonably considers that a body corporate holds more than 10% of the net asset value of the scheme, the authorised fund manager is entitled to delay any redemption or cancellation of units in accordance with 8 if the authorised fund manager reasonably considers such action to be:

(a)

necessary in order to enable an orderly reduction of the holding to below 10%; and

(b)

in the interests of the unitholders as a whole.

3

Constitution

The following statements:

(1)

the scheme property of the scheme is entrusted to a depositary for safekeeping (subject to any exception permitted by the rules);

(2)

if relevant, the duration of the scheme is limited and, if so, for how long;

(3)

charges and expenses of the scheme may be taken out of scheme property;

(4)

for an ICVC:

(a)

what the maximum and minimum sizes of the scheme’s capital are; and

(b)

the unitholders are not liable for the debts of the company;

(5)

for an ICVC which is an umbrella, a statement that the assets of a sub-fund belong exclusively to that sub-fund and shall not be used to discharge directly or indirectly the liabilities of, or claims against, any other person or body, including the umbrella, or any other sub-fund, and shall not be available for any such purpose;

(6)

for a co-ownership scheme which is an umbrella, the property subject to a sub-fund is beneficially owned by the participants in that sub-fund as tenants in common (or, in Scotland, is the common property of the participants in that sub-fund) and must not be used to discharge any liabilities of, or meet any claims against, any person other than the participants in that sub-fund;

(7)

for a limited partnership scheme, that the scheme prohibits pooling as is mentioned in section 235(3)(a) of the Act in relation to separate parts of the scheme property, with the effect that the scheme cannot be an umbrella;

(8)

for an AUT:

(a)

the trust deed:

(i)

is made under and governed by the law of England and Wales, or the law of Scotland or the law of Northern Ireland;

(ii)

is binding on each unitholder as if that person had been a party to it, and that the unitholder is bound by its provisions; and

(iii)

authorises and requires the trustee and the manager to do the things required or permitted of them by its terms;

(b)

subject to the provisions of the trust deed and all the rules made under section 247 of the Act (Trust scheme rules):

(i)

the scheme property (other than sums held to the credit of the distribution account) is held by the trustee on trust for the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of individual shares in the scheme property represented by the units held by each unitholder; and

(ii)

the sums standing to the credit of any distribution account are held by the trustee on trust to distribute or apply them in accordance with COLL 15.8.18R (Income);

(c)

a unitholder is not liable to make any further payment after having paid the price of the units held, and that no further liability can be imposed on the unitholder in respect of those units; and

(d)

payments to the trustee by way of remuneration are authorised to be paid (in whole or in part) out of the scheme property; and

(9)

for an ACS:

(a)

the contractual scheme deed:

(i)

is made under and governed by the law of England and Wales, or the law of Scotland or the law of Northern Ireland;

(ii)

is binding on each unitholder as if that person had been a party to it, and that the unitholder is bound by its provisions;

(iii)

authorises and requires the depositary and the authorised contractual scheme manager to do the things required or permitted of them by its terms; and

(iv)

states that units may not be issued to a person other than a person:

(A)

who is a:

(i)

professional ACS investor; or

(ii)

large ACS investor; or

(iii)

person who already holds units in the scheme; and

(B)

to whom units in a long-term asset fund may be promoted without contravening the rules in COBS 4.12A (Promotion of restricted mass market investments)3;

(v)

states that the authorised contractual scheme manager of an ACS must redeem units as soon as practicable after becoming aware that those units are vested in anyone (whether as a result of subscription or transfer of units) other than a person meeting the criteria in (iv)(A) and (B);

(vi)

states that for a co-ownership scheme:

(A)

the scheme property is beneficially owned by the participants as tenants in common (or, in Scotland, is the common property of the participants);

(B)

the arrangements constituting the scheme are intended to constitute a co-ownership scheme as defined in section 235A(2) of the Act; and

(C)

the operator and depositary are required to wind up the scheme if directed to do so by the FCA in exercise of its power under section 261X (Directions) of the Act;

(vii)

states:

(A)

whether the transfer of units in the ACS scheme or, for a co-ownership scheme which is an umbrella (sub-funds of which pursue differing policies in relation to transfer of units), in each particular sub-fund, is either:

(i)

prohibited; or

(ii)

allowed;

(B)

where a transfer of units is allowed by the scheme or, where appropriate the sub-fund, in accordance with (A)(ii), units may only be transferred in accordance with the conditions specified by FCA rules, including that units may not be transferred to a person other than a person:

(i)

who is a:

(1)

professional ACS investor; or

(2)

large ACS investor; or

(3)

person who already holds units in the scheme; and

(ii)

to whom units in a long-term asset fund may be promoted without contravening the rules in COBS 4.12A (Promotion of restricted mass market investments)3; and

(viii)3

states that for a limited partnership scheme, the scheme is not dissolved on any person ceasing to be a limited partner or nominated partner provided that there remains at least one limited partner;

(b)

subject to the provisions of the contractual scheme deed and all the rules made under section 261I of the Act (Contractual scheme rules) and for the time being in force:

(i)

the scheme property (other than sums standing to the credit of the distribution account) is held by, or to the order of, the depositary for and on behalf of the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of individual shares in the scheme property represented by the units held by each unitholder; and

(ii)

the sums standing to the credit of any distribution account are held by the depositary to distribute or apply them in accordance with COLL 15.8.18R (Income); and

(c)

a unitholder in a co-ownership scheme is not liable to make any further payment after having paid the price of the units held, and that no further liability can be imposed on the unitholder in respect of those units;

(d)

a unitholder in a limited partnership scheme is not liable for the debts or obligations of the limited partnership scheme beyond the amount of the scheme property which is available to the authorised contractual scheme manager to meet such debts or obligations, provided that the unitholder does not take part in the management of the partnership business;

(e)

the exercise of rights conferred on limited partners by FCA rules does not constitute taking part in the management of the partnership business;

(f)

the limited partners, other than the nominated partner, are to be the participants in the scheme; and

(g)

the operator of a co-ownership scheme is authorised to:

(i)

acquire, manage and dispose of the scheme property; and

(ii)

enter into contracts which are binding on unitholders for the purposes of, or in connection with, the acquisition, management or disposal of scheme property.

4

Investment objectives

A statement of the object of the scheme, in particular the types of investments and assets in which it and each sub-fund (where applicable) may invest and that the object of the scheme is to invest in property of that kind with the aim of spreading investment risk.

5

Units in the scheme

A statement of:

(1)

the classes of units which the scheme may issue, indicating, for a scheme which is an umbrella, which class or classes may be issued in respect of each sub-fund; and

(2)

the rights attaching to units of each class (including any provisions for the expression in two denominations of such rights).

6

Limitation on issue of and redemption of units

(1)

Details as to:

(a)

the provisions relating to any restrictions on the right to redeem units in any class; and

(b)

the circumstances in which the issue of the units of any particular class may be limited.

(2)

A statement setting out the dealing frequency for sales and redemptions of units in the scheme, and the applicable notice period for redemptions.

3(3)

Where COLL 15.1.3R(4) (Long-term asset funds: eligible investors) applies, a statement that the authorised fund manager must take reasonable care to ensure that ownership of units in the scheme or a relevant class is recorded in the register only for a person who is a limited protection LTAF investor.

7

Income and distribution

Details of the person responsible for the calculation, transfer, allocation and distribution of income for any class of unit in issue during the accounting period.

8

Redemption or cancellation of units on breach of law or rules

A statement that where any holding of units by a unitholder is (or is reasonably considered by the authorised fund manager to be) an infringement of any law, governmental regulation or rule, those units must be redeemed or cancelled.

9

Base currency

A statement of the base currency of the scheme.

10

Meetings

Details of the procedures for the convening of meetings and the procedures relating to resolutions, voting and the voting rights for unitholders.

11

Powers and duties of the authorised fund manager and depositary

Where relevant, details of any function to be undertaken by the authorised fund manager and depositary which the rules in COLL require to be stated in the instrument constituting the fund.

12

Termination and suspension

Details of:

(1)

the grounds under which the authorised fund manager may initiate a suspension of the scheme and any associated procedures; and

(2)

the methodology for determining the rights of unitholders to participate in the scheme property on winding up.

13

Investment in overseas property through an intermediate holding vehicle

If investment in an overseas immovable is to be made through an intermediate holding vehicle or a series of intermediate holding vehicles, a statement that the purpose of that intermediate holding vehicle or series of intermediate holding vehicles will be to enable the holding of overseas immovables by the scheme.

14

Other relevant matters

Details of those matters which enable the scheme, authorised fund manager or depositary to obtain any privilege or power conferred by the rules in COLL which is not otherwise provided for in the instrument constituting the fund.