An unincorporated association is a group of people in common law jurisdictions—such as the United Kingdom, Canada, and New Zealand—who organize around a shared purpose without forming a corporation or similar legal entity. Unlike in some civil law systems, where associations gain legal personality upon registration, these groups lack such status and arise from contract rather than (as in the case of companies) administrative fiat. They are distinct from unincorporated partnerships because their members do not unite for profit. Easy to form with minimal formalities, unincorporated associations offer flexibility but no separate legal identity.
These associations require a contractual relationship—without it, a casual group like friends meeting regularly does not qualify, no matter how often they gather. Under common law contract rules, they can even form unintentionally, as members may not realize their agreement creates an association. Often viewed as informal institutions, they aim for permanence and recognition apart from their individuals, spanning tiny groups (like an amateur football team splitting pitch costs) to vast organizations (like co-operatives, trade unions, or professional associations with thousands of members).
Definition Whether or not a group of people is an unincorporated association is not always clear. A summary definition is a group of people gathered for a common purpose but not for profit intending to create a legally binding relationship between themselves.
There is no statutory definition of an unincorporated association, so it has fallen to judges to define them. In the leading case in England and Wales, Conservative and Unionist Central Office v Burrell EWCA Civ 2, Lord Justice Lawton defined an unincorporated association as:
The essential elements are thus (i) that there exist members of the association; (ii) that there is a contract binding them inter se (i.e., among themselves, to the exclusion of outsiders); (iii) that they have a common purpose which is not business; and that (iv) there must have been a moment in time when a number of persons came together to form the association (although those persons need not be the present members).
"Unincorporated" "Unincorporated" indicates that the association is not a legal person: it has no rights or duties in itself, and cannot acquire any. If, say, the group of people wants to enter into a contract to hire a football pitch (with the right to use it and the duty to pay for it), then the association cannot do this but must appoint someone (usually one or more of the members) to act on their behalf.
Similarly, an unincorporated association cannot own property (even its own funds): the members must appoint someone, usually a treasurer or small committee, who will hold the property as a trustee.
Special cases In some instances statute intervenes to allow an unincorporated association to be treated as if it has legal personality, without actually conferring legal personality upon it: for example, in the UK, a trade union.
The UK also taxes an unincorporated association as if it were a company, without reference to the tax status of its members – despite the fact that those members are, in a strict legal sense, the only relevant persons.
Legal basis The characteristics of an unincorporated association in common law jurisdictions arise almost exclusively from case law, rather than from legislation.
Their legal basis is the general law of contract (including contracts of agency), which governs the agreements the members make with each other. Unincorporated associations are therefore entirely private concerns.
Structure and governance Constitution Of the essence of an unincorporated association is that every member has entered into legal relations with every other, i.e., by a contract "inter se". Generally this is by subscribing to a written constitution.
Objects or purposes Likewise of the essence is that the association has one or more purposes, and these are usually given at the head of the constitution. If it is impossible to bring an association's purposes into effect (e.g., where an association is formed to raise funds for a school which later goes out of existence), the association automatically dissolves. This derives from the rules surrounding frustration of contract. (For similar reasons, an association with only one object cannot amend it.)
Members The membership is the sovereign body in the organisation, as it is from their consent to enter into the contract inter se that the association exists at all. Their powers should be clearly set out in the constitution. Often these are limited to: Appointing a committee to act on the association's behalf (usually by ballot but not always: it may be by consensus) Removing the committee in cases of mismanagement Approving the accounts and annual report of the committee Exercising a 'reserve power' to require the committee to do or not to do something Amending the constitution
Committee As an unincorporated association is not a person, it cannot legally do anything. The members usually entrust ("commit") the funds and management of the association to a committee, who act on the association's behalf. (In a tiny association this may not hold: there may be a one-person "committee", or there may be no committee and all members are equally authorised to act for the group.)
The powers of the committee should be clearly set out in the constitution. If the association has no constitution, in the event of a dispute the Court will look to any general rules that the association has enacted and, as necessary, to principles of the general law. The committee are trustees for the members, and have a fiduciary duty towards them.
The chair There is usually a chairperson, or simply "chair", who presides over meetings both of the committee and of the members. In practice many chairs are forceful individuals, but in law their responsibility is to act as an impartial umpire. Chairs may have other powers: again, these should be clearly set out in the constitution.
Other officers Often a treasurer is appointed who is responsible for overseeing the funds of the association. Often there is a secretary who ensures all the rules of the association are duly followed.
Liability Because the association has no legal personality, outsiders face the challenge that it cannot be made liable for anything. If a sports centre hires a pitch to "Smalltown Soccer Stars", and the fees go unpaid, the agreement may be unenforceable. However, the sports centre can look for the person who actually booked the pitch and try to recover the unpaid fees from that person, or if they can establish that said person made the booking with the authority of the whole team (or of a committee) then the people authorising the bookings are collectively liable. The question turns on the general law of agency.
Once liability of one or more persons is established, their liability is unlimited.
Legal difficulties Legal difficulties arise from the fact that, while an association has no independent personality in law, it most certainly does have an independent existence for all practical purposes: members join it, leave it, and complain about how their association treats them; it probably has its own website, premises and bank account, and (in the UK) is liable to pay its own tax. Most significantly, people give it money as if it were an entity in its own right. In short, the legal underpinning is at odds with how people actually think and behave, and judges (and occasionally Parliament) have at various times tried to square the law with the social reality.
Whilst an unincorporated association cannot hold property itself, in the strict legal sense, there are mechanisms that are used to achieve the same effect.
Nature of held rights There have been several theories proposed as to how rights, such as ownership of assets, are held by voluntary associations. In the UK, the question has been substantially settled by Hanchett-Stamford's case. The decision has persuasive force in other common law jurisdictions.
Joint tenancy The oldest theory is that rights transferred to a voluntary association are held by the current members of the association as joint tenants or tenants in common. This has the result that the member can receive his or her own share (allowing for severance in the case of joint tenants) irrespective of the other members, in the same way that a joint owner of a business can do so. In Bowman v Secular Society this construction was even applied to a gift given to be applied for the general purposes of the association. It is difficult to imagine, however, that this construction would be correctly applied in the case of a philanthropic society, where construing the gift as one to the members would contradict its stated purpose. There is also the possibility that the gift is to the current and future members of the society, which, by operation of the Perpetuities and Accumulations Act 1964, will operate for the benefit of those members within the perpetuity period.
On trust for the purposes of the association The second alternative is that the gift is to the trustees, or those officers who might properly be considered trustees, to be held on trust for the purposes of the association in a private purpose trust. Purpose trusts are not permitted in English law (with the exception of charitable trusts, which exempts charitable unincorporated associations from many of these difficulties), so any such gifts will fail for want of a beneficiary capable of enforcing the terms of the trust. However, the decision in Re Denley's Trust Deed allows for some trusts of this type to be held valid, and, accordingly, the case of Re West Sussex Constabulary's Widows, Children and Benevolent (1930) Fund Trusts applied this construction to the rights held by an unincorporated association. Reform to purpose trusts, such as making such a trust enforceable by a named individual (the chairman or treasurer, for example) rather than by a beneficiary (of which there may be none), would impact the role of the purpose trust in the voluntary association context.
Contract-holding The third alternative is that members hold the property as beneficial owners, but are bound by their contracts inter se as to their ability to take out their share. That share is considered to pass to the other members of the association upon the death or resignation of the member. The holding may then either be considered absolute, or on trust for the membership as a whole, but it is the role of contract in each case to determine the rights of members, including the officers, to apply the money.
This approach was favoured in Re Recher's Will Trusts in relation to a gift to the Anti-Vivisection Society, although, on the facts, that society was considered no longer in existence and the gift failed for this reason. One statement of when such an absolute gift will be considered to have been made was given in Re Lipinski's Will Trusts:
Another statement of the principle came in , where Lewison J stated:
This "contract-holding" theory is now considered the dominant theory in the field.
In practice The question of which construction applies to a particular transfer must be ascertained in any particular case. A donor could decide on what basis he or she was transferring the rights to the association; however, this is rarely considered by donors and thus which construction applies is often affected by the judge's own beliefs as to common practice.
Sometimes the situation is clear: monies paid pursuant to a contract, such as raffle tickets and members' subscriptions, are normally taken to fall inside the third (contract-holding) category. As Goff J explained in the West Sussex case: