Official Report 281KB pdf
If I may now move on, let me properly introduce my Welsh choir. Before doing so, I must first formally welcome Scott Wortley. As the committee's adviser on the bill, this man is dreadfully needed and is providing us with detailed and expert information.
I was not going to say anything at this point. I will leave it to Mr English.
The RICS is an organisation that represents people who are involved in property-related professions. We are therefore directly involved with all matters that relate to making property work. We are interested in the bill because we want to influence, if we can, those parts of it that we believe may not be practical. That said, we very much support the general thrust of the proposals. Our criticisms tend to be on matters of technical detail.
We shall come to such matters further down the line. Let us move on—sorry, but I am having difficulty in reading your name-plate—to Mr Watt.
The Property Managers Association represents the majority of professional property managers in Scotland. Its members are responsible for the management mainly of owner-occupied housing units. Our members currently have about 100,000 units under management. The association strongly supports the general thrust of the Title Conditions (Scotland) Bill. As property managers, we are in close touch with the bill's end-users, who are the house owners, in whom we obviously have a close interest.
I represent house builders in Scotland. We have two interests in the bill. We take title to land for development purposes, so we are glad to see that obstructions and unnecessary burdens in title might be disposed of. We also give title to purchasers under a deed of conditions. Although we want to provide high-amenity developments, we do not wish to be either managers or some sort of neighbour-protection unit. We therefore generally welcome the bill.
As I recall, Homes for Scotland and many of the other organisations have submitted papers, which were very helpful. Perhaps I could ask Mr Smart to speak next. Is it Mr Smart? This is a test for my eyesight.
Perhaps I can answer on John Smart's behalf, because we are as one on this matter. John Smart and I are property lawyers.
Sorry. I got who was partner and who was associate the wrong way round. My apologies for an embarrassing mistake.
We are a democratic firm. John and I—the fact that there are two Johns is perhaps confusing—are property lawyers. We normally act for builders and developers of residential and commercial developments, in particular on the acquisition side. We advise a number of the members of Homes for Scotland, which has retained us as an entity to help it in its responses to the bill. Speaking as an adviser to Homes for Scotland and also as a property lawyer, I congratulate the Executive on a particularly fine piece of legislation.
Mr Gill wishes to add something.
I merely want to add that Ledingham Chalmers Solicitors acts as legal representatives for Homes for Scotland. Many of the questions about the bill are detailed, so the duo of the two Johns will answer for us.
We are a bit like that ourselves. Thank you all very much. I want to move on to the next question. Who is going to ask it? Sorry. It is still me. I have a cold and am not functioning properly.
I will speak first on behalf of Homes for Scotland.
Mr Curran—
No, I am Mr Smart.
I have you and Mr Curran the wrong way round on my bit of paper. I am sorry.
Homes for Scotland's general view is that burdens should be enforced only by the owners of properties, not by short-term tenants. The absent owner has paid the value for the property and should be the one who has the right to enforce the burden, not the tenant, unless the owner specifically agrees that the tenant can enforce it on his behalf.
Does anyone on the panel disagree with that view?
The RICS is concerned at the potential for conflict of interest where the interest of an owner in enforcing a burden may differ from that of a tenant in occupation. It is difficult to envisage a situation in which such a conflict may arise, but we are of the belief that the right of ownership should be the dominant interest. We do not have a view on a number of the other potential interests that arise in the bill.
As I understand it, the non-owner would have a right only to enforce a burden that is already there, not to discharge. The possibility of varying a burden or undermining the proprietor of the title does not arise.
We are aware that the proposal is purely on the right of enforcement and not to extend the right to discharge. We are merely expressing a concern that a situation may arise in which there is a potential conflict of interest, where an owner may not wish to enforce a burden but the tenant in occupation may do so.
Can someone give me an example of that in layman's terms, rather than leaving it up in the air?
I am afraid not.
Does anyone on the panel have an example in which they feel that a conflict of interest would arise if a tenant wished to enforce a burden? If you can say where a proposal would not be appropriate, that is what helps the committee.
Situations could exist in which the owner of premises had a relationship with an adjoining proprietor that meant that the owner was happy—and had been so for a long period—for the adjoining proprietor to be, in effect, in breach of a burden. A tenant who came in for a relatively short space of time may wish to enforce a burden that the proprietor had not enforced. That could create a conflict.
I see where your argument on short tenancies is going, but what about a long lease? Somebody who is in the property over 20 or so years during which the proprietor is never there would have every reason to enforce a burden. John Smart and John W Curran are nodding. Is that a route?
I can envisage that the bill might increase the incidence of long leasehold. On potential conflicts, it is not unknown for landlords and tenants to be in dispute over rental, for example. One must assume bad faith in this example, but it is not inconceivable that a tenant might chose to enforce a community burden or something of that nature in pure defiance of the owner's—the landlord's—wishes. However, that is the only conflict example of which I can think. I certainly think that, under some of the longer leases that I envisage, a tenant will have the equivalent to owner's rights.
As no one else wants to speak, I will leave that issue. We will consider it further when we can, because I believe that there are problems involved. The rights for long leases are attractive in terms of providing balance.
Section 28 of the bill provides that a majority of proprietors can instruct common maintenance work. I would like your views on that section because, as you are probably aware if you considered the evidence from last week, there seems to be anxiety that it is unduly bureaucratic.
The Property Managers Association agrees whole-heartedly with the majority instruction. It happens daily in modern developments with deeds of condition that work perfectly well. We believe that there is an accepted principle that is perfectly satisfactory.
Have you had a chance to reflect on the views given by the Law Society of Scotland in last week's evidence?
No.
I see that your colleagues, however, are nodding affirmatively. Would you concur with the Law Society's concerns?
Homes for Scotland generally welcomes section 28 and supports the concept of majority instruction for maintenance but not for discharge or variation, which are separate matters. We recognise that the present law is unsatisfactory, as a unanimous instruction for maintenance repairs is usually needed.
We do not agree with the Law Society's submission that section 28 is unduly complicated, but I would ask that you do not tell the Law Society that the partner and associate in Ledingham Chalmers take that view.
The Law Society is probably watching the meeting on webcam.
I hope that it gets us confused.
The RICS agrees with the introduction of the majority rule for maintenance, but we feel that the proposals in section 28 for administering it are too detailed and difficult.
Can you perhaps go through the parts of section 28 that you are particularly concerned about?
The provisions in section 28 for setting up and funding a job give us real cause for concern, particularly given the delays that can be involved. I agree whole-heartedly with the Law Society's view that section 28 is too complex. Management currently deal with large numbers of small jobs. The system proposed under section 28 would be potentially workable for a large refurbishment job for a major contract that naturally has a long lead-in time. However, in practice in property management, our members find it necessary to collect moneys in advance for jobs that cost only a few hundred pounds. From that point of view, section 28 is unduly burdensome. The 28-day cooling-off period would require an owner to pay 28 days after the account goes out.
Your written submission—I refer members to paper J1/02/29/03—helpfully suggests that such procedures should apply only to jobs that would cost more than £3,000.
I appreciate that putting a figure into the bill may cause difficulties over a period of time, but some kind of limit on the costs and severity of the project is required.
There is a balance to be struck. Owners will want to be able to ensure that, if a manager undertakes to do something, it will get done. I quite like the 14-day rule because, without such a provision, if a manager is not managing the issue properly, the issue could go on and on before it is properly sorted out. I quite like the idea because, once someone has given their money for the deposit, that 14-day period should help to move things along.
Mr Matheson may have fallen into the trap of thinking that the manager is the one who creates the delay. From the relatively brief résumé that I have given, it can be seen where the delay arises. If everyone paid when they were asked to pay, there would be no inordinate delays. The person who pays his money within the 14 days would have a problem if we still had to wait for two or three months before we received the money from the last two or three owners.
In the experience of you and your colleagues, are the vast majority of community burdens and maintenance work for jobs that involve only a couple of hundred pounds?
Yes. It is fair to say that the majority of cases are minor maintenance works such as roof works, although they extend to the other end of the scale and can include re-roofing. However, the problems are no less at either end of the scale. It takes only one owner to bring the whole thing to a halt.
My question centres on community burdens and their discharge by adjacent proprietors, which is dealt with in sections 34, 35 and 36 of the bill. The bill provides that, subject to a notification procedure, community burdens can be discharged by adjacent proprietors, who are defined as those within 4m of the burdened property. The witnesses may have a range of views on that method of discharge. Is 4m an appropriate distance?
I will answer on behalf of Homes for Scotland. We have concerns about the 4m rule, because it is somewhat arbitrary and fails to provide adequate protection to benefited proprietors outwith the 4m radius. Moreover, there is the risk that a minority group of neighbours in a community will prejudice the wishes of the majority. Although we recognise that the need to obtain the consent of the majority can cause difficulties, we firmly believe that all benefited proprietors should have the same rights as those within the 4m radius. That is particularly important for protecting the general amenity of housing developments. For example, a house that stands at the very entrance of a development could ruin the visual impact of the estate as a whole, including properties that are well outside the 4m radius. We are concerned about such cases. When we frame deeds of conditions for developments, all benefited proprietors—not just those within the 4m radius—expect to be able to enforce them.
In that case, would you prefer to abolish any 4m, 10m, 100m or whatever rule and instead have a system of majority voting?
That is our view.
However, any specific provision within the deed would mean that those burdens would not apply.
Such a provision overrides most of what the bill says about community burdens. We can always vary things by referring to different provisions in the title deeds.
The 4m rule has some merit. However, our concern is that, although the majority could make decisions, those people might be at the far end of the housing estate and not have much of an interest in any changes. The Property Managers Association of Scotland felt that 4m was not enough and arbitrarily came up with the figure of 15m. Before we came into the meeting, we talked about the difficulty of giving any reasons for that figure, other than that 4m was just too small. However, we found merit in allowing the majority to decide, as long as one member of that majority lived within a reasonable distance of the burdened property.
When the RICS examined the issue, it tried to work out whether some appropriate distance could be applied and concluded that there was no such distance. Given that the average width of a feu in an average housing estate might be 10m or less, a 4m radius will not take into account the house next door to the house next door, which is still very close.
What is your opinion of the other methods of discharge? We have dealt with the 4m rule. What about discharge by majority voting? Are you happy with a simple majority?
Homes for Scotland has reservations about a simple majority varying or discharging community burdens. I return to the point that house builders insert amenity restrictions on individual houses to protect the marketability of other houses. Individuals also pay high prices for the houses that they buy, partly because they are secure in the knowledge that they can enforce restrictions against their neighbours.
The presumption would be that they had agreed to the conditions when they bought the house, so you feel that, even with the notification procedure that the bill suggests, a discharge by simple majority would be unfair.
Absolutely. There should also be an exception for community burdens that import the provisions of planning conditions or section 75 agreements that have been entered into with the planning authority. Planning authorities often impose obligations to maintain amenity areas when planning consents are granted for development. Those would remain in force, notwithstanding any decision the majority might make to vary or discharge the title condition that imports that planning condition. We would be left with an inconsistency if a section 75 planning agreement that was still enforceable could be varied or discharged by a majority.
I concur with the idea of 75 per cent majority consent. It is clear that burdens are put into deeds for a purpose. Although we accept that the majority principle is acceptable for the maintenance of burdens, we feel that discharging burdens is something quite different. The "Report on Real Burdens" indicated that 72 per cent of homeowners thought that title conditions were a good idea and went on to say, as the RICS has stated, that that ensured that residential areas retained their character. Property managers would be concerned that a simple majority could erode that.
As the committee can see from our submission, the RICS also came up with a figure of 75 per cent. In my business experience, we have only once succeeded in amending a deed of conditions, because under the previous system, as the committee is aware, the agreement of 100 per cent of a community was required. Clearly, that is impractical, because it is almost impossible to get that level of agreement. I cannot say that it is impossible, because it happened once. At the same time, we are dealing with something important. If it is worth removing burdens and changing titles, a substantial majority should be in favour. That is why we opted for a 75 per cent majority consent.
Do you foresee a rush of people wanting to change their discharge or vary their conditions?
People who want to keep dogs will probably want to change them. Dogs and children are the bane of property management.
I suppose you might have a burden that did not allow you to keep children.
I have not come across that one before, but I am sure there is one somewhere
However, you can foresee problems. You think that there might be communities that would split down the middle.
If you require a 75 per cent majority, it cannot be split down the middle and that is the big advantage.
That is what I am saying. If there was a 75 per cent majority, you could be fairly certain that the community was substantially in agreement.
The size of housing developments varies. Some housing developments that I have dealt with have comprised as few as four houses. That is the minimum requirement for a community burden. Larger estates could contain in excess of 50 houses.
The RICS also supports the view that the community has to comprise those properties or proprietors who hold their properties under a common deed of conditions or common title. Such a community is quite clearly defined.
In other words, it should have been split up into manageable units that felt a sense of community towards one another.
Yes, or rather a practical community and not just an area with a sense of community. I cannot speak from the point of view of the social community. I am looking at the management community.
But if people can see the piece of grass that needs to be cut or whatever needs to be mended, they might be agreeable. They will not be so keen to pay out money for something that they never see or that they do not know about. That is human nature, I would have thought.
Why did the Scottish Law Commission reject the suggestion of a three-quarters majority? Did you make submissions to the Scottish Law Commission about the majority ruling, which you are now saying should be three-quarters? The Scottish Executive has taken up the Scottish Law Commission's recommendation.
It is quite simple for me to respond on behalf of Homes for Scotland, because it did not exist when the consultation papers came out. It came into being in September last year.
Is the RICS of a like view? Did you make a submission in favour of 75 per cent?
I think that we did. [Interruption.] I am sorry—the papers are fairly bulky, as I am sure you are aware. We opted for 75 per cent because—
If you made such a submission, were you told why the Scottish Law Commission did not accept your views? Do you get that information, or do you simply find out afterwards what has been decided?
We wait to find out what comes out of the consultation.
I was trying to find a shortcut.
I will turn to the model development management scheme. What are the witnesses' views of the scheme that has been proposed by the Scottish Law Commission? Do you support the inclusion of the scheme in the bill, assuming that a solution can be found to the problem that it partially concerns a matter that is reserved to Westminster? At this stage, we are simply looking for your in-principle reaction to the scheme.
I will answer on behalf of Homes for Scotland, which was disappointed that the model management scheme was not included in the bill as introduced. The organisation thinks that the scheme would be worth while, although it is possible to overstate the need for it at this stage. The scheme would be useful in regulating what I describe as complex facilities, such as health clubs and swimming pools, although I do not think that it would be needed for grass cutting on common amenity areas. Complex facilities will become more common in developments, and the model management scheme would definitely benefit developers in such circumstances.
One of the papers says that we might be led by the American precedent of building swimming pools and leisure facilities in developments. We are making legislation that will last for decades, if not centuries, and we hope that the Executive will resolve those problems.
As more high-density urban development is undertaken, the concepts of concierges for common areas and common facilities within buildings are coming through in developments. If we had a consistent model that we could apply to such developments, customers, developers and management companies would know where they stood. It would be helpful to include the scheme in the bill.
I have no doubt that we will address that point when we take evidence later on.
The model scheme is a fallback position, but the Property Managers Association supports its principles. It is fair to say that the principles are already in place in most modern deeds of conditions in residential developments. The imposition of a development management scheme in its present form will undoubtedly increase owners' costs in respect of the management service provided by the property managers and the additional administration that the scheme calls for. The downside of the scheme is that it will have a knock-on effect on owners.
Is the manager burden created in the bill sufficient for your purposes?
As far as we are concerned, the manager burden provisions are sufficient. We recognise that feudal abolition will take away the potential right that developers had to enforce conditions expressed feudally over developments. Manager burdens represent a suitable replacement. We are also happy with the 10-year period. The time frame is sufficient.
What are your views on the provisions relating to manager burdens? In particular, a manager burden will, in many cases, be extinguished after a maximum of 10 years, even if a developer continues to own some units. Is that an appropriate time period?
Yes. As I said, the 10-year period is sufficient. Most housing developments would be sold off within 10 years and we recognise that there must be a time scale.
Does anyone else want to answer before Lord James rattles through his questions?
That was quick. In fact, I had a comment to make on a previous matter, but that seems to have gone by.
If you have comments on a previous matter, please make them.
I have comments on the development management scheme. The RICS supports the principle of the development management scheme, but we have on-going concerns about what is in the draft bill. Much of it tends to be detail. We have concerns about the quorum and the fact that, once the first meeting is called and the quorum is not achieved, the next meeting has a quorum of one, in effect. That could lead to considerable difficulties, whereby an estate could be run by a small coterie of people.
I have another question on manager burdens.
You are raising practical issues, which is helpful.
Manager burdens can exist for a maximum of 30 years—not 10—when they are imposed in a sale under the right-to-buy legislation for council houses, or in a sale by a local authority to its tenant. Is there merit in making special provision for manager burdens in that kind of situation? Are there other situations for which a longer period might be beneficial?
The RICS sees a justification for having a longer period for sales by the public sector, which includes local authorities and perhaps even housing associations. Such sales tend to happen over a prolonged period; it takes much longer before there is a majority of owner-occupiers. Private developers tend to look to the next development, which means that sales take place over a shorter period. That is why we support the differential.
Homes for Scotland has no view on the matter.
I am intrigued by the concept of terminators, which seems to refer to "Star Trek" or something. I have a question about termination and the sunset rule. I understand that there are differences of opinion about whether 100 years, 50 years or some other period is correct. Is the sunset rule a good idea? What should be the period before which the rule cannot operate?
Homes for Scotland supports the sunset rule in principle. Too many obsolete real burdens are kicking around that are of no practical relevance today. Such burdens can severely hamper developers who want to purchase sites for housing development. The bill suggests a period of 100 years, but we think that 50 years would be more appropriate. Burdens can easily become irrelevant in 50 years.
The Property Managers Association has no view on the sunset rule. We find acceptable the two-thirds majority that is required to terminate or dismiss a manager.
Does the RICS wish to talk about the sunset rule?
You will be glad to hear that my answer is no. We support the 100-year cut-off point. Any period is arbitrary and that one is as good as any.
My question is principally for Mr English, but the other witnesses might wish to comment. I am interested in the 100m rule because I have a rural constituency. Lawyers in Inverness have asked me about the rule because they have clients who made feudal conditions when they sold a piece of land from a farm. One such condition might be that the buyer must not keep dogs in case they worry livestock. The RICS has given other examples of cases in which the 100m rule would have a deleterious effect on the management of the countryside. Will Mr English remind us of those examples?
The RICS takes the view that the protection should be for all open land, rather than only for land that is for residence or human resort. We are concerned about the emphasis that is being placed on livestock; I refer to the example that the member has just quoted. We believe that the burden should relate to the protection of land rather than to the protection of livestock. That said, we understand and sympathise with the example that the member gave. We have other examples, including the case of a woodland owner who could sell a plot of land in the vicinity of the woodland for residential development and include—for obvious reasons—a burden in relation to garden bonfires. Such a burden would create a situation in which a proprietor could not have an adjoining property within 100 metres or one that is used for human resort.
Landowners who live many miles away or perhaps out of the country could impose intolerable conditions on people. Are you suggesting that the 100m rule should not exist or that it should stay under certain conditions?
We are not suggesting that the 100m rule should not exist. If the burden is worth keeping, the owner will maintain it and will take the steps to do so. The RICS feels that there is unlikely to be a massive move by absentee or remote proprietors to go to the expense and trouble of retaining burdens that have no material value. If the burdens have a material value to proprietors, they will be worth retaining and there should be a facility whereby they can be retained.
If the burden is worth retaining, and if the vassal refuses to agree to the burden, would not the Lands Tribunal for Scotland deal with the situation? If it was worth while to retain the burden, I presume that the Lands Tribunal would retain it.
That is certainly a backstop for proprietors.
But you are not convinced that that is enough?
I am not convinced that that is enough, as in most cases it will be necessary to go to the Lands Tribunal. It is highly unlikely that the vassal will say, "Yes, I agree."
I move on to Wendy Alexander for the last of this batch of questions.
What is your view of the Executive's approach to development value and clawback burdens? In particular, what is your view of its decision not to preserve development value or clawback burdens in the current compensation arrangements?
I will answer that question on behalf of Homes for Scotland. You used the phrase "the Executive's approach". Homes for Scotland and I had some difficulty identifying what the Executive's approach was. A fine balance has to be found, but it is probably the lesser of two evils to stick to the compensation provisions in the Abolition of Feudal Tenure etc (Scotland) Act 2000 in favour of superiors in the event of a breach of a development value burden that will be created before the appointed day, as opposed to allowing the burden to be saved. There will be a rush to create new superiors and development value burdens before the appointed day. I have personal and bitter experience of that happening within the last fortnight.
We note your comments that the clawback issue is difficult. We will discuss the matter with COSLA in light of your perspective.
That concludes this session of evidence. I thank the panel for their comments, which have been thought provoking and practical. We need practical answers.
Yes. Generally, we welcome the provisions in the bill, particularly in respect of owner-occupied retirement and sheltered housing, which has had an inadequate legal framework for its management until now. An effort has been made, within the limited provisions of the bill, to sort out the management problems.
I refer members to Age Concern Scotland's submission.
Are you happy with the current definition of sheltered housing? Do you have any suggestions as to how that definition might be improved? Are retirement housing and sheltered housing one and the same thing or are they different? What are the reasons for your view?
There has been much debate about definitions of sheltered housing and what is sheltered housing in relation to retirement housing. There are a few different guidelines on that in a circular from what was the Scottish Office. There is a definition in the Executive's framework code of practice for managing agents and there is now a broader description in the bill. In general, Age Concern Scotland is happy enough to leave the definition as general as it is, given that the bill includes provisions to protect very important burdens in this type of housing. Age Concern Scotland has an advice service, which my colleague Euphan Todd manages, which is specifically for retirement and private sheltered housing. We are very much aware of the fact that when sheltered housing is sold on the open market, it is often referred to as retirement housing in the literature and the advertisements. Owners use that term and I do not think that it is helpful to try to separate the two phrases. We would be happy to see references in the bill to sheltered and retirement housing.
There is some confusion about whether there is a difference between sheltered and retirement housing. Is your evidence that in practice there is so little difference that it is not worth making a distinction?
We want to concentrate on the services that are provided in the grouped housing that people have bought into. All have an alarm system and a management facility—someone who is called a warden, manager or secretary and who will be on or who will visit the complex. Concentrating on the differences is unhelpful.
If it is argued that the definitions should be separate, that argument is not generally accepted by housing professionals.
I do not think that separate definitions exist. They are just different words that people use.
You think that the present definition includes both categories.
The exception is that the evidence from owners is that they would prefer the word "retirement" to be used, since we are using the word "sheltered". Owners would prefer both words to be used.
I will roll my questions about core burdens and other burdens together, because they are all related. Is the concept of distinguishing core burdens from non-core burdens right? Are the distinctions right? Are the right items in the right columns? Is it right to require a 75 per cent majority for core burdens and 50 per cent for other burdens?
We have asked for core burdens to be distinguished from non-core burdens, in line with the views of some owners. We held a seminar for owners of sheltered housing, which Euphan Todd organised and at which we received comments. Most owners agreed that the removal of some elements of sheltered housing would destroy the housing as people understood it. People have bought into that housing expecting such services.
Has the Executive got the distinction right between the core burdens and the other burdens?
The core burdens relate to matters such as the community alarm, the secretary, caretaking or warden service, management of the common facilities and the age requirement. In our view, those are the core burdens. We agree with the Executive.
Hanover (Scotland) Housing Association's submission suggests that although a minimum age requirement should apply in sheltered housing communities, it is not a good idea that the existing minimum age in a deed of conditions should never be alterable. It suggests instead a minimum age—for example, 55 years—that could not be lowered, but that above that age, the figure could be varied with 75 per cent majority consent. What are your views on that?
That suggestion is sensible. Our understanding of the bill is that the figure could be varied or discharged with unanimity—100 per cent—but in practice, that is well nigh impossible to achieve. We understand owners' concerns about lowering the age to a much younger age group. The figure of 55 seems about right. We would not like the figure to be lower than 55.
Do you feel that the concept of manager burdens is sufficient for the purposes of covering sheltered housing and retirement homes?
Yes. We need manager burdens for different types of developments. We need them to be in operation from the early stages of development until the units are sold. We are not particularly sure about the 10-year duration. Quite a few owners have reservations about the need for it to be so long. It must be longer than one or two years; we thought that five or six years might be better. We are giving the views of some owners. We do not have firm views on the period, although we do not see the need for it to be longer than 10 years.
So you recognise the need for the manager burden, but you think that there is an issue about the time scale for which it should be in place.
Owners have found themselves in a position where they are unable to change or dismiss managers. That is a basic infringement of their rights. We welcome the provision for owners to dismiss the manager—if there is a general consensus. We have reservations about any development scheme being left without a managing arrangement, perhaps if not enough owners wanted to reappoint a manager or if they could not find a suitable managing agent.
Would you prefer the 10-year time scale to be reduced, and if so, to what length?
I am not sure whether I made myself clear. The manager burden would drop after 10 years. We think that that period could be shorter. There is a separate and important issue of a development being left without a managing agent.
How long should the period last?
We think that five or six years would be appropriate. Our opinion is based on views expressed to us by owners. We do not see why 10 years would be needed to sell off all the units in a development. It is in the developer's interest to market and sell the units as quickly as possible.
I am interested in what you were saying about the dilemma in relation to a bad manager. If people are not happy with the manager of a sheltered housing complex, the alternative might be no manager at all. How can that be balanced? Do you have any ideas about how we can prevent such a situation from developing?
We have not really had any experience of owners coming to Age Concern Scotland wanting to replace the managers with themselves. Most of the problems have involved people wanting to change their manager. Owners would benefit from advice and information and help through the process of making the major decision of changing from one managing agent to another. In sheltered and retirement housing there are all sorts of implications that relate to maintaining the service and the facilities that will probably be the property of the current manager, that is the warden's flat and the communal lounge.
What about the different kinds of majority that are required in different circumstances? As I understand it, where the title deeds do not provide for the dismissal of a manager, a simple majority of the owners of the units—counting in units rather than in numbers of voters—may dismiss a manager. When the title deeds provide for dismissal by a large majority or even unanimity, a manager may be dismissed by a two-thirds majority regardless of the terms. Are you happy with that? How would you like to see the voting work?
We would be more comfortable with having a higher threshold than a simple majority for something as major as dismissing a manager. The simple majority will be used in complexes in which there was no provision whatever. Therefore, one would go from a situation whereby a manager was appointed in perpetuity or required a 100 per cent vote for dismissal, straight down to a 51 per cent requirement. There will still be provisions for the two-thirds majority in other cases. For example, managing agents may have made a provision for a 75 per cent vote, but that will go down to 66 per cent. It would seem to us more equitable and sensible if there were a two-thirds majority for all situations unless the deeds specify a lower majority.
An issue that we have raised with other people is the question of the model development management scheme. Your interests in it are obviously slightly different from those of other witnesses. We are interested in your view of the scheme, which is proposed by the Law Commission. Your written submission indicates that you probably like the scheme but would prefer it to be stronger. Perhaps you can give us a flavour of what ideally the character of that development management scheme would be if the question of reservation to Westminster were overcome.
The owners that we have dealt with are wholly in favour of the model development management scheme. I assume that some of them, like us, have not considered the scheme in detail and so have perhaps not understood how the confusion to which earlier witnesses referred might arise. However, the major concepts of transparency and accountability to the owners about what money is to be collected and why, where it goes and how it is protected would provide safeguards for the owners and higher standards for managing agents. Those aspects of the scheme are crucial to good property maintenance and the management of sheltered and retirement housing.
Do you wish to say anything further?
No, except to thank you for listening to us.
Thank you for your evidence, which was helpful.
Meeting suspended.
On resuming—
Before I introduce the next group of witnesses, I ask the committee's leave to postpone for two weeks our discussion of the committee's work programme. We cannot do it this week, simply because of the size of today's agenda. I believe that we cannot do it next week either, because we have an informal meeting with the Auditor General for Scotland to discuss a possible audit of alternatives to custody that are in operation. Given that, it might be appropriate to discuss our work programme after that meeting. Are members agreed?
We also have to tweak one or two aspects of our final report on legal aid, which will give us a more assembled programme.
Before we start, I should declare an interest. I am a member of the council of the Law Society of Scotland. However, I appear before the committee today as a representative of SHOC and anything I say is on behalf of that organisation.
I refer members belatedly to paper J1/02/29/5, particularly the second page, in which SHOC summarises its relations. I am just not with it today. I also welcome Ken Macintosh to the committee.
Am I right in thinking that SHOC is not altogether happy with the current definition of sheltered housing? Do you have any suggestions or recommendations as to how it might be improved?
Indeed. It is fair to say that we are not entirely comfortable with the current definition of sheltered housing. However, it could be remedied concisely. In that respect, I echo the comments of previous speakers who said that nowadays properties are rarely sold as sheltered housing; rather, they are usually sold as retirement accommodation or retirement housing. There is a remarkable difference between the terms in the public's eyes. Sheltered housing or sheltered accommodation implies that the people who live there are somewhat infirm or require a higher standard of care than do people who are simply elderly. I understand that such an implication might have emerged from rented sheltered housing schemes, where people must fulfil certain medical conditions before they are given such accommodation.
Are you arguing for a more comprehensive definition or a different definition?
I am arguing that those words should be inserted in the current definition and that, for all practical purposes, there is no distinction between retirement accommodation and sheltered housing.
You have told us what you believe to be the differences between a sheltered housing complex and a retirement community. Would I be right in thinking that that is not just a question of perception, but of reality?
In my submission, there is no difference between a sheltered housing complex and a retirement complex. When properties are being marketed as retirement accommodation, one finds that the accommodation is sheltered housing only when one looks at the legal documents. That is the difference. The difference is in the public's perception but the reality is that the two are synonymous. That is the first point.
Would it therefore be fair to say that within the general definition, there is a breakdown in the fine print, which can be markedly different depending on different circumstances?
The only difference would be from complex to complex in respect of the services that are provided. However, the core burdens—as they have become known in the bill—should be the same whether the accommodation is retirement accommodation or sheltered accommodation.
Is the drafting such that retirement communities could be excluded from the bill?
They could be if a lawyer was clever enough simply to exclude the words "sheltered housing accommodation" from the deeds of conditions. In other words, it could be argued that one or two of the core facilities or services were missing. That would distinguish sheltered housing accommodation from what would be retirement accommodation. Therefore, the unscrupulous developer could distinguish his complex from the purposes and ambit of the bill.
Are you calling for an amendment to clarify the matter so that there can be no misinterpretation?
Yes.
I think I followed that. Is an amendment required, so that evasive measures cannot be taken in deeds of conditions to avoid the consequences of the bill?
Yes. For example, with the deed from which I quoted earlier, the property was marketed as retirement accommodation, but the deed of conditions shows that the accommodation is sheltered housing. The reality is that most clients, especially elderly clients, do not read and digest the terms of the deed of conditions.
Few of us do.
As a consequence, if there were a difference between sheltered accommodation and retirement accommodation, and one wanted to avoid the consequences of the bill, it would at least confuse the issue if one marketed property as sheltered accommodation and put into the deed of conditions reference to retirement accommodation, which does not fall within the ambit of the bill. An amendment is required to avoid ambiguity in such a situation.
No doubt that amendment will wing its way to us at some point.
I want to explore the question of the burdens that are placed on complexes. Is it a good idea to distinguish between core burdens and other burdens?
Put shortly, the answer is no. There exists a perception that elderly people are unable to make up their minds. That is nonsense for the purposes of the bill. In relation to other matters, I submit that proprietors should be able to determine the conditions with which they as proprietors are obliged to comply. We are dealing with proprietors, not tenants, who should be able to make up their minds about the services that they want and do not want.
As I explained earlier, I have another meeting that I must attend. I hand over to the deputy convener, Maureen Macmillan.
What about protection of the minority? If someone thinks that they have bought into a retirement complex and for whatever reason a majority votes that the complex should become something different—even if the balance is 51 per cent to 49 per cent—should not they have some protection to allow them to remain in a retirement block?
The protection is inherent in the democratic process. The properties are marketed and sold as retirement or sheltered housing accommodation. Anyone who buys into such property knows what they are buying into. Occasionally there will be votes about what should or should not be done, but it is highly unlikely that there would be a vote to cancel a deed of conditions in so far as it related to sheltered housing being the purpose of the accommodation. That is what 100 per cent of the people living there will have bought into—they will not have bought a property only to find out afterward that it is sheltered housing.
Should not there be some provision to ensure that retirement homes continue to be retirement homes? People can argue about the details of how a development is run, but democracy is about the protection of minorities as well as the will of the majority. One can imagine a situation in which there is a set of retirement homes on an attractive site and a developer comes along and offers everyone £X more than the market value. Should not there be some protection for the minority of people who do not want to accept that bribe?
Indeed—but there is protection because a developer would not be able to do what you suggest. A developer would not be able to acquire such a property—the conditions of being over 60 years of age or of being capable of leading an independent life would not apply, because the developer would probably be a corporate institution.
Should all decisions be made by a simple majority and should there be no distinction between core burdens and other burdens? Should the owners be able to vote to have the housing managed as they wish?
Indeed. As I said in my submission, one should trust the owners to know their own minds. The drafting of the bill is complicated by talk of core and non-core burdens. A dispute could arise over section 50(4)(a)(ii), which mentions "a service". Section 50(4) says:
Thank you. That is very clear. I understand what you are getting at.
Donald, would you mind if Ken Macintosh came in at this point?
Not at all. I have resigned, as it were.
There is no need for such drastic action, Donald.
I have not found that to be the case.
We have all heard about Millbrae Gardens, a case that sheds light on the use of the 75 per cent majority consent. There was a great deal of unhappiness between the residents and the developer and you tried to get a vote taken to overturn the wishes of the developer. What was the result of that vote?
When Hanover called a special meeting to decide on the arbitration award, that award received 74 per cent acceptance from our owners. However, despite that, Hanover did not implement the award.
In the complex, many people were extremely animated about the behaviour of the manager and decided to take action. However, despite that, and despite having very good reason to complain about the increase in service charges, you mustered only 74 cent in the vote.
That is correct.
Would it be fair to conclude that a 75 per cent majority consent is a blocking mechanism and not an appropriate threshold?
I do not think that the 75 per cent majority consent is in the interest of owners. Everything would remain the same and we would return to fait accompli decisions. Irrespective of the percentage of the majority vote, it was still a majority.
Yes, indeed. SHOC said that Millbrae Gardens is not an exception. Is it fair to say that many residents in retirement complexes around the country feel that they are vulnerable to bullying?
Yes, it would be fair to say that. In our submission, we referred to research that was compiled by Eleanor Clark of the former Scottish Homes about owners who were frightened. We did not suffer from bullying; we just had our money stolen from us—it was done very politely. I know of complexes in which people are frightened to raise their head above the parapet. If they do so, they are victimised.
Without naming names, can you give examples of what happens? You gave an example in Aberdeen in which the factor or management company removed some of the services that were offered to residents.
That is happening all over the country. Examples include the cutting of warden services without consultation and with no decrease in the management fee, but a decrease in the number of hours provided. Many retirement complex managements are not financially accountable to their residents. As a result, residents feel that, if anything has to be done to their flat and they ask for a breakdown of their account, they are picked on.
The bottom line is that owners should be given greater financial control and that the manager or factor should be made more accountable to the owners. Would SHOC welcome that?
Yes. That said, we feel that the term "manager" is a bit confusing. In many complexes—without consultation—the name "warden" is changed to "manager". If owners talk about a "manager", we immediately think of the person who is the warden and not the management company. I have forgotten the question.
You have answered it. Will you clarify that you would like the use of the word "manager" changed in the bill?
Yes—to "management company". It is difficult to understand any deed of condition. Difficulties could arise if the management company is called the "manager" and the warden is no longer referred to as the "warden" but the "manager".
Before I call Wendy Alexander, I ask her to be careful about the sub judice rule, as we do not want to get into defamation procedures or anything like that.
Let me return to the generalities, and to a specific point that would make it less likely for such situations to arise—a model development management scheme. As the Law Commission has proposed it, I will assume that you would be in favour of the inclusion of such a scheme in the bill. The issue that we are trying to reflect on today is whether such a model development management scheme should be tougher and whether it should contain mandatory elements. In terms of redressing the balance in favour of owners, what observations would you like to leave with us on the character of such a scheme?
On the whole, SHOC welcomes the development management scheme, although it contains one or two matters that appear to conflict with the bill.
You have already touched on this matter, but it would be helpful if you would clarify the position beyond doubt. Hanover (Scotland) Housing Association suggested that, although there should be a minimum age requirement in sheltered housing or retirement communities, it should be possible to alter the existing minimum age in a deed of conditions. The association suggests that there should be a minimum age—for example, 55—that cannot be lowered. Above that, the age could be varied, if there is a 75 per cent majority consent to such a variation. What are your views on that subject?
SHOC found that proposal somewhat strange. I read Hanover's submission online and I found it patronising. It expressed a fear, on behalf of its residents—rather than on its own behalf—that the young ones may wish to change the deed of conditions. I believe that the terms "the less old people" and "the young ones" have been used in various submissions, although Hanover may not have used them. The submission tells the Parliament that the age should be 55. In SHOC's view, the age should be 60. That addresses Mr Gorrie's point. It should be possible to increase the age by a majority vote. However, setting an age of 60 should protect against young ones' seeking to make a penny or a quick buck by selling sheltered accommodation that they have bought on the open market.
I want to return to manager burdens. Are you satisfied with the provisions of part 5 of the bill as they relate to sheltered housing and retirement home accommodation?
The member is referring to the provisions in sections 58 to 61 of the bill.
SHOC is happy with the manager burdens set out in the bill, with the exception of the 10-year rule concerning new developers. The papers that we have submitted provide examples of cases that illustrate our point of view. Mrs Reid acquired her property in 1987 or 1988. In 1989 there was a dispute—the service charge had been increased by more than 20 per cent in one year. There were also other problems. Under the deed of conditions, the dispute went to arbitration. The arbiter charged £100 an hour. I make no complaints—the sum charged was appropriate. The arbiter's clerk also charged £100 an hour, so the cost of the arbitration was £200 an hour plus VAT. That does not include legal expenses.
I am anxious about the fact that we are discussing individual cases.
I will conclude by saying that in 2001—four years after the arbiter's determination—that decision was subject to judicial review. Lord Wheatley's decision is contained in the papers that have been submitted to the committee. He threw out the judicial review.
You accept the bill's provision for the manager burdens being in place until all the properties are sold. If that happens within a year, the owners could vote to change the manager. However, if the manager retained an interest in the property, you would like that to be limited to three to five years at the most.
Indeed. The managers often retain a strategic interest in the property.
The bill contains provisions to ensure that a warden's house, for example, can be classified as the manager's retaining a unit within a property. Those provisions are intended to protect owners. Are there sufficient provisions in the bill to stop the type of abuse whereby a kind of kid-on interest is retained?
There are probably sufficient provisions in the bill, taken in its entirety. However, in that scenario there should again be no reason for the 10-year period; it should simply be three to five years. The principle is acceptable, but not the 10 years.
Thank you to Marie Galbraith, Margaret Reid and John McCormick for their evidence, which has been duly noted and will be taken account of.
Good afternoon. The SFHA is the representative body for registered social landlords in Scotland. Our members, who number around 200, have collective responsibility for the ownership and management of some 150,000 properties in Scotland. In addition to being the owners and managers of those properties, RSLs act as factors to a considerable number of owner-occupied properties. The operation of the right to buy, and in future the modernised right to buy, will obviously be relevant to RSLs in connection with the bill. RSLs provide factoring services and are responsible for the provision of shared-ownership housing throughout Scotland. Therefore, they have responsibility for buildings in common ownership. As my colleague Stewart Kinsman will explain, several of our members are also providers of sheltered housing.
I am the chief executive of Hanover (Scotland) Housing Association. My association is a registered social landlord and owns and manages 4,000 houses throughout Scotland, which are mostly sheltered housing for older people. We also manage on behalf of owner-occupiers just over 1,000 owner-occupied sheltered houses. We welcome the provisions in the bill for much the same reasons as earlier speakers. We certainly welcome the clarity that the bill brings to areas of title conditions and real burdens that have been unclear. There is another aspect of the bill that we particularly welcome.
I am from a firm of solicitors that specialises in social housing law. We act for about 100 housing associations and for funders and bodies that have an interest in social housing. I am here to support the SFHA's submission because of the bill's legal complexities.
Are you happy with the definition of sheltered housing and do you have suggestions for improving it? We heard the suggestion that deeds of conditions can contain different conditions that depend on whether a house is marketed for elderly people or for people who need a higher level of care. The overall definition appears to cover all categories, but I would be most grateful if you told us whether you are satisfied with the current definition and whether we should be concerned about the differences in deeds of conditions when considering amendments that may arise.
I reiterate that we welcome the fact that sheltered housing has been given some definition in the bill. However, the definition is less specific than the guidance that accompanies the bill. The guidance spells it out that sheltered housing has a warden service, a central alarm service and other design facilities. The bill does not spell that out, which we find slightly dangerous.
If it is your evidence that the wording should be more specific, will you examine it further and let us have a draft amendment for our consideration in due course?
I would be perfectly willing to do that, but I draw your attention to the code of practice for owner-occupied sheltered housing, which was drawn up under the auspices of the Scottish Executive, and to the definition of sheltered housing in that document. A wide range of interests, including representatives of SHOC, was represented around the table when the code of practice was prepared. The specific definition of sheltered housing in that document would be perfectly acceptable.
Mr Kinsman said earlier that developers are often in the position of having to protect the most frail and vulnerable residents from the predatory behaviour—I do not know what exactly he was suggesting—of the younger older residents. SHOC has argued that the best protection for the residents lies with the residents themselves. Do you not agree with that?
I would certainly not use the word "predatory" of the majority of owners, or of any owners. I can only point to the development at Millbrae Gardens that was referred to earlier. A significant minority of owners on that development does not want changes and does not agree with the steps that the majority has taken. Thankfully, the situation at Millbrae is quite exceptional and does not apply throughout Hanover's developments, but it provides us with an example of a minority that feels strongly that its voice is not being heard. If anyone has any doubt about that, I recommend that they attempt to speak to or get information from those in the minority at Millbrae, which was certainly not listened to.
I believe that 74 per cent of the property owners voted in favour of changing the deed of conditions. Is that so?
Yes.
Do you not think that 74 per cent is a significant number? Should you not listen to those people's wishes?
We are entering the realms of a particular case but, in response to the question, there were arguments on the other side. The advice that we received was that some of the proposed changes were not permissible under Scots law. That was why we did not agree to the particular change to the deed of conditions. We then took a decision, which I believe was a responsible one, to seek a ruling from the Court of Session on that particular point. Having received advice that certain changes could not be made, we went to the Court of Session, where we were told by Lord Wheatley that they could be made. We have now made those changes.
If I may interrupt, we are here to scrutinise the bill, not to ask questions about particular incidents.
I appreciate that, Convener. My point is that SHOC has presented certain evidence that the owners themselves are the best people to protect their own interests. Mr Kinsman is arguing that the developer is the person best placed to protect the interests of the most frail and vulnerable. In the court case concerning Millbrae Gardens, I believe that Hanover was directed by the arbiter to relinquish the role of superior and factor. That was in 1996. Despite that ruling and the judicial review, Hanover is still factor and superior even today. Is that correct, Mr Kinsman?
That is correct. We have asked the owners to tell us whom they wish to appoint as factor, but we await their reply.
I want to return to part 2 of the bill and consider sections 31 to 36, which deal with the discharge of community burdens. The bill makes two provisions for the discharge of burdens: one by majority and the other by adjacent proprietor. Are you satisfied with those two provisions or have you any concerns about them?
In general, I have no concerns about the provisions. The bill strengthens that area of the law and we are quite happy with that. I am interested in sheltered housing, not in the generality. I do not think that discharge by adjacent proprietors affects sheltered housing. Both the provisions are good and are welcome.
We broadly support the view that Mr Kinsman has expressed.
We may have trodden in this area a bit already, but I want to explore the issue of core burdens and non-core burdens and percentages and all that. As was mentioned in the previous discussion, there may be some instances in which the minority is bullied—if that is the right term—by what might be a small majority of residents. However, I am sure that there are also cases in which a developer or feudal superior who is less than enlightened bullies people. It is a question of keeping a balance between the two. Will you set out your views on all that?
The bill is interesting because it is all about changing the balance of rights and responsibilities and the relationship between them. We believe that the bill has got things about right.
Do you distinguish between the core elements and the other conditions, for which you would accept a simple majority?
The argument concerning the other elements of sheltered housing is less emphatic. Hanover's written submission gives the example of the keeping of pets, which can be important for a single older person living on their own. A burden that said that one pet could be kept in the house would be a non-core burden, but the removal of that burden could have quite an impact on an older and more frail person. Although we have fewer reservations about the provision that non-core burdens could be changed if more than 50 per cent of the owners of the units were in favour, we are still concerned that it might have an adverse impact on certain individual residents.
So your view is that the best interests of the frail minority of residents are best guarded by the management company, or whatever it is.
I would not put it quite like that. The bill shifts the burden of responsibility to owners and removes from managers a substantial part of the responsibility for managing developments. If the bill is considered in conjunction with the abolition of the feudal system, superiors' rights will disappear. Most managers' rights and responsibilities are held by managers in their capacity as superiors and those will be shifted to owners. We welcome that. The responsibilities will still be there, but owners will have to take key decisions themselves. We think that that is a step forward.
You will know that, where the title deeds do not provide for the dismissal of a manager in sheltered housing, the owners of a simple majority of units may dismiss him or her. By virtue of section 59, however, where the title deeds provide for dismissal, a manager may be dismissed by a two-thirds majority of owners, regardless of the terms of the title deeds. Are those provisions right for the special circumstances of sheltered housing? On a smaller point, is it appropriate that a warden's flat will not get a vote?
My management committee and staff who are involved with the issue have mixed views. On the one hand, we agree that title conditions should not make it difficult for a manager to be dismissed. On the other hand, the manager is often unpopular precisely because he or she has protected the minority of frail owners, which makes matters difficult. However, nothing is to be gained by trying to manage a development in which there is conflict with the owners—I am sure that members will appreciate that from deliberations that they have heard. We do not have strong views on the matter. If it is decided that the bill will refer to 50 per cent, we will work with that figure.
What are your views on whether a warden's flat should get a vote?
We take a similar view about that. Often, the manager owns the warden's flat and there is an argument that it should have a vote. However, I have been involved in situations in which there have been close votes and my organisation has usually abstained so that we could not be seen to carry such a vote by one, which would be unfortunate. We have no strong views on the matter.
That is helpful—thank you.
The short answer is yes, we agree with that. Linda Ewart may want to add a few words.
The SFHA would strongly support any effort to restore the model development management scheme to the bill. We were disappointed that the scheme was absent, although we understand the reasons for that. There is a lot of merit in having a scheme that provides a degree of consistency and serves as a model that the majority of managers can adapt to suit their own requirements but which is based on a framework that contains certain mandatory core elements.
We now move away from consideration of sheltered housing and retirement housing to consider housing in a broader social context.
I will stick with part 5 of the bill but go on to manager burdens, particularly in the context of social housing. Are the bill's provisions for manager burdens sufficient?
I would be happy with the bill's provisions. The bill has got the provisions on manager burdens for sheltered housing about right.
Are you happy with the 10-year period?
I do not have strong views on that. It is about right. We would have no difficulty with the period being reduced to, for example, six years. I believe that Age Concern was pursuing that period. A period of five or six years would be acceptable.
The SFHA would go along with that. Ten years seems about right, but we would not be unduly concerned if there were a reduction to five or six years. We would be concerned if the period were to be reduced to below five years.
The manager burden can extend to 30 years on a property that is purchased under the right to buy. Is that an adequate time scale or do you have concerns about that length of time?
From our reading of the bill, we understand that the provisions of section 58 would apply to local authorities and to registered social landlords where the sale has taken place under the provisions of the Housing (Scotland) Act 1987. On that understanding, we support the principles in the bill. Those provisions should apply equally to registered social landlords. The 30-year time period is appropriate.
We may have to check the bill in case there is a lack of consistency.
Our adviser is checking it as we speak.
We would like the bill to include a provision in section 28 that, in addition to the notification procedure, there should be an opportunity for the owners to be consulted on or to discuss the proposed work. We are a little concerned that the bill contains no requirement for discussion or consultation. We suggest that that should take place before work is instructed. If that is not possible, we suggest that a different approach be adopted and that the application of section 28 be confined to works of essential maintenance, rather than the broader definition that is used in the bill. However, we support the definition of maintenance that is provided in the bill, which takes us a little beyond the basic state of repair.
Have you anything to add, Mr Kinsman?
No, I fully support the view that Linda Ewart has given.
Last week, the Law Society suggested that section 28 was far too detailed and bureaucratic. Do you share that view?
No.
Are the safeguards in the bill in respect of the funds deposited in advance adequate?
We have some concerns about those safeguards and believe that they are not adequate. We are concerned about the provision that would allow a bank account to be operated on the basis of the signatures of two individuals. We are concerned that sufficient safeguards are not in place or may not be in place to protect the money that is deposited in that account. One of the reasons that we were disappointed that the management scheme was not included was that provisions in that scheme would have provided those safeguards.
Paragraph 3.1 of the SFHA's submission says that 10 years, rather than five, would be an appropriate time for the period of negative prescription. Could you explain the reasoning behind that and how negative prescription should work?
We were concerned that, at a time when housing associations and individuals will have to deal with complex technical changes, a significant reduction in the period of negative prescription from 20 years to five years could result in some oversights. As a result, while recognising the need for a reduction in the period of negative prescription, we suggest that a more appropriate compromise time scale would be 10 years. That would avoid the possibility of unfortunate oversights and would help people to deal with the period of huge change in a complex environment.
Overall, the effect of the bill is to increase the role of the Lands Tribunal for Scotland in relation to title conditions. Do you foresee any difficulties arising from that approach?
We believe that making an application to the Lands Tribunal is quite a cumbersome procedure for older people to follow. We support Age Concern's proposal that there should be a mediation service as a sort of halfway house that would ensure that as many decisions as possible could be kept away from the Lands Tribunal. That would allow more efficient use of the Lands Tribunal's time.
What sort of mediation service did you have in mind? Were you thinking of the creation of a new quango or a voluntary organisation?
I picked up from Age Concern's submission that it already runs an advisory service that was supported by the Scottish Executive. I believe, however, that it believes that a mediation service would go a stage further and might avoid disputes getting to the Lands Tribunal or to the litigation stage.
Could you give more thought to the matter and let us know whether you have thoughts about who might best provide such a service?
I would be happy to pursue that.
I think that Linda Ewart's interpretation of the bill is correct. Paragraph 237 of the explanatory notes says that the two-thirds rule can be used in relation to estates subject to the 30-year period but not in relation to other types of schemes in which the managed burden is still operative. That suggests a lack of consistency.
Could I make a point before we finish?
Certainly.
Section 53 of the policy memorandum says that amenity burdens will not be lost as a result of the bill. Under feudal reform, superiors will lose their rights in relation to amenity burdens, but section 52 of the Title Conditions (Scotland) Bill gives enforcement rights to other owners. The idea is that, where superiors lose their rights to enforce burdens, those rights are given to the other owners instead.
Professor Roddy Paisley raised that point last week and I am sure that we will deal with it further. Thank you for raising it again, as that further highlights its importance.
Meeting closed at 16:52.
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