Justice 1 Committee, 22 Dec 2004

Meeting date: Wednesday, December 22, 2004

Official Report 285KB pdf

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Security of Tenure and Stability of Rents

Item 4 concerns security of tenure and stability of rents. I refer members to notes that have been prepared by the clerk and our adviser. I invite the committee to consider a number of options. We have had a meeting with our adviser, Professor Robert Rennie, and discussed various options with him. We have had a chance to examine in detail the advice that he has given us in writing.

I invite members briefly to discuss on the record the advice that they have been given and the action that they wish to take. I welcome Alasdair Morgan to the committee. He has a particular interest in this matter and was able to join us at our meeting with Professor Rennie. Before members comment, I wish Chris Gane—who is about to leave us—a merry Christmas and look forward to seeing him next year for more legislation.

I am conscious of the options that the clerks have offered us. The first of the three options set out in paragraph 16—option (a)—is for us to ascertain whether the hutters groups have considered part IV of the Land Registration (Scotland) Act 1979. It would be sensible for us to do that.

Given that options (b) and (c) are much more substantial, in that they would involve consideration of legislative changes, I suspect that it would be difficult for us as a committee to pursue them. I think that, for the moment, we should just proceed with getting information from the hutters. That is the sensible next step.

Following the briefing that the committee received, I talked to the legal adviser for the hutters at Rascarrel bay in Kirkcudbrightshire and to some of the hutters themselves. They were quite excited by the option that the Land Registration (Scotland) Act 1979 seemed to offer them. I believe that their solicitor is proceeding on that basis, although I am not sure what legal stage matters have reached. He certainly seemed to think that there was at least a prima facie case that many of the hutters could be tenants at will and therefore able to avail themselves of the act. When the hutters were apprised of that information, they were interested in exercising the purchase options for which the act provides. That seems to offer a way forward, although there are lots of ifs.

Chris Ballance wrote to me to say that one of the hutters whom he knew was attempting to pursue that course of action. As yet, there is no outcome. I do not know how the process started, but a hutter is attempting to use the provisions in the 1979 act.

As members know, we have dealt with the issue for a long time. It seems that with every idea that we have had, we have come up against a brick wall—although we could solve part of the problem, another problem was always created. That is what we found at our meeting with Professor Rennie. We had five or six options, but once we began to consider them, we realised that there were obstacles in our way. For me, what came out of our meeting with Professor Rennie was a solution that we had not thought about, which lay in the provisions of the 1979 act. Rather than try to give people rights in relation to a variety of hutting properties, we could give them an option under other provisions, although there would have to be some amendment of the 1979 act. As someone who has examined the issue for several years, I do not think that there is any other option. We have considered everything and there is no other legislation that it is worth spending time on. I am willing to go for option (a).

It is reasonable for us to establish what interest there is in the opportunity that the 1979 act offers and to take things from there.

Professor Rennie's opinion makes it clear that there are matters relating to what constitutes a tenant at will that have never been tested in court. If the Rascarrel hutters proceed with their case and those matters are tested in court and there is a judgment, it might be wise for the committee to return to the issue at some stage in the future. A decision in court would allow the committee to say either that the 1979 act offered a solution in some cases or that it did not. The committee might like to resurrect its interest at that stage, depending on the outcome in court.

I think that the committee is saying that it supports option (a), which is to seek information from the hutters about whether they have considered the relevant provisions of the 1979 act and whether they would be interested in pursuing that possibility. As a committee, we should be clear that choosing option (a) would mean closing down the other options. The committee has been willing to try to find a solution, but I see no alternative course of action. I do not want us to go halfway down one road, only to find in any subsequent consultation that we were going down a road that we had already been down.

I note from the briefing paper and from your comments that the 1979 act might have to be amended to cater for the tenancy at will option. I am not aware that we have had a response from the Executive specifically on that option, so it might be worth asking for its views on that.

If you remember, it was only the tail-end of our discussion that focused on that option. We have had no time to explore the matter. All that I want to do today is to get it on record that we wish to explore option (a). We have already discussed the matter in private. We would be happy to pursue writing to the Executive and to the hutters, so that members have the maximum amount of information in front of them when we next have the opportunity to take the matter further. The suggestion is a good one. If the committee is agreed, we will also write to the Executive.

Could we clarify whether there are further issues to do with access rights to the surrounding land in situations in which individuals are permitted under the 1979 act to buy the land on which their property sits? It is one thing to be allowed to buy the land under the property, but if somebody else owns all the land around it and does not allow the person right of access over that surrounding land, then it is quite useless. Has that been addressed?

As ever, there are anomalies and surrounding issues that must be considered. You are right to point out that scenario. At the moment, we need to establish the principle of law. In which branch of law should the Executive legislate? Should it be the law on leases, the law on rent or property law? That is the starting point. We know that, further down the line, we will have to consider other issues. It is a matter of getting the work started. It may well be that we come up against other obstacles—indeed, we undoubtedly will. If the committee agrees, we will pursue option (a) as set out in our paper. I will get back to members on the matter.