Justice 1 Committee, 23 Jun 2004

Meeting date: Wednesday, June 23, 2004

Official Report 117KB pdf

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Security of Tenure and Rights of Access

For agenda item 6, I refer members to the notes that summarise the recent correspondence in relation to security of tenure and rights of access for those who own property built on leased land. The committee papers contain a lengthy and very useful legal opinion from Michael Clancy of the Law Society of Scotland, which covers the current legal situation, the scope for specific and general legislation, and the impact on existing contracts and on human rights law.

I shall summarise the Law Society of Scotland's main points. A lease for more than a year must be in writing. In general, anything that is built on land eventually belongs to the landowner, no matter who built it. There is no equivalent of squatters' rights in Scots law and there is no specific legislation that would deal with that issue in a general sense, there being no automatic rights of renewal of tenancies of that type, nor any rights to have the rent kept at the same level.

My feeling is that there is a great deal of sympathy with the petitioners, particularly the Carbeth Hutters Association and others, who are in that situation. However, we are still struggling to find a legal remedy that does not unduly upset the balance of general law. We have received additional correspondence from the Rascarrel hutters.

I invite members to consider whether there is any further action that they want to take, or to make general comments for clarification. I appreciate that this area of the law is complex, and reference has been made to the Abolition of Feudal Tenure etc (Scotland) Act 2000 and to the Land Tenure Reform (Scotland) Act 1974.

The issue seems fairly complex, and I feel that an adviser could tease out the problems properly for us.

As you say, the issue is complex. Perhaps there is no obvious legal remedy and legislation will not necessarily be the best option for addressing the issue, but I am not yet entirely sure about that. It would be helpful to have an adviser who could look at the matter in greater detail and give the committee some specialist advice on the options that may be available to us in addressing the problem. Most of the information that we have had so far from the Law Society, although it is extremely helpful, concerns the existing legal situation, and it has been suggested that a specific piece of legislation could be introduced to deal with the matter. It is a long-standing issue and one that I would be reluctant to leave, notwithstanding the complexity of the situation.

I agree with both Margaret Mitchell and Michael Matheson that the issue is complex. The Law Society's letter was helpful, but it did not clarify things for me, other than to say that the situation is complex, which I already knew.

Perhaps we need to have expert options placed before us, rather than being in our current situation. I am not sure where we go from here. The legal situation is so complex that I am not sure that legislation is the answer, given the comments that have been made about the public good, about the European convention on human rights and about individuals' rights not to have their property taken from them. There is a series of conflicting rights and issues, and we are not yet at a point at which we can say, "Let us take this action."

I support the idea of our having an adviser to assist us in the matter, and I would certainly not want us to drop it, because there is an underlying problem of natural justice. People who find themselves in the situation that we are discussing are suffering an injustice. They might not have a legal recourse at the moment, but that does not mean that we should not pursue it and find some sort of solution.

There is general agreement that we need to appoint an adviser to find out whether there are any options in law. We can all see the problem: although there is variation in the cases that we are considering, the issue is, generally speaking, that someone enters into a lease with a landowner for a certain rent value and, shortly after or some time after that, the value of the rent goes up substantially or the services that go with it change substantially to the detriment. Because it is a marketplace and the tenant has entered into a contract, they are free to walk away from that if they do not like it. The landowner has the ultimate say and, if the market dictates that someone else will walk into the lease, that is the general outcome.

I started out believing that the way forward might be that there should be some regulation of landowners who have huts or static caravans on their land to ensure that there was a bottom line of fair terms. That would ensure that, although the landowner would rightly be able to set the terms, there might be a threshold that would prevent them from tripling the rent at short notice, shutting a road or doing away with services because that would frustrate the lease. What is the point of someone having a hut or static caravan if they cannot get access to it? However, whatever we do—whether we impose rent controls or fair terms—we have to apply that solution not only to the cases with which we are dealing but to all leaseholds, and although leasehold is not as well used in Scotland as it is in England, whatever law we choose will have to cover every case. I cannot think of any way of red-circling the group that we want to help; that is the problem, and there may not be a solution.

I agree with Michael Matheson that because we have come a long way on the matter, because we are agreed that there is an injustice and because we are trying to resolve the matter legally if we can, we should go all the way and find out whether we can be assisted by an adviser who has more understanding than we have of the legal routes that are available.

I agree. You talked about rents being tripled, and it does not seem reasonable or in any way just that massive rent increases—or any of the other actions that have been taken—should be used, in effect, to remove people from their huts. The bottom line seems to be about evicting people; although they are not being evicted as such, they are being evicted by the landowner's action of raising the rent so exorbitantly that they give in and leave. It is in no way just to use rent increases as weapons, and I hope that we can come to a helpful conclusion to the matter. As I said, we must get some options.

I alert members to paragraph 11 in paper J1/S2/04/25/5. We have received further correspondence from hutters and their representatives—namely, from Christine and Norman Milligan; and from Kathleen Downes and Amanda Bradbury, who is acting on behalf of Thomas McDougall. Christine and Norman Milligan request a meeting with the committee and the Minister for Justice. At this stage, because we cannot agree on the way forward and the minister does not support further progress, I am not sure what a meeting would achieve. However, that would not prevent the individuals from pursuing a meeting with the Executive if it wanted to hear from them. Is anyone otherwise minded?

No.

We are agreed that we will continue consideration of the subject and appoint an adviser on it.

We have agreed to take item 7, which concerns the appointment of an adviser, in private.

Meeting continued in private until 12:58.