We now move to item 3, which we agreed to take in public, on our inquiry into the effectiveness of the provisions of the Title Conditions (Scotland) Act 2003. The purpose is to consider the main issues arising from our inquiry. Members will see that the Scottish Parliament information centre has provided a short summary of the key issues.
I was just going to request some information.
Shall I proceed—or what do you want?
You proceed, convener.
How very kind—very very kind.
Let us deal with section 53 on its own first. There seemed to be a fairly universal view that that section needs to be looked at. The recommendation from the academics was to refer it to the Scottish Law Commission. Does the committee have power to write to the Scottish Law Commission about it? Do we have to go through other processes in order to do that?
It depends what form it takes, but if we are doing a report, we will make a recommendation in relation to those comments. We had no resolution from the two professors concerned about section 53.
We had their agreement, I think, that the Scottish Law Commission should—
Yes, we did have that. They both agreed that the provisions were pretty well rubbish. One thought that we should delete that section entirely; the other did not quite have a solution. We could make a recommendation that the matter be referred to the Law Commission for it to resolve the issue.
Would we need to—
Do we do that directly, or do we have to do it via the Parliament?
We can make a recommendation, although we cannot instruct. It is up to the Law Commission whether it picks it up.
When does the Glasgow factoring commission report?
The factoring commission reports after 17 April.
I would like to wait until we get the factoring commission report. I was going to ask for clarification, but you have already given us it. I have concerns regarding the accessibility of the Lands Tribunal for people, not just developers, to put forward their ideas. There was concern about the two-thirds majority. Some factors seemed to suggest that you do not need a two-thirds majority and yet the legislation says that you do. I would like to seek clarification on that as well. I take it that we can put that in a report.
That is what I am asking. My personal view is that I would like us to do a report. It is also worth seeking a debate on the issues at some point. There are real issues about this legislation now. Somebody here is on the bureau. Are there slots for committee debates, Alison? A short debate on our report would be quite useful.
Yes.
In the evidence that we took, it seemed like we were dealing with two broadly separate issues: section 53 and the property factoring issue. Could we write to the Law Commission asking it to look at section 53 and could we write a report on the property factoring issue? I think that that is the issue that people would be interested in debating in the chamber.
I think that we would draw all that out in the recommendations in our report. You are highlighting the issues. The report is public. The Law Commission might want to respond to a recommendation.
I agree with what has been said. Does the report lay out what we see as the frailties of the legislation? Is there scope for us to suggest some remedies or alternatives?
It is up to us.
The community buyout option is one that appeals to me, but perhaps we have not heard enough about that. The Convention of Scottish Local Authorities has been discussing it. Yesterday I passed the clerk some information on that, which was drawn to my attention. There is a growing debate.
I take it that we are going down the route of a report, which is fine.
I do not know what evidence we would get from the Glasgow factoring commission, but is it feasible that we could begin drafting the report and write to the minister to ask for her views? By the time we get a reply, we would hopefully have the commission’s report, so we could then conclude our report, taking account of those two additional elements. Is that too complex?
I am being advised—just in case anyone wonders why I am leaning over to the clerk all the time—that we could report, have the minister respond and then maybe have as an addendum to the report the issues raised by the property factors commission. Would that be appropriate? Is “addendum” the wrong word? The clerk is giving me a look. The problem with doing this in public is that I cannot let the clerk speak on this.
It sounds like a plan.
It sounds like a plan to me. I am quite happy now.
The question of the 2011 consultation, which is really about the land maintenance company issues, seems to have got kicked into the long grass. I see that Mark Griffin has lodged a general question for answer this week on that consultation. I do not know what the minister will say.
That is fine. We have resolved that section 53 stands alone as a particularly troublesome section. However, there is no doubt but that, from our overview of the act, there are two lines of discussion.
I have asked a number of questions about the role of local authorities and tried to understand at what point that changed. The issue of bonds comes up. As I understand it following some inquiries that I made yesterday, with interest rates being as they are, a bond that would have been anticipated to provide 14 years’ worth of maintenance might run out much sooner because the level of return on the sum that the local authority invested is not sufficient. I hope that I have picked that up right.
Does anyone want to comment on bonds and community ownership?
I agree with John Finnie that it is worth highlighting that there is a role for local authorities to find a solution. They used to do it really well. We should not assume that public open space belongs only to the people who live around about it. It helps to create communities, and local authorities therefore need to be drawn back into that role.
I agree with what has been said. There is a similar issue in the council ward that I used to represent—I suppose that I still represent it, because it is in my constituency. I do not want to get into the issue, but it concerned the ownership of the grounds. There was a debate about who owned them: was it still the developer or was it the people who thought that they had the deal to carry on the maintenance? It all gets very murky.
That would be in the title deeds.
You would think so but, oddly enough, it has been the subject of a long-running legal case. It is really murky ground. Anything that we can do to tidy up the matter would be really good for people who are suffering with a rather large area at the side of a nice estate.
Do you want to include the business of the legality of the position? Do you want to question the legality of land maintenance ownership enforcing payment in terms of the operations? The two academics whom we heard last week had a reasonable discussion about that. There is also the issue of the practicalities.
It was more the practicalities. I asked the academics last week how feasible community buyout would be in the instance of a landowning company. They said, “Well, that’s a good question. We don’t know.” Is community buyout feasible? The law seems to say that it would be pretty difficult, even if there was a willing seller. We should look at that.
Before you get to that, can we keep to community buyout? There were issues: it is not just about cutting the grass and pruning shrubs; if I recall rightly, it involves the maintenance of utilities. Does that not raise more complex issues about community buyout? People suddenly become liable for the pipes and whatever running under the ground.
The two things that need to be maintained are play equipment and sustainable urban drainage systems—SUDS. Those are important pieces of infrastructure, although they look nice and green. If they do not work, the whole community will be affected. It is important to highlight that as well.
I was going to mention that. I think that we have all had to deal with that issue in our areas, and people are having to get indemnity.
I am not saying this because I was in practice, but someone would be sued for negligence if they did not at least draw attention to the obligations that there would be. There would then be a very good case for a complaint.
It was the Scottish Law Commission that said that, though.
Speaking with a vested interest as a member of the Faculty of Advocates, I think that we are straying into professional negligence matters on which we did not take full evidence. I do not think that we should have that in the report.
We had nobody from the lawyers to rebut that, and I would take that approach with anybody. Some of us would be concerned about starting to blame where we do not have other evidence.
I am not blaming. The requirement is not in statute. The answer that we got back was basically that it is not. The issue is the advice that people are given—that point is in the Official Report.
I had better not say anything.
On what Sandra White has just said, there were a number of comments from witnesses about a lack of culture in Scotland for the maintenance of property generally. That is an introductory remark in the whole area. We seem to have the view that we will not be responsible for maintaining common land.
That is a very good point and a good introduction to both issues, as the same applies to property factoring. We understand that people do not want to pay to get a roof repaired if they are on the ground floor. That is a very good overview of the culture. People should know what their obligations are on shared ownership or shared services.
There also appeared to be a bit of a problem with identifying what an acceptable level of service is. Everything is fine when people start off—the grass is cut, the fences are mended and whatever other maintenance has to be done is done—but over a period of time the person who has been doing the work starts to ease off on some of it and there is a lesser level of service. That seemed to come across in our first evidence session with Greenbelt. It seemed to contradict itself to a certain extent.
I think that you are asking how residents can call to account such providers, because if residents simply withhold payment, they will find that they get horrible letters and so on. I think that that was the issue.
Who makes the decision on what is an acceptable level of service at the beginning?
The point is that there is no dispute resolution at all in the system at the moment.
Yes. We have talked about that.
On the introductory point about the culture or lack of it with respect to the maintenance of common property, I am worried that we do not have any proposed solutions to that. I have seen that issue personally and in case work. On opening up the report with that, perhaps as we write the report, we should discuss proposed solutions and whether there should be more of a duty on conveyancing solicitors to explain. I do not know. Perhaps we should take evidence on that matter. It seems to me that, rather than simply say that we need to improve the culture, we should discuss how we do that.
I think that we should mention that how we can change the culture has been talked about in evidence, but I am hesitant because nobody, whoever they are—I will try not to sound like a former solicitor—has had the right of reply to rebut anything that we took in evidence.
That is what Lionel Most said—that people are just keen to get the keys—but putting the burden on solicitors to educate people was the first thing that sprang to my mind. We should perhaps take a further look at what could be done to improve the situation, because it is a pretty important issue.
Yes, it is important—we will put that down as a recommendation. The fact that we have undertaken an inquiry into the issue and will—we hope—hold a debate on it should alert the public to what lies ahead for them if they move into a property that is under common ownership or serviced by a land maintenance company that owns the land. I do not mean that in a horrible way, because it can be a good experience, but people need to know what it entails.
Moving on from the issues regarding factors, I note that the level of the fees that are charged is not covered by the Property Factors (Scotland) Act 2011. We could say in the report that some type of mechanism to challenge the level of fees would be a step forward.
To expand on the point about ECHR—
I am talking about protocol 1 on the protection of ownership rights. That is a human right, but we have not really dwelt on it in any detail.
But we should flag it up.
Yes.
Thank you very much.
My point is similar to the one that Roderick Campbell made. Professors Rennie and Reid suggested a possible solution: for cases in which residents want to change their management company, we need to create a right that covers a change in ownership of the land too, as such a right does not currently exist. That was a possible solution on which both professors agreed, so I wonder whether we can capture it in some way.
Thank you.
On a point of information—although I do not know if this relates exactly to the specific points that have been raised—the issue of ECHR and land ownership featured in a recent court case that involved an absentee laird in Harris who felt that his human rights were being infringed. The court made it very clear that the people of Harris have rights that take precedence over those of any absentee landlords.
Yes—it would be nice to put that on the record, but we have never taken evidence on it. You should remember that reports are based on evidence, not on your lovely thoughts and background information.
I would like us to include a recommendation that, with regard to new developments, the Government encourages COSLA to find a way to take them back into the fold.
Are you talking about enforceability?
The link is that locally elected members would be able to monitor what is happening.
You have had the first go at discussing that, but what about enforceability from the residents’ point of view? Have you any issues to raise on the way in which that works just now with regard to enforceability or getting out of contracts?
Does that relate to my point about whether title conditions could be enforced? Both professors mentioned that issue, although Professor Rennie was more robust on it. Is that the point that you are making, convener?
No, I am making another point. Let us imagine that the conditions are enforceable—the professors did not agree completely on that point, so let us take one of the arguments. If the conditions are enforceable, what happens under the current system? There must be a residents’ association and a certain percentage of the vote to change to a different provider, but that provider will not own the land. If A is the management company and owns the land, and the residents want B to take over, that is not a very enticing prospect. Do we want to say something about the mechanism and the practicalities of that?
We could flag up that the evidence that we have had on that point gets quite technical. What we are proposing to say—
The legislation apparently gives residents a process whereby, if they are not happy with the land maintenance company, they can get shot of it and bring in another land maintenance company. That does not seem to me to be possible or to work. If the legislation is supposed to allow residents to do that and it does not, something is slightly amiss with the legislation—that is a fact. What recommendations do members want to make to the Government? Does silence mean that we dinna ken?
We would like to clarify the method by which those decisions can be taken, including what a majority means—is it 60 per cent or 50 per cent plus one?
It is a two-thirds majority situation again.
Is it the same thing with property factoring? You know more about that than there is in the evidence.
It says a two-thirds majority, but some property factors have said, “No, it just means a majority.” However, if you ask anyone who has tried to change their factor, they will say that it is not as simple as just saying that it is a majority. It is stipulated that you have to have at least more than 50 per cent.
There should be clarity about these things.
This is really a first run at the report. We will consider property factors, land maintenance and section 53. We will have a general overview of the issues that have been raised including people being unaware of maintenance responsibilities, the educational aspect, and the fact that it does not appear to be terribly easy to change the factor or the land maintenance company—perhaps more so with regard to land maintenance. We have some general points to make. Then we can divide the report into those two issues and then deal with section 53 on its own. Is that structure all right? I am content if we just leave it there.
I have one final proposal for a solution. Quite naturally, we have rehearsed a bit about whether solicitors tell clients about the maintenance responsibilities, but clients are obviously concentrating on other issues at that point. Can we encourage the Government to create a higher profile within property schedules for responsibilities in relation to maintenance, in connection with any house or other property that someone is purchasing? I am sure that there will be a mention of those responsibilities, but they seem not to be highlighted enough to ensure that purchasers understand those responsibilities.
I come back to the same point that I made previously. We did not take enough evidence on that point to be able to make such recommendations. I am speaking as a lawyer—
No, but we are talking about a culture. You are quite right that it should not be merely for solicitors to be responsible for informing buyers if the information is within the schedule. There is a duty on the purchaser to read such things properly.
I am uneasy because I do not know whether that information is in the schedule. I do not have a clue about that and that is why it is not a good idea for us to say something. Our discussion is on the record, but because we did not ask about that point I do not know whether it is a requirement under the sale of goods legislation.
I do not think that the Law Society will be very happy that we are dabbling in things that we did not even ask the Law Society to comment on.
Indeed.
So having put it on the record—
A number of issues were to do with poor information. We will not play the name-and-blame game—whether the information should come through the lawyers or whatever—but surely we can say that we had evidence that poor information was given to potential buyers. The information could be in the home report or it could be that estate agents are responsible for that information—surely we could put something like that in the report.
I really do not know whether the information is in the home report. That is the problem. I do not want us to speculate. We will put something in the draft report that deals with the need to make people more aware of the issue. If we have a debate, it will be possible to raise all these issues then, having perhaps pursued them further on the basis of the report or—Colin, you are looking peeved.
No.
Is that your normal expression then? Do you want to say something?
No, I will wait for the debating points to come along.
I am running a bit behind schedule, so—
I have a final point on the two-thirds majority issue. The point that was made by the professors last week was that it applies only when the title deeds are silent. I think that we also heard—or I may have read it somewhere else—that it is fairly extraordinary for modern property transactions not to have some kind of stipulated figure in them, probably 50 per cent plus one, so when we say that we want further clarity I am not sure that we should overemphasise that.
I will stop there. This discussion is about the first draft of the report and we have gone back over things. Basically, we cannot say things if we have not taken evidence on them—that is the end of that. Thank you all for your contributions. We will go on to item 4 in private.
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