Tenements (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings of the Tenements (Scotland) Bill. For these proceedings, members should have the bill—that is, SP bill 19A, as amended at stage 2—the marshalled list and the groupings of amendments. Members should note that, under rule 9.10.6, I have today decided to allow one manuscript amendment, amendment 81, which is set out in a supplement to the marshalled list, which members should find on their desks. The amendment will be debated as part of group 9.
In relation to the amendments, I will allow a voting period of two minutes for the first division this afternoon. Thereafter, if further divisions are necessary, I will allow a voting period of one minute for the first division after a debate in any group, and 30 seconds for all other divisions.
Section 4—Application of the Tenement Management Scheme
Group 1 in the marshalled list of amendments is on procedural irregularities in the making of scheme decisions. Amendment 1, in the name of the minister, is grouped with amendments 68 and 70.
We intend that a decision made by the owners of a tenement should not be invalidated by a procedural mistake that occurred when the decision was being taken. Amendments 1, 68 and 70 ensure that that principle will cover any decision in respect of a tenement, unless the title deeds themselves make a specific provision on procedural matters.
I move amendment 1.
Amendment 1 agreed to.
Group 2 is on emergency work. Amendment 2, in the name of the minister, is grouped with amendment 69.
Amendments 2 and 69 deal with situations in which the title deeds for the tenement provide a way of arranging for emergency work but do not say how the cost of that work should be shared out. The amendments ensure that such shares will be split on the same basis as emergency work carried out under the tenement management scheme.
I move amendment 2.
Amendment 2 agreed to.
Before section 5
Group 3 is on an ombudsman for tenements. Amendment 79, in the name of Dennis Canavan, is grouped with amendment 80.
The main purpose of amendment 79 is to establish an ombudsman service to try to resolve disputes between residents of different flats in a tenement, or disputes between a resident and the factor, or manager, of the tenement.
At present, if the tenement is owned by a registered social landlord, certain categories of complaint may be referred to the public services ombudsman. However, no such service exists for residents in tenements that are privately owned. Residents can, of course, take legal action through the courts, but such a process can be lengthy and expensive. That was certainly the experience of some of my constituents who live in privately owned, sheltered accommodation at Springbank Gardens in Falkirk. The residents are all owner-occupiers, but a company called Sheltered Housing Management Ltd is the manager and is supposed to provide certain services.
Some of the residents became increasingly dissatisfied with the poor standard of service provided by the manager and with the lack of consultation, lack of transparency and lack of accountability in respect of its decision making and budgeting. Yet the company was imposing service charges that some of the residents considered to be extortionate. From 1985 to 2002, the service charges increased by 86.8 per cent. As a last resort, some of the residents withdrew or withheld their service charges and Sheltered Housing Management Ltd went to Falkirk sheriff court to recover the payment. The sheriff dismissed the action and awarded costs against Sheltered Housing Management Ltd because it had no legal right to impose the charge under the original minute of agreement. However, Sheltered Housing Management Ltd then went to the Court of Session and, in what can only be described as an incredible judgment, Lord Nimmo Smith allowed retrospective amendment of the original minute of agreement and awarded costs against the residents. The expenses totalled £50,000, split between nine residents, all of whom are elderly, retired people.
I submit that such a dispute could, and should, have been settled without the expense of going to court, but Sheltered Housing Management Ltd continues to behave in an arrogant and unaccountable fashion. Following a complaint from a constituent, I wrote to Mr Miller of Sheltered Housing Management Ltd on 3 November last year; I am still awaiting a reply. I realise that, under recent legislation, if a majority of residents want to sack the manager and appoint someone else, they can do so, but that should only be a last resort. Even one resident, or a minority group of residents, within a tenement should have the right of redress without having to go to court. Amendment 79 therefore seeks to set up an ombudsman service to try to solve such disputes without court action. As members will see from subsection (4) of the section that amendment 79 would introduce, regulations made under the section may provide that an application to the sheriff may not be made unless the applicant has already sought to have the agreement resolved through the offices of the ombudsman.
I would hope that the Executive will respond positively to my amendment and I hope that the Parliament will accept it in the interests of justice, not just for my constituents but for others who, I am sure, are in a similar situation in many other constituencies throughout Scotland.
I move amendment 79.
I want to say a few words on amendment 79 because I have a great deal of sympathy for Dennis Canavan's proposal. In my constituency, there is a high number of landlords, and in particular absentee landlords, some of whom are good landlords but a minority of whom are not and who are not really interested in maintaining or making improvements to their properties. We have even had cases in which that has resulted in the demolition of a building.
There are some issues that might not be dealt with in the spirit of the Tenements (Scotland) Bill and, if things were unclear, it would be useful to be able to take such matters to a third party to be able to talk out the issues. One of the issues of which I am thinking is the fact that, if a social landlord owns more than half the properties in a tenement and there is a minority of owner-occupiers in the block, in a vote, some people would be voting on a financial burden that they would have to pay while others would be voting on a bill that would be picked up by someone else. The decision in such a vote might seem unfair.
Therefore, I support the idea that, in certain circumstances, there should be a third party to whom tenants and owners should be able to go for mediation.
I, too, am not unsympathetic to what Mr Canavan seeks to achieve. However, my reservation is twofold. The bill goes a long way towards eradicating many of the difficulties that have plagued tenemental ownership and there are remedies in the bill that might have been relevant to and welcomed by Mr Canavan's constituents all those months ago. My principal concern is that an ombudsman is not a way to address that issue because I suspect that people in the position of Mr Canavan's constituents are looking for enforceable solutions. The role of ombudsman does not provide that, whereas the bill contains available remedies.
For that reason, I am unable to support amendment 79, but I am sympathetic to the reasons for its being lodged.
Like other members who have spoken, I support the intention of amendment 79. Mr Canavan's constituents' terrible experiences demonstrate the need for the Executive to take action on mediation. Those are views that many members share and Labour members on the committee raised the issue with the minister. We believe that there is a need for the statutory provision of mediation, not only under the bill, but under other bills and acts, such as the Antisocial Behaviour etc (Scotland) Act 2004. For that reason and because of the assurances that we received from the minister that the Justice Department is carrying out research into mediation, we decided that the bill is not the right vehicle for the inclusion of mediation. However, it is something that the Executive needs to consider and introduce so that people do not always have to have recourse to the courts but are able to sort their disputes out amicably and quickly without too much emotional or financial cost.
Like Annabel Goldie, Pauline McNeill and others, the Scottish National Party is sympathetic to what Mr Canavan proposes. There is a significant number of areas, not only in Falkirk, where there are problems.
I am grateful to the minister for taking time to discuss matters with me and for letting me hear the Executive's position. Our view is that it would be wrong to embark on a parallel course of action to that approach. It appears that ombudsmen are a last court of appeal to some extent; they are involved after mediation has been tried, after litigation has taken place and where there is no other avenue or recourse for an individual. To have a parallel route might simply create more problems.
What is important is that, as the minister has assured me, we will initially attempt to deal with matters by mediation. If that is unsuccessful, there will be the right to litigation, but to have a further right of appeal to an ombudsman after that is not required. If, at some stage in future, it is felt that an ombudsman is required because mediation has been attempted and has failed and litigation has been tried and been unsuccessful, perhaps there should be an ombudsman. The idea that we could justify yet another ombudsman in a small country dealing with a limited number of cases seems to me to be untenable, but the role could be considered as part of an overall ombudsman for individual rights.
We must take cognisance of the valid points that Mr Canavan made. I am in tune with the Executive's approach that mediation should initially be tried. If that fails, there is litigation. That is the way to settle disputes, not a twin-track approach that may result in greater difficulties.
I agree with Kenny MacAskill and others. I have much sympathy for Dennis Canavan's position; it is a pity that he did not raise the issue at stage 1, because that would have given us a full opportunity to debate the situation and we might have asked some of our witnesses what they thought of it. The minister was fairly receptive to the Justice 2 Committee's views and we might have considered and incorporated the proposal. However, Kenny MacAskill is right: if we feel that the situation is causing a problem in the future, I am sure that we will be more than happy to return to it.
I will deal first with the amendments on the ombudsman, but I will return to the specific situation that Dennis Canavan described.
The Executive does not believe that an ombudsman for tenement disputes is necessary. The evidence is that few tenement disputes end up in the sheriff court and it is hoped that the bill will make disputes among owners, which are typically over repayment for repair work, become increasingly rare.
Section 6 makes it clear that the sheriff court is the place in which to determine legal issues that relate to the operation of the management scheme for a tenement, such as whether a scheme decision was validly made, whether it related to scheme property and who is liable for the cost of repair.
Section 5 permits an owner to apply to the sheriff for an order to determine whether a scheme decision by a majority of owners in a tenement should be annulled because it was unfairly prejudicial to an owner or not in the best interests of all owners.
I note that amendment 79 would make it necessary for owners to seek the proposed ombudsman's assistance only in the case that section 5 deals with and not in the section 6 case. I suggest that that makes the amendment incoherent.
The Executive acknowledges the valid argument for making available to tenement dwellers an alternative method to resolve disputes that does not involve the expense and stress of raising an action in the sheriff court. In fact, the housing improvement task force suggested that in some cases groups of owners might find it helpful to obtain outside assistance to resolve disputes about work that needs to be undertaken.
The Executive agrees that people should be encouraged to resolve disputes without going to the court and is keen to raise awareness of alternatives that are already available. There is therefore no need to create an ombudsman for tenements. As Karen Whitefield said, the Executive recently published a booklet that gives information and advice on alternative dispute-resolution methods. That information is also available online.
We are working with organisations such as Scottish Mediation Network to develop awareness of mediation and to support the growth of mediation services throughout all sectors. We already support mediation projects in several areas. For example, at the sheriff court here in Edinburgh, we are considering options for encouraging the greater take-up of mediation and making the link between people who are willing to use mediation and the service providers that are available.
I take issue with Mike Pringle. The matter that Dennis Canavan raises was brought up in committee; my colleague Ken Macintosh asked several questions about it and brought it to our attention. For that reason, we examined the matter, but we decided that the bill deals with ownership in tenement blocks, whereas occupiers of shared-equity properties, for example, which may be what Dennis Canavan speaks about, do not own the properties—they own equity shares in a company. We therefore felt that the bill was not the place to deal with the issue. However, I have heard the concerns that Dennis Canavan and my colleague Ken Macintosh have expressed and we are happy to look further into whether we could resolve the situation. However, it is a complicated matter and one for which it may be difficult to provide answers without creating unwelcome side effects, so we will have to consider it carefully. I do not think that the amendment that is in front of us today addresses that specific, so I ask members not to support amendment 79 because other methods, such as mediation, might be preferable.
In response to Pauline McNeill's point about an owner who owns the majority of flats within a tenement, we believe that it would be difficult to interfere with the voting process along the lines of who the owners are and to restrict particular owners because they own more than one flat. It is only owners who would vote—it would not be tenants within the properties—so each owner would have equal access to voting rights. We think that that is the fairest way to deal with the issue.
I ask Dennis Canavan to wind up the debate and to indicate whether he will press amendment 79.
I listened carefully to participants in the debate and in particular to what the minister had to say, but I am not convinced.
I welcome the fact that the Executive is at least considering introducing its own measures for mediation in housing disputes, but that should not exclude the acceptance of my amendment. If at some future date it is felt that the powers of my proposed ombudsman should be extended or amended, so be it. The Executive could introduce regulations for parliamentary approval to bring such amendments into effect. I take on board the criticism that we are perhaps in danger of setting up too many ombudspersons, but I would certainly be in favour of there being one ombudsperson for all disputes relating to housing matters. Although amendment 79 aims specifically to set up an ombudsman service for tenements, it could be extended at a later date to include other types of complaints relating to housing.
Annabel Goldie expressed some sympathy for the purpose of my amendment—I am grateful to her for her sympathy—but she argued against the amendment on the grounds that the findings of the ombudsman would not be legally enforceable. However, that is the case with most of the ombudsmen who are in existence, whether in the public sector or the private sector. That is not sufficient reason for not setting up an ombudsman in the first instance. In some cases, the ombudsman might be able to resolve the dispute in a voluntary fashion without it having to go to court, but if the ombudsman's intervention could not solve the dispute, either party would still have the right to seek legal action through the courts.
For all those reasons, I hope that Parliament will accept amendment 79. I press my amendment to a vote for two reasons: first, I think that it is an excellent amendment and, secondly, I want to test the new-fangled electronic voting system to ensure that it works.
On that basis, I am sure that we are all obliged to Mr Canavan.
The question is, that amendment 79 be agreed to. Are we agreed?
No.
There will be a division.
For
Ballance, Chris (South of Scotland) (Green)
Canavan, Dennis (Falkirk West) (Ind)
Fox, Colin (Lothians) (SSP)
Harvie, Patrick (Glasgow) (Green)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Scott, Eleanor (Highlands and Islands) (Green)
Sheridan, Tommy (Glasgow) (SSP)
Swinburne, John (Central Scotland) (SSCUP)
Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)
Against
Adam, Brian (Aberdeen North) (SNP)
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Finnie, Ross (West of Scotland) (LD)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lochhead, Richard (North East Scotland) (SNP)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McFee, Mr Bruce (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Morgan, Alasdair (South of Scotland) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Mundell, David (South of Scotland) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robison, Shona (Dundee East) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 9, Against 93, Abstentions 0.
Amendment 79 disagreed to.
The system works.
Section 5—Application to sheriff for annulment of certain decisions
Amendment 80 not moved.
Group 4 is on applications to the sheriff for annulment of certain decisions. Amendment 3, in the name of the minister, is grouped with amendments 4, 5 and 37.
I am sure that we are all grateful to Dennis Canavan for that experience. Those who thought that the Tenements (Scotland) Bill was not important have not yet had that experience.
Amendments 5 and 37 will clarify who can apply to the sheriff court under section 5 for annulment of a decision that is taken by a majority of owners under whichever management scheme applies to the tenement. Although the bill ensures that majority voting will become the norm for tenements in Scotland, the power of the majority will not be unfettered, as an individual who did not vote in favour of a decision will have the right to apply to the sheriff for an annulment of a decision of the majority. The sheriff will be able to grant an annulment if he or she is satisfied either that the relevant decision is not in the best interests of all the owners taken as a group, or that it is unfairly prejudicial to one or more of the owners.
Amendment 5 provides that those who can seek to have a majority decision overturned are, first, the owner at the time that the decision was made and, secondly, a new owner. The owner at the time that the decision was made may not have been in favour of the decision or may have expressed no view, perhaps because they were not present. A new owner who was not the owner at the time of the decision must also be included to deal with the situation of a change in ownership because, under section 11, the incoming owner may be severally liable with the former owner.
Amendments 3 and 4 reflect the new definition of a management scheme that will be introduced by amendments 33 and 43, which will be discussed under group 14. Amendments 3 and 4 simply make it clear that all tenements will be subject to a management scheme, whether that be a tenement management scheme, the development management scheme, the burdens in the title deeds or a combination of the burdens and the individual rules of the tenement management scheme.
I move amendment 3.
Amendment 3 agreed to.
Amendments 4 and 5 moved—[Mrs Mary Mulligan]—and agreed to.
Group 5 is on the meaning of "owner". Amendment 6, in the name of the minister, is grouped with amendments 7, 34 to 36 and 41.
Amendments 6 and 7 will clarify that if two or more persons own a flat, either or any of them may raise an action in the sheriff court under section 5. The amendments will also make it clear that the 28-day period within which an application to the sheriff must be made cannot be started for all co-owners by service of notice of a decision on just one of them. The purpose of the amendments is to protect each owner where there are two or more co-owners of a flat. Each owner must have equal rights and the action or inaction of a co-owner must not remove those rights.
The remaining amendments in the group are technical drafting amendments that are designed to ensure that the references to "owner of a flat" and
"owner of a part of a tenement"
work properly.
I move amendment 6.
Amendment 6 agreed to.
Amendment 7 moved—[Mrs Mary Mulligan]—and agreed to.
Group 6 is on the giving of notice. Amendment 8, in the name of the minister, is grouped with amendments 46, 57 to 59 and 71.
Amendments 46 and 71 will make a technical change to the rules for giving notice to owners of decisions that are made under the bill or the tenement management scheme. Section 25A provides that a notice can be sent to the flat in question if the name of the owner is not known, but it is of course possible for the owner's name to be known while his or her whereabouts are a mystery. Amendments 46 and 71 will provide that, in that case, it will be sufficient for the notice to be sent to the flat. However, the person who sends the notice will have to have made "reasonable inquiry" as to where the owner is.
Amendments 8 and 57 to 59 are technical drafting amendments that will ensure that the language that is used in the bill is consistent.
I move amendment 8.
Amendment 8 agreed to.
Section 8—Duty to maintain so as to provide support and shelter etc
Group 7 is on support and shelter: maintenance of parts in common ownership. Amendment 9, in the name of the minister, is in a group on its own.
Section 8(1) provides that the owner of any part of a tenement building is obliged to maintain his property if it provides support or shelter to any other part of the tenement. That is a restatement and replacement of an existing rule under the common-law doctrine of common interest. Section 8(1) imposes a duty on each and all of the owners to look after, for example, the roof, but does not permit any one pro indiviso owner—which to you and me means co-owner—to maintain it. If the roof is common property, the co-owner needs the consent of all the other owners, unless the repair is a necessary one. Amendment 9 will allow a co-owner to carry out maintenance to common property without the consent of the other owners in order to comply with section 8.
I move amendment 9.
Amendment 9 agreed to.
Section 10A—Determination of when an owner's liability for certain costs arises
Group 8 is on the determination of when liability for certain costs arises. Amendment 10, in the name of the minister, is grouped with amendments 11 to 20 and 23.
This group of amendments was prompted by concerns that members of the Justice 2 Committee raised when it considered the bill at stage 2. Section 11 deals with the apportionment of liability for repairs and other costs when a flat is sold and makes it clear that an owner does not cease to be liable when he or she ceases to own a flat. However, section 11 was framed on the basis that incoming owners would become severally liable with the seller for outstanding liabilities in relation to the relevant flat, although the buyer would have a right of relief against the seller. Concerns were expressed at stages 1 and 2 that an incoming owner might be exposed to large and unexpected bills for repair work if a seller did not disclose the existence of such a liability and then disappeared without trace. The buyer would then, in effect, be solely liable for work that was done before he or she became owner of the flat.
The amendments in this group will allow any owner in a tenement to register a notice in the property registers to make it public that works have been or may be carried out to the tenement. If there is no notice, the incoming purchaser will not be liable for the costs of any work carried out before he or she became an owner. If there is a notice, he or she will be alerted to the fact that there might be an outstanding liability for the work. The purchasing solicitor will, no doubt, ask the seller what that is about. If necessary, a sum can be retained from the purchase price to cover the liability, so the purchaser will be protected, which is what the committee asked us to ensure during stage 2. The notice will also protect the other owners in the tenement because, when a notice is registered, liability will pass to the incoming owner as originally proposed in section 11. The proposals apply only to maintenance work that has already been carried out by the owners.
I apologise, Deputy Presiding Officer. I believe that I have skipped a grouping and am speaking to group 9 rather than group 8.
Please continue speaking to the amendments that you are currently dealing with.
The notice procedure is set out in amendments 22 and 24. To be effective against a new order, the notice will have to be registered at least 14 days before the incoming owner becomes the new owner in order to allow time for the property registers to be searched by solicitors for purchasers. The notice will be in a form specified in amendment 72. Amendment 21 is consequential and amendments 38, 42 and 45 are technical.
At stage 2, Nicola Sturgeon envisaged that there should be a financial limit on liability and the notice procedure should not apply until that limit had been exceeded. Although the Executive was originally attracted to the idea of there being a financial limit, we now feel that that would be undesirable. If a limit of, say, £1,000 were imposed, we suspect that purchasing solicitors would simply retain that sum in every case, which would have the effect of distorting the conveyancing system. The other reason for not having a limit is that the incoming owner might be faced with a number of competing demands for a number of repairs from various owners. If the limit applied to all the various repairs, it would not limit the new owner's liability. I suggest that all of that would be unnecessarily complicated, which is why we have not agreed to the suggestion at this stage. I hope that that will be acceptable to the committee members.
I also hope that the committee members will feel that the Executive's proposed amendments to section 11 will provide the kind of protection to incoming owners that they sought and offer an acceptable solution that balances the competing interests of new owners and other owners in a tenement if there is an outstanding liability.
Shall I move amendment 21?
No, you should not move amendment 21 at this stage. I thought that it would make sense for you to complete your speech for the sake of the coherence of the debate and the Official Report.
I would like you now to address the amendments in group 8. Members who want to speak about the amendments in group 9 will be able to do so when we have disposed of the amendments in group 8. I should not think that it will be necessary for you to repeat any of the points that you have just made.
Group 8 is a highly technical grouping of amendments. Amendments 10, 11, 13, 15, 17 and 18 amend parts of section 10A so that references to "scheme costs" are changed to "relevant costs". Members will be aware that rule 4 of the tenement management scheme refers only to "scheme costs" but, in cases in which the management scheme in operation for a tenement is wholly or partly made up of burdens contained in the title deeds of the tenement, it is possible that the burdens might go further than the scheme. At present, burdens that do so would not come within the scope of section 10A and, as a consequence, the rules in that section on determination of liability would not apply. The amendments will alter section 10A so that it will now cover cases in which the burdens in the title deeds are more extensive than the provisions of the tenement management scheme.
Amendment 23 is consequential and amendment 12 relates to the time at which an owner's liability for certain costs arises. Section 10A(4) is on costs recoverable as a result of statutory notice. Subsection 6 relates to work instructed by a manager and subsection 1 relates to work or other costs that arise from the scheme decision.
I move amendment 10.
No member has asked to speak on group 8.
Amendment 10 agreed to.
Amendments 11 to 20 moved—[Mrs Mary Mulligan]—and agreed to.
Section 11—Liability of owner and successors for certain costs
We now come to group 9. Amendment 21, in the name of the minister, is grouped with amendments 22, 22A, 24, 81, 38, 42, 45 and 72. I require the minister to move amendment 21. I do not think that it is necessary for her to say anything further.
Amendment 21 moved—[Mrs Mary Mulligan].
I come to the aid of the minister—she is not the first person to become confused by the Tenements (Scotland) Bill. There were many furrowed brows and perspiring heads in the Justice 2 Committee.
The Executive's amendments to section 11 are welcome, as they acknowledge the concerns of the Justice 2 Committee. As the minister indicated, two amendments were lodged at stage 2 to try to avoid the situation in which a hapless purchaser becomes liable for a seller's obligations without knowing anything about it. I appreciate the attitude that the minister has adopted, as the amendments that have been lodged in her name accept the full spirit of the concerns that were expressed by the Justice 2 Committee and which I personally advocated as a member of that committee.
The reason why I lodged amendment 22A is that even though the Executive's amendment 22 is excellent, I am trying to make it a little better. Any purchaser who is buying a property, which is an important financial commitment, wants to know as soon as possible what the likely obligations of acquiring that property will be. Under the Executive's amendment, the purchaser will be liable but they will at least know about that liability because a notice can be registered until 14 days before the date of settlement. I thought that it might be desirable, for the sake of the purchaser, to make that date a little earlier, so my amendment 22A seeks to bring the date forward to the date of conclusion of missives.
Section 11 probably exercised the committee more than any other section of the bill. There was considerable discussion on it and a considerable number of people gave evidence. I was certainly persuaded to agree with the committee's view. In my experience as a councillor, purchasers came to me on two occasions to ask me to resolve problems whereby owners who had sold their properties had disappeared. I am delighted that the minister listened and has lodged amendments at stage 3. They are different from the amendments that were lodged by Annabel Goldie and Nicola Sturgeon at stage 2, and what we now have is something that will work extremely well for purchasers, who were in an invidious position. The amendments will oblige not only sellers but sellers' lawyers to ensure that they give the information to the purchaser and the purchaser's solicitor at the point of sale. That can only benefit the huge number of people throughout Scotland who purchase tenement flats.
I concur with the points that Annabel Goldie made; the amendments to section 11 are welcome. We can never make the purchase of property risk free—given the circumstances and costs involved, there will always be difficulties—but the law can seek to make matters as transparent as possible and to make information readily available so that people can find out what the factual situation is and can get a clear remedy as quickly as possible. That is the purpose of section 11, and it is greatly welcome.
On the points that Annabel Goldie made on her amendment 22A, I had the opportunity of discussing matters with the minister, and I will be supporting the amendment. The minister may be technically correct in saying that matters are addressed and clarified in the schedule, but terminology is important. People do not like to have to look at schedules to find out what is being referred to.
The terminology of missives is quite clear in Scots law, and it is understood, not just by practising lawyers but by those who participate in the process, that there are two aspects to the purchasing of property: the conclusion of missives and the creation of the contract and, subsequently, the handing over of the property and the passing on of the money. The minister is correct to say that that is referred to in the schedule, and it could be argued that the nomenclature change proposed by Miss Goldie is superfluous, but it is important that matters are as clear as possible. Section 11 should be as transparent as possible, and we should make clear the position to which we refer, without having to flick through several pages.
The minister may be legally correct, but in the interests of clarity and transparency Miss Goldie's amendment 22A is welcome. It will not undermine the ethos of the bill, but it will make the bill more accessible to lawyers and other practitioners who flick through it, by making it clear that risk transfers when missives are concluded.
I realise that I am taking my life in my hands by discussing legal points with two lawyers, but I will do it anyway.
I acknowledge that Annabel Goldie's amendment 22A is meant to be helpful. The concern is that the bill's definition, which refers to the date when the new owner acquired right to the flat, might give rise to confusion, and that providing for the date on which "missives were concluded" might be more certain. However, I do not share that concern. The phrase "acquisition date" is the established phrase for the date on which a purchaser acquires right to a property. It is familiar to conveyancing solicitors from legislation such as the Conveyancing and Feudal Reform (Scotland) Act 1970—with which I am sure all members are familiar—and it has been used generally in recent legislation. It is also used elsewhere in the bill. Essentially, a person has right to a flat once that person has delivered disposition for that flat. We would prefer to stick with the established definition, which is in line with other statutes.
Moreover, I suggest in the nicest possible way that amendment 22A is defective, because it deals only with the normal purchase and sale situation where there will be missives of sale. Not all transfers of flats will require missives, for example transfers of property following the owner's death. I ask Annabel Goldie not to move amendment 22A.
Amendment 21 agreed to.
Amendment 22 moved—[Mrs Mary Mulligan].
Amendment 22A moved—[Miss Annabel Goldie].
The question is, that amendment 22A be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Davidson, Mr David (North East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fabiani, Linda (Central Scotland) (SNP)
Fergusson, Alex (Galloway and Upper Nithsdale) (Con)
Fox, Colin (Lothians) (SSP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Goldie, Miss Annabel (West of Scotland) (Con)
Grahame, Christine (South of Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Ingram, Mr Adam (South of Scotland) (SNP)
Johnstone, Alex (North East Scotland) (Con)
MacAskill, Mr Kenny (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Maxwell, Mr Stewart (West of Scotland) (SNP)
McFee, Mr Bruce (West of Scotland) (SNP)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Neil, Alex (Central Scotland) (SNP)
Robison, Shona (Dundee East) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Sheridan, Tommy (Glasgow) (SSP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Alexander, Ms Wendy (Paisley North) (Lab)
Baker, Richard (North East Scotland) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
The result of the division is: For 29, Against 57, Abstentions 0.
Amendment 22A disagreed to.
Amendment 22 agreed to.
Amendment 23 moved—[Mrs Mary Mulligan]—and agreed to.
After section 11
Amendment 24 moved—[Mrs Mary Mulligan]—and agreed to.
Section 12—Prescriptive period for costs to which section 11 relates
Amendment 81 moved—[Mrs Mary Mulligan]—and agreed to.
Section 14—Access for maintenance purposes
Amendment 25 is grouped with amendments 26, 28, 30, 39, 47 and 48.
This group of amendments deals with the installation of new services in tenements. A distinctive feature of tenements is that they have a great deal of common property, such as the common close and the stair. Under the common law, it would not be possible to carry out any alteration or addition to common property without the consent of all the owners. That means that an owner could not install a new service without the consent of all of his or her neighbours. Special legislation is already in place to cover some services such as electricity. Members might recall that in the consultation draft of the bill, there was provision to cover gas pipes and television aerials. We took that out before the introduction of the bill because those matters are reserved, and we hope that provision will soon be made for them at Westminster by a section 104 order under the Scotland Act 1998. However, we think that it is wise to make provision for other devolved services in future.
Amendment 30 proposes that an owner will be able to install services, subject to any of the procedures that can be prescribed by Scottish ministers and as long as the services have been prescribed. Amendments 47 and 48 are technical amendments. Amendment 26 makes it clear that an owner will be able to access another's flat for the purpose of installing service pipes and suchlike. Amendment 39 is a technical amendment and amendments 25 and 28 are consequential on the new definition of management scheme introduced by amendment 33.
I move amendment 25.
Will the minister clarify a point in relation to amendment 30? I know that the whole spirit of the bill is such that titles deeds should have precedence where they are relevant. Am I correct in interpreting amendment 30 as meaning that its provisions would overrule title deeds?
The member is correct that the spirit behind the legislation seeks to ensure that where title deeds have something to say on an issue, they will take precedence. However, where there is a gap, the provisions in amendment 30 will fill in that gap.
Amendment 25 agreed to.
Amendment 26 moved—[Mrs Mary Mulligan]—and agreed to.
Amendment 27 is grouped with amendments 31, 40, 44 and 73 to 77.
This group of amendments is intended to make the provisions relating to the sale of an abandoned tenement building operate more effectively.
Amendments 27 and 31 will ensure that it is possible to get access to an abandoned tenement. That is to avoid a situation in which the sale of an abandoned tenement might be frustrated because of a lack of access, and the building might then become blighted. Amendments 73 and 74 are drafting amendments. Amendment 75 provides a right of appeal to the Court of Session against a sheriff's decision to grant or to refuse to grant the power of sale under the schedule 2 procedure.
Amendment 76 provides not only that the power of sale will be of no effect unless it is registered within 14 days, but that it will not take effect until 42 days after it has been registered. The aim of the amendment is to avoid possible problems if more than one owner is trying to sell an abandoned tenement.
Amendment 77 obliges the person to whom a power of sale is granted to erect a for sale sign at the site of the property when advertising the sale. The sign will give the details of the selling agent.
Amendment 40 makes it clear that any reference to an owner in relation to the power of sale provisions in schedule 2 will be construed as a reference to any person who owns a flat either solely or in common with another.
Amendment 44 is a technical drafting amendment that allows "power of sale order" to be used as shorthand for the procedure under schedule 2.
I move amendment 27.
Amendment 27 agreed to.
Amendment 28 moved—[Mrs Mary Mulligan]—and agreed to.
Section 15—Obligation of owner to insure
Amendment 29, in the name of the minister, is in a group on its own.
Section 15 of the bill requires each owner in a tenement to insure their flat for reinstatement value, rather than just market value, against the list of risks to be prescribed by Scottish ministers. The bill currently provides that if the title deeds of the tenement require the tenement building to be insured by way of a common policy of insurance, that common policy must be used in order to satisfy the duty to insure under the bill.
Amendment 29 was prompted by discussion of section 15 by the Justice 2 Committee and, in particular, consideration of an amendment that was lodged at stage 2 by the committee's convener, Annabel Goldie. She wished to allow owners in a tenement to have the flexibility to use a combination of a common policy of insurance and individual policies, provided that the cumulative cover provided by all the policies covered the reinstatement value of the building. That would be the case in circumstances where the relevant title deeds required there to be a common insurance policy for the whole tenement.
The background to Annabel Goldie's amendment was that common policies are often stipulated in title deeds, but not necessarily for reinstatement value, and are therefore often supplemented by individual policies. I am led to believe that that is the case in the west of Scotland in particular, where properties are more commonly managed by a professional factor.
Amendment 29 would amend section 15(2) of the bill so that the requirement to insure would be fulfilled if the insurance cover were provided in whole or in part by a common policy of insurance. That would allow owners to have a combination of common and individual policies of insurance, regardless of whether the title deeds contained provision for a common policy. I hope that Annabel Goldie will feel able to support this change, because it gives effect to the purpose of the amendment that she lodged at stage 2.
I move amendment 29.
I am positively overwhelmed by such uncharacteristic adulation from the Executive. Once again, on behalf of the Justice 2 Committee I extend to the minister my appreciation of the Executive's willingness to take on board important arguments. In lodging amendment 29, the Executive has done a great deal to remove possible restriction and inflexibility faced by the individual flat owners. I welcome the Executive amendment.
Amendment 29 agreed to.
After section 15
Amendment 30 moved—[Mrs Mary Mulligan].
The question is, that amendment 30 be agreed to. Are we agreed?
No.
There will be a division.
For
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Baird, Shiona (North East Scotland) (Green)
Ballance, Chris (South of Scotland) (Green)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West) (Ind)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Cunningham, Roseanna (Perth) (SNP)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fox, Colin (Lothians) (SSP)
Gibson, Rob (Highlands and Islands) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Glen, Marlyn (North East Scotland) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Harvie, Patrick (Glasgow) (Green)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Kane, Rosie (Glasgow) (SSP)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Leckie, Carolyn (Central Scotland) (SSP)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Maclean, Kate (Dundee West) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
May, Christine (Central Fife) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Pringle, Mike (Edinburgh South) (LD)
Purvis, Jeremy (Tweeddale, Ettrick and Lauderdale) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North East Fife) (LD)
Smith, Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Swinburne, John (Central Scotland) (SSCUP)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
Milne, Mrs Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 70, Against 9, Abstentions 0.
Amendment 30 agreed to.
Section 20—Sale of abandoned tenement building
Amendment 31 moved—[Mrs Mary Mulligan]— and agreed to.
Section 22—Amendments of Title Conditions (Scotland) Act 2003
Amendment 32, in the name of the minister, is grouped with amendments 49, 50 and 78.
Amendments 32, 49, 50 and 78 are technical amendments to the Title Conditions (Scotland) Act 2003. Although amendment 78 is lengthy, most of its provisions were already in the bill after stage 2. They were previously contained in section 22, but it is thought that gathering together all the amendments to the 2003 act in a schedule would be more convenient. Of the new amendments, some rectify minor drafting errors or omissions in the 2003 act and others ensure consistency with amendments made to the Tenements (Scotland) Bill. The most notable of those is on the liability of incoming owners, as discussed earlier in the context of amendment 22.
Refinements are also made to the 2003 act's provisions that affect rural housing and housing estates. In relation to rural housing, the 2003 act specifies that rural housing bodies must have as one of their objectives or functions the provision of housing on rural land or rural land for housing. For example, that would exclude a body that, although it provided rural land, did not have that as an objective or function. The amendment will allow bodies with a wider function to be designated as rural housing bodies, although it will only be possible for rural housing burdens to be created in rural areas.
The amendment to section 53 of the Title Conditions (Scotland) Act 2003 is highly technical. Its purpose is to make it clear that, if a developer or local authority, for example, is using section 53 of the act to extend a common scheme of real burdens, it will not be necessary for them to nominate benefited properties as under the general rules set out in section 4 of the act.
I move amendment 32.
Amendment 32 agreed to.
After section 23
Amendment 33 is grouped with amendment 43.
The amendments tighten up the definition of a management scheme and give it more prominence. The concept that every tenement will in future have a management scheme to assist in common decision making is a fundamental aim of the bill. Amendment 33, therefore, moves the definition of management scheme from the interpretation section to a section of its own.
Amendment 43 makes a slight modification to the definition to ensure that any specific provisions that the title deeds of the tenement make on improvements to the tenement are included in the management scheme so that they benefit from the general provisions of the bill.
I move amendment 33.
Amendment 33 agreed to.
Section 24—Meaning of "owner", determination of liability etc.
Amendments 34 to 41 moved—[Mrs Mary Mulligan]—and agreed to.
Section 25—Interpretation
Amendments 42 to 45 moved—[Mrs Mary Mulligan]—and agreed to.
Section 25A—Giving of notice to owners
Amendment 46 moved—[Mrs Mary Mulligan]—and agreed to.
Section 27—Orders
Amendments 47 and 48 moved—[Mrs Mary Mulligan]—and agreed to.
Section 29—Short title and commencement
Amendments 49 and 50 moved—[Mrs Mary Mulligan]—and agreed to.
Schedule 1
Tenement Management Scheme
Group 15 is on the meaning of "scheme property." Amendment 51 is grouped with amendments 52 to 55.
This group of very technical drafting amendments is intended to clarify the definition of scheme property in the tenement management scheme in schedule 1. The three classes of scheme property, which are set out in paragraphs (a), (b) and (c) of rule 1.2, could all be present in the same building. However, the word "or" tends to infer that the items in the list are alternatives, when they are in fact collective. As a result, amendment 54 seeks to remove the word "or" from rule 1.2(b). Amendments 51, 52, 53 and 55 seek to reflect the fact that reference to scheme property will always relate to a particular tenement.
I move amendment 51.
Amendment 51 agreed to.
Amendments 52 to 55 moved—[Mrs Mary Mulligan]—and agreed to.
Group 16 is on scheme decisions and costs. Amendment 56 is grouped with amendments 60 to 67.
These amendments seek to make a range of alterations to the rules of the tenement management scheme. The point of amendment 56 is to remove any ambiguity as to whether rule 2.3 includes cases in which the obligation in the title deeds is to pay rather than to maintain. As the bill stands, if the owner is not liable for the flat's maintenance, he does not get a vote in a scheme decision. The amendment seeks to make it clear that he or she would be entitled to a vote under rule 2 procedures only if the terms of the burdens are such that he or she is either obliged to maintain or to pay for maintenance. Amendment 56 seeks to bring the language of rule 2.3(b) into line with rule 1.2(b).
Amendment 60 seeks to allow owners to delegate any of their powers to a manager and to avoid the possibility that a restrictive interpretation will be applied to rule 3.1(d). Nevertheless, it is made clear that such a power could include the power to decide to carry out and instruct maintenance. Amendment 63 is a drafting amendment designed to clarify that, in cases in which a scheme decision gives authority to operate a maintenance account, that authorisation must be given to a manager or to at least two other persons. It seeks to bring the wording of rule 3.4(a) into line with rule 3.4(c).
Amendments 61, 64, 65 and 66 make the most noticeable changes in this group by permitting the owners of a majority of flats in a tenement to decide to install an entry system that can be operated from each flat. Allowing such facilities to be installed has clear security and amenity benefits that outweigh our general policy that improvements, as opposed to repairs, should be subject to the unanimous approval of all owners. I hope that Sarah Boyack, who raised the issue at stage 2, will welcome this amendment, which seeks to permit the installation of entry systems by a majority vote.
Rule 3.1 of the tenement management scheme lists the matters on which the owners in a tenement are permitted to make scheme decisions. Rule 3.1(g) permits owners to make a scheme decision to authorise any maintenance of scheme property that has already been carried out. Amendment 62 seeks to remove the words "by the owner" to avoid any danger that work carried out by a property manager or factor would be excluded from the operation of the rule.
Amendment 67, as I am sure members will be pleased to hear, is the final amendment of the day. It clarifies the redistribution of a share of costs where one owner is sequestrated or cannot be found. As the bill is currently worded, the other owners at the time that the redistributed share is recoverable would have to pay a defaulting owner's share. Amendment 67 imposes a liability on the owner of a flat and makes it clear that the other owners would only be owners who were together responsible for the rest of the cost of the repairs. That covers the situation that would arise when one of the flats was sold between the time when the owners became liable for the costs and the time when they discover that one of their number cannot pay.
I move amendment 56.
I am delighted that the minister has got a fix for us in the bill. The installation of entry systems is a practical issue and something that many of my constituents have problems with, particularly in the old town of Edinburgh and the city centre, where people have lots of amenity problems and where there are security and safety issues. It is a practical problem that people cannot currently get resolved, so I am delighted that amendments 61 and 64 will be made to the bill, if everybody supports them, which I am sure will be the case.
Door entry systems are crucial to improving people's quality of life as well as their personal security. They are also an important way of maintaining the quality of the tenement and of ensuring that maintenance is not continually interrupted by people doing the most appalling antisocial things in people's tenements. That is a real problem and something that we can solve today by voting for the minister's amendments. I am absolutely delighted about that.
Many tenements have multiple owners—not just individual owners, but the City of Edinburgh Council and housing associations—and people have been unable to get progress because at the moment everybody needs to sign up. By moving to a majority system, we are going to improve thousands of people's lives. I am pleased to support the amendments. There are people who will, in the next few months, achieve a real improvement in their quality of life. That is one of the improvements that we have brought about through the Tenements (Scotland) Bill, which I warmly welcome.
Like other members of Parliament, I went along as an interloper to the committee to plead with committee members to be interested. The committee was supportive and I am delighted that the minister has been able to find a technical solution. Sometimes a technical problem can remain a technical problem. Getting a solution is something that we should be grateful for.
Amendment 56 agreed to.
Amendments 57 to 71 moved—[Mrs Mary Mulligan]—and agreed to.
After schedule 1
Amendment 72 moved—[Mrs Mary Mulligan]—and agreed to.
Schedule 2
Sale under section 18(3) or 20(1)
Amendments 73 to 77 moved—[Mrs Mary Mulligan]—and agreed to.
After schedule 2
Amendment 78 moved—[Mrs Mary Mulligan]—and agreed to.
That ends consideration of amendments.