Plenary, 21 Nov 2002

Meeting date: Thursday, November 21, 2002

Official Report 712KB pdf

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Title Conditions (Scotland) Bill: Stage 1

Good morning. The first item of business is a debate on motion S1M-3188, in the name of Jim Wallace, on the general principles of the Title Conditions (Scotland) Bill.

The Title Conditions (Scotland) Bill is the second part of the Executive's programme of property law reforms, following the Abolition of Feudal Tenure etc (Scotland) Act 2000. The bill complements and completes the process of feudal abolition and will provide Scotland with a modern and simplified framework for the ownership of property.

It is worth dwelling for a moment on that issue. We are only a few months from the end of the first session of the first Scottish Parliament in 300 years. Provided that the Parliament agrees to the passage of the bill, by the time the session ends we will have modernised and reformed completely the system of land tenure in Scotland. The law will be simpler and easier to understand. That is no small achievement and all members of the Parliament can be proud of it.

The bill is a law-reforming bill. It is intended to reform the law in an area that affects large numbers of us, as it affects the rights of house owners and tenants, but that is not widely known or understood. Many of the terms that are used in the bill are not widely known or understood either. This is a highly technical area of law. For that reason, it is especially important that I pay tribute to the hard work of the committees of the Parliament—not least the Justice 1 Committee—that have examined the bill during its progress to date. I do not underestimate the task that the Justice 1 Committee has undertaken and will continue to carry out at stage 2. However, I believe that the committee has worked with a good spirit—I am sure that the Parliament will agree that it has produced a very good report.

I also mention the work of the Scottish Law Commission. The commission's report on real burdens laid the foundations for the bill. I record my appreciation of the commission's diligence and of the exhaustive work that it has undertaken in reviewing the law on title conditions and suggesting modernising reforms. The commission's report was published in 2000, following the enactment of the Abolition of Feudal Tenure etc (Scotland) Act 2000, which largely implemented the commission's recommendations on the abolition of the feudal system. The commission has also published a report on the law of the tenement, so it has carried out a comprehensive review of Scottish property law.

In the introduction to the consultation paper on the Title Conditions (Scotland) Bill, I wrote:

"Scotland is well served by its Law Commission and it is a source of great satisfaction to me that the Scottish Parliament now provides a legislative avenue by which the Commission's recommended reforms may be implemented."

Scots property law is distinctly different and separate from the law that applies in the rest of the United Kingdom. Members can imagine how long it would have taken for time to be found to deal with these measures at Westminster.

It may be helpful if I explain briefly what title conditions are and how they fit into the general structure of land regulation. Title conditions are conditions that apply to land ownership. In this context, land includes the buildings that stand on it. The most common type of title condition is the real burden. Others include servitudes and conditions in long leases. However, the bill is concerned principally with the law in respect of real burdens.

Despite its arcane name, a real burden is a practical legal tool. The use of real burdens is widespread. Most of us will have a real burden attached to our homes. We may be required to use our home for residential purposes only and be forbidden from using it to run a business. We may be prohibited from keeping pets or be obliged to keep our property in good order and repair. The title conditions on my property prohibit me from selling alcohol on the premises. Real burdens are important instruments for controlling and improving our quality of life.

The Justice 1 Committee's stage 1 report on the bill contains a large number of detailed observations. It is not possible for me to comment on all of them this morning. Indeed, the report helpfully invites me to write to the convener of the Justice 1 Committee on a number of matters. I am sure that members will be greatly disappointed when they hear that among the issues about which I have been asked to write to the convener is the possible reintroduction of section 14 of the School Sites Act 1841 and that I will not, therefore, refer to that issue in my speech.

Thank goodness.

I knew that there would be disappointment.

I will refer to some of the main issues that are highlighted in the report. When I gave evidence to the Justice 1 Committee, I indicated that we would be willing to reconsider some of the minor limits or time scales that are included in the bill. The committee suggested one or two changes. We accept that the limit on acquiescence should be changed from eight to 12 weeks. We have considered the committee's detailed proposals on sheltered housing and are prepared to drop the size of the majority that is required for the variation of core burdens in sheltered housing from 75 per cent to two thirds. We accept that the time limit for a manager burden in sheltered housing should be reduced from 10 to five years. We propose to take account of the committee's view that the limit should apply to all manager burdens except those attached to houses that were formally owned by a local authority or other registered social landlord. The Executive will instruct that amendments be lodged on all those matters at stage 2.

In the light of evidence that was given at stage 1, we have reconsidered the provisions of the bill covering common schemes. We intend to lodge an amendment that will clarify the operation of section 48 of the bill, which relates to burdens under a common scheme. That is a particularly complex area of law. In its stage 1 report, the committee exhorted us to re-examine the explanatory notes that cover the relevant sections in parts 2 and 4 of the bill. We will do that, because we recognise that practitioners will consult the notes frequently as they start to use the new procedures.

A moment ago, I mentioned sheltered housing. One of the aspects of the bill that has aroused most interest is the effect that the legislation will have on sheltered housing. I know that many owners in sheltered housing complexes have been concerned that the bill might not cover retirement developments. It might be useful to them if at this point I state definitively that the Executive firmly intends that all references to sheltered housing in the bill should be taken to include retirement housing.

The Justice 1 Committee recommended that we conduct a review of the operation of sheltered housing developments in Scotland. Over several years, the Executive has received numerous complaints about the management of owner-occupied sheltered housing. For that reason, a working group chaired by the then Scottish Office was established in 1997 to prepare a voluntary framework code of management practice for Scotland that ministers could endorse. Many of the organisations that gave evidence to the Justice 1 Committee were represented on that group. The code, which is much wider than the proposals in the bill, was published in 2000.

The bill gives owners certain rights that go beyond the recommendations of the code—for example, to change the manager of a sheltered housing development. In my view, it is too soon to institute a review of the operation of owner-occupied sheltered housing. The code, together with the elements of the bill that apply to owner-occupied sheltered housing, should be given time to bed in before we consider carrying out a review.

The committee suggested that the bill should stipulate a minimum age for occupation of owner-occupied sheltered housing and that there should be flexibility to adjust that age upwards. People can buy into different types of owner-occupied sheltered housing. If the bill stipulated a minimum age, the ability of prospective purchasers to choose the type of sheltered housing that is suitable to their needs would be reduced. People buying into a complex whose title conditions stipulate a minimum age for occupation will be aware of that when they make their purchase. In order to maintain the nature of the development, it should not be possible to change the age limit unless all owners agree. That is my view as set out in the bill.

Another aspect of the bill that has attracted some interest is the omission of a development management scheme from the bill as introduced. The draft bill by the Scottish Law Commission contained a model development management scheme, which was offered as an option for use in larger, more complex new developments, as opposed to normal tenements. The scheme would have had to be adapted to suit particular circumstances. Although it contains provisions on helpful and desirable aspects of a large development, such as an owners association, the appointment of a manager and financial arrangements, specific provisions would have had to be added on maintenance of the development's facilities.

It was not possible to include a development management scheme in the bill as introduced because it had become clear that that touched on a reserved matter. As the committee and Parliament are aware, the Executive has been engaged in negotiations with both the Scotland Office and the Department of Trade and Industry about progressing the matter. As a result, I am happy to announce that an amendment will be lodged at stage 2 to reintroduce the development management scheme as an option that developers and owners might wish to adopt. The details of the scheme that cover reserved matters will be contained in an order to be promulgated at Westminster.

At this point, it is worth touching on an associated matter on which the Justice 1 Committee took evidence—whether a particular management scheme should be imposed on all tenements irrespective of what the title deeds say. As I said earlier, a further bill in the programme will deal with the particular situation of tenements.

The draft tenements bill, which has been prepared by the Scottish Law Commission, does not propose that existing title deeds be superseded by any new management scheme. The commission's view is that many existing tenements have perfectly good arrangements for management and maintenance and that those should not be disturbed. It also thinks that it would be wrong to impose any one scheme on new tenements. The draft bill provides that every tenement must have a management scheme, so that there is a clear decision-making mechanism for owners to reach agreement about matters of mutual importance. The Executive will consult on the draft tenements bill in due course and it will want to take account of the views of the housing improvement task force when it does so.

Although the tenements bill will make specific and detailed provision for tenements, the Title Conditions (Scotland) Bill will also provide limited help. For example, where there is no provision in existing title deeds for reaching decisions, the bill provides that decisions on matters such as instruction of maintenance may be taken on a majority vote.

The Justice 1 Committee also suggested that we re-examine the practicalities of the creation of the new implied right in housing estates. That is a difficult issue and I will certainly write to the committee to set out my views in more detail. However, it might be useful for me to say a brief word now, because the matter is of general interest and affects many people.

The scenario will most often arise on a modern housing estate, which is likely to have burdens that say, for instance, that an individual owner may not run a business from their house, that they are not allowed to park a lorry in the drive or that they are expressly forbidden from keeping a large number of pets. All the owners will be bound by the same burdens. Indeed, many of them might have bought into the scheme because they were attracted by the general appearance and the standard of upkeep. In many estates, the burdens will have been laid down by the feudal superior, who will have reserved the right to enforce the burdens himself or herself.

With the passing of the feudal system, the question is what should happen to the superior's enforcement rights. If they are simply abolished and do not pass to anyone else, the burdens would simply disappear, because there would be no one to enforce them. That is a real issue; we were concerned about it because we thought that it could lead to a deterioration in the quality of life for those who live in such estates. We consulted fully on the question and gave it much thought before concluding that enforcement rights should be passed to neighbours.

Another aspect is the effect of the bill on many housing estates that were previously council estates and where some tenants have exercised the right to buy. Typically, the authority will have reserved enforcement rights to itself. Many burdens in former social housing estates are concerned with the maintenance of the property. Although facility burdens will be saved automatically, they relate essentially to common facilities. A requirement that an individual owner should maintain their house properly would not be saved. Members are well aware of the issue of the condition of many former council estates and the need to ensure that fabric does not deteriorate.

We took the view that we did not want to make matters worse by removing a sanction against those who do not look after their property, particularly in estates in which people have understood that the means would be available to ensure that property was well maintained. I understand the concerns of the Justice 1 Committee and of those who gave evidence to it that the expansion of enforcement rights might lead to a more cumbersome and expensive conveyancing system, but I do not accept entirely that those concerns are properly based. I shall write to the committee on that point, but it is worth flagging up now the fact that I am not disposed to alter the provisions of the bill on the matter.

The Law Society of Scotland confirmed to me this morning that it is to make further representations on that point, which is particularly complex. Before the minister writes to the Justice 1 Committee, will he kindly consider the Law Society's representation?

I certainly accede to doing that. We have a tight time scale for stage 2 and I encourage the Law Society to make representations soon. I want to give the points that it raises proper consideration.

The bill is extremely wide ranging. I move from the question of modern housing estates to the question of development value burdens and clawback for local authorities. As we indicated in the policy memorandum, that is an area in which we expect to lodge Executive amendments at stage 2. Local authorities often sell land subject to a feudal burden that restricts the future use of the land. However, the underlying purpose is not to restrict the use of the land, but to share in any windfall increase in its value. With the passing of the feudal system, it will no longer be possible for feudal burdens to be used for that purpose and therefore the question has arisen whether there should be other means to facilitate that.

The Executive has accepted that there is a valid case for permitting authorities to protect land sales and, by extension, public funds in such circumstances. We therefore propose to introduce amendments that will allow local authorities to enter agreements with landowners that would mirror closely those permitted to Scottish Enterprise under section 32 of the Enterprise and New Towns (Scotland) Act 1990, which is amended by section 101 of the bill. Those statutory land agreements would, like those that Scottish Enterprise employs, be the functional equivalent of real burdens, although they would not be subject to the law of real burdens.

Local authorities have argued that they would also like to be able to impose burdens on land when they sell it off cheaply for a specific restricted use that is intended to benefit a community. However, the Convention of Scottish Local Authorities has not suggested to us a definition of a burden that is sufficiently restricted. Too broad a definition would allow the feudal system to be recreated for local authorities alone, which we do not believe would be acceptable. It remains open to local authorities that wish to provide land for community or amenity purposes to lease the land, perhaps at a peppercorn rent, or to use a trust arrangement.

Will the minister explain why as a matter of policy the clawback arrangements to which he referred will be available to public authorities but not to private developers?

That arose out of specific concerns that were expressed to us, not least by local authorities that had noted that there was provision for local enterprise companies to enter into such arrangements. Like local enterprise companies, local authorities are most likely in the circumstances to have land that they would want to make available solely for the purposes of promoting economic development.

The bill is part of a wider programme of property law reform. It might be useful to indicate how we intend to implement the package and the time scales involved. Members are only too aware that the Abolition of Feudal Tenure etc (Scotland) Act 2000 has not yet been fully commenced. When that legislation was passing through the Parliament, members accepted that the commencement of the act should await the passage of the Title Conditions (Scotland) Bill and that the two pieces of legislation should be commenced at the same time. The Justice 1 Committee acknowledges that in its report.

However, I am keen that we press on with the implementation of the two pieces of legislation as soon as we can. It is acknowledged that the process of implementation is complex. A number of pieces of subordinate legislation have to be put in place before the transition of one system of property tenure to the other can start. It is clearly important that that transition be orderly. After all, we have waited 800 years for the change and we do not want to ruin it with undue haste. At the same time, we do not want to lose sight of the big picture. The object is to replace a system that is old fashioned and oppressive with one that is clear, modern and fair and we do not want to hang about.

I inform members that commencement of the transitional arrangements for the two pieces of legislation will be in the autumn of 2003. It was always envisaged that superiors and others who wished to preserve certain rights in the limited circumstances that the 2000 act specifies should have a reasonable period in which to do so. Given that two years have elapsed since the passing of the 2000 act, superiors have had considerable time in which to examine their titles and consider which rights they wish to preserve by the registration of notices under the act. In the circumstances, it seems right that the transitional period during which the requisite notices will be registered should not be any longer than necessary and should certainly not be longer than a year.

As the appointed day has to be one of the term days of Whitsun or Martinmas for the purposes of the extinction of feu duty, I propose that the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions (Scotland) Bill should both be fully commenced at Martinmas 2004—28 November 2004—which is two years and one week from today. That will be the appointed day on which the feudal system of land tenure in Scotland will finally come to an end.

When the Abolition of Feudal Tenure etc (Scotland) Act 2000 was passed, it was suggested that it would be linked with the Title Conditions (Scotland) Bill and a bill on the law of the tenement. What is happening about a bill on the law of the tenement?

The law of the tenement was another part of the package. It was never suggested that the proposed bill be linked to the commencement of the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions (Scotland) Bill. As I indicated, it is our intention to produce a consultation on the basis of the Scottish Law Commission's report on the law of the tenement. I cannot give a fixed date for that, but I hope that it will be sooner rather than later.

I welcome the abolition of the feudal system. However, as the minister pointed out, superiors will be able to continue to exercise their rights, albeit under another name. I notice that section 81 of the bill, which concern the powers of the Lands Tribunal for Scotland, will continue to allow X superiors to seek payments from the Lands Tribunal in exchange for the Lands Tribunal's discharging of feudal conditions. Does the minister agree that, in practice, that is one of the most controversial and unfair aspects of the feudal system? Does he believe that the bill goes far enough in preventing feudal superiors from continuing to obtain substantial payments in exchange for minutes of waiver?

As Fergus Ewing is well aware, such matters have been pored over in great detail. The circumstances in which the superior will be able to take the action that he has described will be very limited in comparison with what has been going on for centuries. There has to be some interest involved, as well as just the existing title.

Finally, I must deal with a formal matter. For the purposes of rule 9.11 of standing orders, I advise the Parliament that Her Majesty, having been informed of the purport of the Title Conditions (Scotland) Bill, has consented to place her prerogatives and interests, so far as they are affected by the bill, at the disposal of the Parliament for the purposes of the bill.

I move,

That the Parliament agrees to the general principles of the Title Conditions (Scotland) Bill.

I always thought that the bill would catch the imagination of members. Having served on first the Justice and Home Affairs Committee and then the Justice 1 Committee for some three or more years, I can say that the bill has proved to be one of the more complex, if not the most complex, pieces of legislation with which we have dealt.

Solicitor colleagues inform me that, while they were studying for their law degrees, lectures in conveyancing law were often those that had the poorest attendance. I now fully appreciate why that was the case. [Interruption.] Fergus Ewing says, "You can buy the notes."

I want to place on record my gratitude for the work of the clerks to the Justice 1 Committee in pulling together our report on an area that is new and complex to them as well. As always, they have done an excellent job. I also thank the committee's adviser, Scott Wortley, who has proven to be very enthusiastic about the bill and who has considerable knowledge of the area with which the bill deals. His assistance has been first class.

As the minister stated, the bill is one of a number of pieces of legislation that seek to reform property and conveyancing law in Scotland. Given that there were two years between consideration of the Abolition of Feudal Tenure etc (Scotland) Act 2000 and consideration of the Title Conditions (Scotland) Bill, it could be argued that it would have been better management to have run the two bills in tandem, or at least in closer proximity. However, I welcome the fact that the minister was able to announce that the appointed day has been agreed.

One of the issues that the committee highlighted is acquiescence. Acquiescence was a new topic for me and, I am sure, for a number of my committee colleagues. There are probably thousands of properties across Scotland in relation to which burdens have been breached without the benefited proprietor being aware of that. An expert in the field who gave evidence to the committee even admitted that he had breached his burdens without the benefited proprietor knowing and that he had no intention of advising the benefited proprietor of it.

I welcome the fact that the bill will provide some guidance on the time scale for benefited proprietors to object to such a breach. I welcome in particular the fact that the minister has taken on board the committee's recommendation that the time scale for that process should be extended from eight weeks to 12 weeks. It was conceivable that, after visiting their auntie in Australia or New Zealand for a month or two, someone might have come back to find that something had been taking place in a neighbouring property but that they could do nothing about it. The 12-week period will be more effective in helping to ensure that such scenarios do not arise.

The sunset rule caught the imagination of Maureen Macmillan to such an extent that I am tempted to call it the Maureen rule. However, that could be misconstrued. I am sure that some members will be unaware of the many burdens that might apply to their property. They might have an inclination to keep chickens, pigs and other forms of livestock, for example, but they might have a burden that prevents them from doing so. Although such burdens might have been appropriate at certain times in the past, it is clear that they are no longer required for many properties nowadays. I welcome the fact that the bill introduces a sunset rule that will allow the serving of notices of termination in relation to such burdens. I am sure that that will help to reduce the clogging up of titles by unnecessary burdens.

Core burdens have proved to be one of the bill's more contentious aspects. The committee received considerable representation on the issue, particularly in relation to burdens that regulate and manage facilities for elderly people. The minister will acknowledge, as committee members did, that the rules that apply to normal community burdens do not apply in the case of core burdens. Core burdens cannot be varied or discharged without agreement by a 75 per cent majority of those affected by the burdens.

I welcome the minister's announcement that he intends to lodge an amendment that will reduce the necessary majority to about two thirds of those affected. When the minister appeared before the committee, he indicated that he was sympathetic to such a reduction. In evidence, we heard about the interesting example of residents in the Eastwood area who had been trying to change a burden and had managed to achieve a vote of about 73 per cent in favour of the change, which is a significant majority. If he speaks in the debate, I am sure that Ken Macintosh will refer to that example. I think that the 75 per cent rule would have played into the hands of managers of such developments and of management companies rather than being of benefit to the residents. The target of a two-thirds majority is probably much more achievable.

The minister referred to the right to buy and mixed tenure estates. The committee heard evidence that further clarification on that issue was needed. Members will be aware that, since the introduction of the right-to-buy legislation in 1980, local authorities have made use of title conditions to regulate the use and upkeep of properties that have been sold. The Abolition of Feudal Tenure etc (Scotland) Act 2000 will remove the feudal superior provisions, which will create problems for local authorities, although the bill will allow local authorities to save burdens by registering notice.

Professor Paisley—an expert in the field—expressed concern about the interface between the bill and the Conveyancing (Scotland) Act 1874, with which members will be familiar. Professor Paisley was keen that the matter be addressed to ensure that acts interrelate effectively. I hope that the minister will take the opportunity between now and stage 2 to ensure that there is no room for confusion in that area. If necessary, an appropriate amendment should be lodged at stage 2, to which the committee would be sympathetic.

I welcome the minister's announcement that a development management scheme will be introduced at stage 2. That is an important and significant step, as considerable concern was expressed about the matter in the committee. I congratulate the minister on trying to improve the bill further by introducing such a scheme.

As someone who does not have a legal background, I found the Title Conditions (Scotland) Bill rather difficult. I am convinced by the committee evidence and by colleagues who have experience of conveyancing law that the bill will be an important piece of legislation and another piece of the jigsaw in the reform of property law in Scotland. I hope that members will be generous and agree to the committee's recommendation to support the general principles of the Title Conditions (Scotland) Bill.

I declare my interest as a non-practising Queen's counsel, as an unpaid director of a family company with interests in land and as a currently unpaid executor for my father. I also mention that I worked as a law apprentice in Shepherd and Wedderburn under Professor Henry, who was a considerable expert on the subject under debate.

Like Michael Matheson, I thank Scott Wortley and the clerks to the Justice 1 Committee for their assistance—they put a huge amount of work into the committee's report.

On behalf of the Scottish Conservative and Unionist Party, I warmly welcome this stage 1 debate on the Title Conditions (Scotland) Bill. It could be argued that the bill will hardly set the heather on fire but, nonetheless, it is of utmost importance to conveyancing and legal practitioners in Scotland that Scotland should have the best possible laws. If the Scottish Parliament is to do its job properly, it must make certain that Scotland's laws are second to none. It is important that Parliament gives sufficient parliamentary time to such issues.

I welcome the bill because it addresses defects in the law. For example, the law is uncertain in various respects as to whether we can have burdens for managers or for residents associations. The law is unsatisfactory in that a burden can impose an obligation to maintain, but not to pay to maintain. There is also a lack of transparency in the registers; one can check the registers to discover what the burdens are, but not who can enforce them. There is too much reliance on implied rights. It is also difficult to vary and discharge burdens, which means that obsolete burdens clog up titles and hamper development. There is a rule that all benefited owners must agree to a discharge of such obsolete burdens. Under negative prescription, if a burdened proprietor breaches a burden and the proprietor takes no action, the burden will fall after about 20 years.

Modern practice often ignores the law because it is out of date and difficult to implement. The effect of compulsory purchase on burdens is unclear and the existence of implied rights of enforcement means that they are often ignored in practice when interested parties seek variation of burdens. It is to the credit of the Scottish Law Commission and those who worked on the bill that many of those problems are being remedied.

It is important to see burdens in their proper context. A burden that is to the advantage of one person may be to the disadvantage of another. Where one party has the right to enforce a burden, another party is subject to it. The benefited owner might feel that his or her property value is increased if they have some control over neighbouring property. The neighbour, who is the owner subject to a burden, might resent being prevented from doing something to his or her property. We must have an appropriate balance between the rights of different parties—in the words of Isaiah Berlin,

"a balance between freedom to and freedom from, both freedoms being important."

There are issues of great controversy in the bill. Perhaps the greatest is in section 52, which would create new enforcement rights. Its effect would be not only to create new rights in feudal estates where there may be an existing right to enforce held only by the superior, but in estates where there are no existing rights to enforce. As the minister said, legal practitioners are seriously concerned about that provision because often they have conveyed properties where no such rights existed—indeed, neighbouring houses might not have been built. Similar concerns were expressed in evidence by Bruce Merchant. It is felt that section 52 could lead to a great deal more administrative work and increasing costs, which would not be helpful.

The committee recommended that the Executive re-examine and report back on the practicalities of the new implied rights in housing estates, which is perhaps the most difficult issue in the bill. Although the arguments are relatively evenly balanced, it seems that the case for reform in that area has not yet been established conclusively. John McNeil of the Law Society of Scotland told me today—as I mentioned to the minister in an earlier intervention—that the issue needs further consideration and that the Law Society will send in further representations, which I welcome.

A second issue of contention relates to the treatment of local authorities and whether they should receive special treatment in some cases that involve the right-to-buy estates. Questions were also raised about whether they should receive special treatment in relation to clawback burdens. The committee's recommendation in paragraph 159 is that there is merit in allowing authorities to use clawback arrangements to promote the use of land for specific purposes for the benefit of the public. If such provision is to exist for local authorities, but not for private individuals, the benefit to the public should be substantial, clearly identified and precisely defined before an amendment to that effect is agreed to.

The third issue is whether it should be easier to discharge burdens. The bill addresses the problem effectively. If I understood the minister correctly today, an amendment will be lodged to allow a community to vary or discharge community burdens by a two-thirds majority.

The committee wishes to highlight the fact that the management development scheme should be included in the bill. I am glad that the minister responded to that and, if I understood him correctly, he will lodge an appropriate amendment, although it might be necessary for additional measures to be introduced by Westminster.

The complexities of the maintenance and management of tenement properties must be left to the tenement bill, which I understand will be introduced early in the next parliamentary session. I make the request to all parties—nobody should anticipate the democratic results of the election—that the tenement bill should not be long delayed.

During the course of evidence taking, it became clear that the Abolition of Feudal Tenure (Scotland) Act 2000 will come into force once the Title Conditions (Scotland) Bill has been passed. It will assist practitioners greatly that a clear statement has been made as to the intended dates of implementation of the 2000 act and of the bill. I think that the minister said that the bill will be passed by autumn 2003 and the implementation date for both acts will be Martinmas 2004—28 November 2004. It would be helpful if a declaration of intention were given with regard to the tenement bill. If the three bills were dealt with together and came into force at the same time, that would make matters much clearer for lawyers. Not only would the law be absolutely clear, it could be applied clearly and nobody would be able to say that they were unable to fulfil the terms of the law because they were ignorant of it. That clarity would be extremely valuable.

I warmly welcome the bill, which will provide greater clarity, or increased simplicity, in the law, and a general reduction in the number of outdated conditions on land. Subject to my reservation about section 52, which I recognise is a difficult issue, I commend the bill to Parliament.

I am pleased to open the debate on behalf of the Labour party and to support Jim Wallace in commending the Title Conditions (Scotland) Bill to Parliament.

In Labour's 1999 election manifesto, we said:

"Our radical land reform agenda will be the centrepiece of our sustainable development programme. We will bring forward early legislation to abolish feudalism once and for all."

That is what we are delivering, in partnership with our Liberal Democrat colleagues. The Title Conditions (Scotland) Bill is part of the tranche of land reform legislation that has been one of Labour's priorities for this parliamentary session. It forms part of the jigsaw of legislation that will bring land holding out of feudalism and into the 21st century.

The bill follows on from the Abolition of Feudal Tenure etc (Scotland) Act 2000, and it is progressing through Parliament contemporaneously with the Land Reform (Scotland) Bill, which will enable communities to purchase the land that they live on and develop it for their own benefit. It will be followed by the tenement bill. I believe that that package of legislation will be looked on in future as one of the great achievements of this Parliament. It is an achievement that I firmly believe could not have happened without the Scottish Parliament, which was created because of the commitment to devolution of the Labour party and our coalition colleagues.

The publication of the Title Conditions (Scotland) Bill was described by Professor Roddy Paisley of the University of Aberdeen as

"one of the Scottish Parliament's finest hours".—[Official Report, Justice 1 Committee, 3 September 2002; c 3914.]

That caused some surprise and hilarity among members of the Justice 1 Committee, because we were certainly looking on it as a long and difficult piece of work. People who are steeped in conveyancing seem to believe that we are doing something extremely special, and the bill has been generally welcomed by all who have given evidence to the committee.

Although the bill's general principles have been warmly welcomed, considerable concern has been raised about certain issues, as other members have said. There is concern about some of the detail, and fears have been expressed that certain elements of the bill—particularly where it is at variance with the Scottish Law Commission proposals—will prove not to be practicable when properties are bought and sold, especially on those housing estates that would come under the definition of communities. Lord James Douglas-Hamilton and others have outlined those concerns about section 52.

The bill would replace feudal conditions that benefited a feudal superior with conditions that will benefit neighbours or the wider community of the housing estate. Tenants and non-entitled spouses, as well as the owner of the property, would be able to enforce those conditions. If the owner of a property wished to have a condition removed, he or she would have to apply to their immediate neighbours for agreement and advertise the application to the rest of the housing community or seek majority agreement.

In principle, both the extension of rights to tenants and the need for agreement of the housing community to changes to a title condition are excellent, socially inclusive measures. After all, tenants are affected when title conditions are broken. However, practising solicitors have pointed out that those new proposals, together with implied rights, could prove problematical in certain circumstances when a house on a housing estate is sold. In a community of about 200 houses, there would be 200 owners, tenants or entitled spouses.

The Scottish Law Agents Society was concerned that retrospective rights were being created. Those concerns were brought to the committee's attention by Bruce Merchant of South Forrest solicitors in Inverness, and I have been contacted by several other firms of solicitors who foresee similar problems. They believe that, if a house owner who has broken a title condition subsequently puts their house up for sale, retrospective permission would have to be sought, not from one feudal superior but from the whole housing community, some of whom may be tenants or non-entitled spouses, who would not appear on any register and would be difficult to trace. Seeking that retrospective permission would be time consuming and expensive for the solicitor acting for the seller, particularly if the Lands Tribunal for Scotland were to become involved. The solicitors believe that such circumstances would not be unusual. One solicitor said that he would expect to handle one such case a year—multiplied across Scotland, that is not an inconsiderable number.

At a time when the Executive is seeking to simplify the process of house purchase in Scotland, the proposals in the detail of the bill may serve to complicate some transactions and make them more expensive. I ask the minister to examine how the effect of the bill on the practicalities of conveyancing might be mitigated. Solicitors fear that, in the absence of a register of tenants, they would be unable to guarantee title, because the seller would be unable to give the buyer a guarantee that there were no objections to the breaking of the title conditions. I ask the minister to consider whether those concerns can be addressed at stage 2.

Other issues were raised in evidence to the committee; other members will outline those concerns in more detail. The most prominent concerns were raised by the Sheltered and Retirement Housing Owners Confederation, which asked for a re-examination of the conditions that pertain to sheltered housing. The minister has done that, and I welcome his announcement. Owners of houses in such complexes want more control over their management, which seems to them not always to have the interests of the residents at heart. My colleague, Sylvia Jackson, hopes to address that matter later in the debate.

Local authorities and others have raised their concern that the development management scheme proposed in the Scottish Law Commission's draft bill has not been included in the Executive's bill. I understand that that decision was made partly because the proposal touches on a reserved matter and I welcome the minister's announcement about it.

How best to manage schemes and estates, whether they are owned or tenanted, is a perennial problem. I know that Elaine Thomson is particularly concerned about it and that she has had lots of representations from constituents in Aberdeen on the matter.

The bill is highly technical. I was particularly delighted with one piece of colour in the bill—the sunset clause, which Michael Matheson mentioned. At least that would be pink, orange or some other nice colour. I had a vision of a mule, weighed down by feudal burdens, going off into the sunset, a bit like John Wayne—although it was actually going to take 100 years for it to disappear over the horizon. That is what the sunset clause is: a provision that 100-year-old burdens can finally be abolished. I was quite amused that the lawyers seemed to think that 100 years was just the blink of an eye in legal terms. In fact, the Scottish Landowners Federation thought that a period of even more than 100 years might be appropriate for burdens in the countryside.

The SLF is a radical organisation.

Yes, it is very radical.

As I said, the sunset clause is the one piece of colour in otherwise highly technical legislation. I thank our adviser, Scott Wortley. His is a wise head on young shoulders and he is very enthusiastic about the bill. He certainly managed to enthuse us at times when we were holding our heads and saying, "I don't understand it. I understood it last week, but I don't understand it this week." I hope that the committee has done its best to tease out the details and make recommendations that will improve the bill. I also thank the committee clerks for their sterling work. They work day and night, I think. I do not know whether they ever sleep. They have produced a wonderful report and have been a great help to us all in our way through the bill.

Finally, despite the concerns of detail that I have raised, I return to my opening statement of support for the bill. I hope that the concerns that I have mentioned can be dealt with at stage 2, and I urge Parliament to agree to the general principles of the bill.

I thank the Justice 1 Committee clerking team for their stalwart efforts, which go on in the background. I also thank Scott Wortley, who was so enthusiastic that it was almost contagious. I say "almost", but I could not quite join in. When Donald Gorrie, the man himself, expressed his dismay that the debate was originally scheduled to last for three hours—dismay that was shared by all committee members—I knew that I had to move to truncate it.

My clerks, who helpfully bullet-pointed the issues associated with the bill, began, with the honesty of clerks, by saying that the bill is complex and technical. Indeed it is. Worthy the bill undoubtedly is, but, my goodness, apart from a few excited academics, it was a test of our concentration and stamina, but the Justice 1 Committee came through. It surprised me to learn that the stage 1 report has been a sell-out, with 38 copies gone and 10 on order. Those who replied to my e-mail yesterday about who possesses that worthy work can be assured that I will not out them.

I will proceed to the bill's merits, fellow anoraks. The bill is complex and technical and seeks to update the law relating to property. It is intended to make conveyancing simpler and to make it easier for people to alter title conditions relating to their property. Without its passage, the comparatively more exciting Abolition of Feudal Tenure etc (Scotland) Act 2000, to which the minister referred, would not reach its appointed day. I note the date 28 November 2004 and share my colleague Fergus Ewing's concerns about the delay and the fact that there will be money to be made in the intervening two years. Fergus Ewing will no doubt develop that point.

A remarkably high number of submissions—486—were received as a result of the committee's general call for evidence; that gives members a measure of the clerking work that was involved. Admittedly, that number was due substantially to fierce lobbying by those living in sheltered housing or retirement developments. I note the minister's remarks in that regard.

The committee thoroughly scrutinised the bill, which is densely woven—to some of us, it is sometimes more dense than it is woven. Through their oral evidence, academics, practitioners, housing associations, property managers, public bodies and representative groups such as Age Concern Scotland helped the committee to de-layer the bill and measure its practical effects. We published our stage 1 report on Monday 18 November. Despite the bill's technicalities, it is a human bill.

The bill could be described as non-contentious, as it received widespread support, but members considered a number of smaller issues that divided the individuals and groups who were interested in the bill. Although the committee considers that there was general support for the principles of the bill, it is incumbent on the committee to delve further, as the bill is far reaching and will affect many people in Scotland. The bill will affect not just property owners, but tenants and non-entitled spouses—a complex term that usually means a wife who does not have her name on the title deeds.

How will the bill affect people? Most properties have conditions attached to them that are set down in the deed of conditions. Previously, people could enforce burdens only if they were the registered owners of the property. The committee is pleased that the Executive has extended that right to non-owners, such as non-entitled spouses and tenants. The Deputy First Minister ably explained the matter in trying to jolly us along through the densely woven bill. He gave an example of

"a tenant who happens to have a family with young children and whose burden says that they cannot keep pet dogs or Rottweilers. If the person next door decides to keep Rottweilers, the tenant probably has much more direct interest in enforcing that condition, or burden, than the landlord or the owner."——[Official Report, Justice 1 Committee, 1 Oct 2002; c 4071.]

The committee wrestled with many of the legal concepts in the bill, such as acquiescence. I am reasonably familiar with that concept, as are some colleagues from another committee who are here today. I will explain. Imagine the benefited proprietor in the red corner—I have to use such technical terms—who is the property owner and is entitled to enforce a burden. Imagine the burdened property owner in the blue corner—the burden is that he cannot keep homing pigeons. In the red corner, the person does nothing for years and the pigeon fancier may live happily ever after with his billing and cooing companions. I am trying to make the bill interesting. On the other hand, he might not. The question may have been asked, "Have I acquiesced or have I not acquiesced to his pigeon loft and its contents?" By the insertion of time limits to object, the pigeon fancier will know where he stands. That is what the bill seeks to do with regard to rights and duties: it seeks to avoid unnecessary stairheid rammies, although I suspect that there are no pigeon lofts on stairheids.

That brings me to tenements. I fully endorse what Lord James Douglas-Hamilton said. It would be useful if the law relating to tenements could be implemented so that tripartite legislation would come into force at the same time. Many people think that the bill affects the law relating to tenements, but it does not.

There was fierce lobbying from owner-occupiers of sheltered accommodation—the minister has addressed that issue. Other issues that were discussed in the committee were the nature of conservation burdens; the designation and nomination of conservation burdens; an increased role for the Lands Tribunal for Scotland, which says that it does not need more money—we will see; development value burdens; clawback; and possible reform of standard securities legislation, which has been mentioned.

Some witnesses sought to reopen the argument surrounding the provision that is known as the 100m rule, which provides that where a superior has a building that is used for human resort or habitation on neighbouring land and if that building is within 100m of the burdened land, the burden can be preserved by registering a notice. Some colleagues remain unhappy about that matter. The Abolition of Feudal Tenure etc (Scotland) Act 2000 fixed the distance at 100m in contrast to the common-law position, which relied on only two cases, both of which were from Aberdeen. Professor Paisley told the committee that only one of the cases made much sense, which indicated that the burden should be checked by reference to the type of burden. He recalled that

"someone in Aberdeen tried to set up a chip shop frying garlic pizzas. The people who lived within smelling distance downwind had an interest. The distance could vary from day to day"

and could be much further than 100m. He continued:

"For someone who was upwind it would be zero … Implementing such a vague rule does not work."——[Official Report, Justice 1 Committee, 3 Sep 2002; c 3926.]

This is a heavy debate, but I will end on a light note. I am told, although the story may be apocryphal, that, rather like a latter-day Archimedes, Professor Kenneth Reid, erudite professor of conveyancing at the University of Edinburgh, came up with the 100m rule while he was swimming in the Commonwealth pool. He calculated each length to be 25m. On his fourth length, he thought "Eureka—that is the correct distance for the legislation." Not a lot of people know that. However, each length is 50m, so an amendment from the professor would perhaps be appropriate.

We support the bill.

I whole-heartedly welcome the bill, the committee's recommendations and the minister's comments this morning, particularly on the issues that have been raised by my constituents individually and through the Sheltered and Retirement Housing Owners Confederation. In particular, I thank Marie Galbraith and John McCormick for their help. Both have worked through SHOC and have given evidence to the Justice 1 Committee. I hope that they are in the gallery.

I welcome the Justice 1 Committee's report. Christine Grahame alluded to a separate review of the operation of sheltered housing developments in Scotland. I noted that the minister said that he did not think that such a review was needed at the moment. However, in the light of the minister's welcome comments this morning, I am sure that SHOC will discuss the matter further and decide whether we need to press on that issue.

The first issue that I would like to mention is definitions. Section 50(3) of the bill gives a definition of "sheltered housing development". The minister said that he is now happy that that definition be extended. John McCormick suggested that the words

"also known as retirement housing or retirement accommodation"—[Official Report, Justice 1 Committee, 10 Sep 2002; c 3983.]

should be added, and I would like confirmation from the minister that he is thinking of that addition. John McCormick explained that if a lawyer excluded the words "sheltered housing accommodation" from the deeds of condition, retirement homes could find themselves outwith the bill. It is therefore important that we ensure that that issue is addressed.

Perhaps there needs to be a tightening up in the bill of the definition of the word "manager". I have listened carefully and the phrase "management company" has often been used. I gather that that is the phrase that most people would prefer to use, as a manager can be confused with a warden.

The committee recommended the model development management scheme. Everybody seemed to be positive about that. The minister's comments on that issue and on how we will work with Westminster in order to progress quickly were most welcome. I understand that the development management scheme will be the template for how owners and the factor will operate and how financial transparency, which is obviously needed in relation to maintenance and other services, will be increased.

I hope that we can end all the difficulties that have arisen with my constituents, who have worked through those difficulties with SHOC. John McCormick identified two issues in the model development management scheme. First, there might be a clash between rule 4.2 of the scheme— which states:

"The association may at a general meeting remove the manager from office before the expiry of his term of office."—

and the contractual arrangement that could be in place for the warden. Perhaps the minister will comment on that.

Secondly, I gather that the scheme could conflict with the 10-year rule, which we have heard about. SHOC would like that period to be reduced to three years. The minister might like to comment on that—perhaps I missed remarks in his opening speech about how the period would be reduced from 10 years.

The minister said that he did not think that there was a need to insert a minimum age of 60 years. I take his point that sheltered housing covers a large number of things, but I wonder whether it might be appropriate to include a subsection that deals with retirement housing and which could include the minimum age of 60. Such a provision would get over some of the issues about the majority ruling. I welcome what the minister said about reducing the majority from 75 per cent to two thirds.

As I am not on the Justice 1 Committee, which is considering the bill, I am grateful to Christine Grahame for trying to clarify it. At least I think that I am grateful—I thought that I had a rough grasp of the matter, but it gave me some difficulty when she started talking about red corners and blue corners, as I found myself with a constituent in the red corner.

I was involved in the Justice and Home Affairs Committee before it disintegrated to form two committees in order to get more bills through the Parliament. I remember saying, when we were dealing with the Abolition of Feudal Tenure etc (Scotland) Bill, that it would be better had the three bills—on abolition of feudal tenure, title conditions and tenements—been put together. That seemed to make sense at the time. We talk about simplicity with respect to the Title Conditions (Scotland) Bill, but I believe that we will cause complication in the legal system in the future, as three bills will have to be referred to rather than one. The fact that all three bills will be implemented on the appointed day, which the minister announced today, emphasises that there was some justification in the suggestion that the three bills should go together.

In the main, I agreed with Maureen Macmillan's comments, but I take up one minor point with her. She said that this Parliament had delivered. In fact, that is not the case; the Parliament that is elected in 2003 will deliver on the issues. We have laid the groundwork for delivery in the next parliamentary session. The Conservative group sees those three bills as all-important, and I give the Presiding Officer an undertaking that if we form the Executive in the next parliamentary session, we will give them high priority.

The issues relating to sheltered housing are very important. Problems were brought to me—even before the setting up of the Parliament—by owner-occupiers in sheltered housing complexes who felt that they could not control their own destinies in respect of the properties that they owned. They felt that management companies did not provide owner-occupiers with the detail; all that the companies expected was that the money was paid to them. There were deficiencies in the system. I recognise that the developers played the system. Frequently they maintained ownership of a unit so that they could maintain the factor's responsibility for the complex into the future. In one instance, a developer and management team refused to release to the owners details of the contractual arrangements that had been set up between the two parties. Fifty per cent of the funding requirement from the owners towards their fees for the complex was used to pay the manager and to pay management fees that were never explained to the owners. If the Title Conditions (Scotland) Bill helps to clarify that aspect, it will have achieved much. Just as I believed that the Abolition of Feudal Tenure etc (Scotland) Bill had much to offer, I believe that this bill is setting the pace for the future and is very welcome.

People who have developed estates often place restrictive conditions on those who have bought properties within them. We must deal with the lack of flexibility in those conditions. A constituent told me of a case in which an individual was intent on putting up a very low hedge along the edge of his garden, but that was not permitted under the terms of his purchase. The developer pointed out that if the individual were to go ahead, the developer would have the right to pull back ownership of the purchaser's building. That does not seem right. I believe that the bill will address such idiocies.

I welcome the opportunity to speak in the stage 1 debate on the Title Conditions (Scotland) Bill. There has been much interest in the legislation in parts of my West Aberdeenshire and Kincardine constituency. I will focus upon the sections in the bill that deal with sheltered housing and, specifically, with the management of sheltered housing developments.

The bill defines sheltered housing developments as

"a group of dwelling-houses which, having regard to their design, size and other features, are particularly suitable for occupation by elderly people … and which, for the purposes of such occupation, are provided with facilities substantially different from those of ordinary dwelling-houses."

Sylvia Jackson shares my concerns over definitions. However, I note that the Justice 1 Committee states in its report to Parliament that it

"is satisfied that the definition of ‘sheltered housing development' covers retirement accommodation."

That is an important point and one which I very much welcome, because I was concerned that not all types of retirement accommodation would be covered by the bill.

In my constituency, we are fortunate to have an almost unique retirement development at Inchmarlo, outside Banchory, in Royal Deeside. It is an extremely well-run and very attractive place to live. The development is designed for the over-55s and, to quote the bill, it has

"facilities substantially different from those of ordinary dwelling-houses."

The home owners of Inchmarlo are in a different situation from what might ordinarily be considered to be the situation with owner-occupied sheltered housing. Although each resident of the Inchmarlo community owns their own home and the land immediately surrounding it, they do not own the communal grounds or the facilities that are available. The common ground and the surrounding facilities are managed not by the individual property owners, but by a separate management company that is owned by the developer.

I emphasise that the current developer manages the estate very well and ensures that Inchmarlo is a thoroughly attractive place to live. However, several of my constituents have approached me because they are concerned not about the current management of Inchmarlo, but about what might happen to the estate in the future.

At first sight, the bill appears to give the residents of Inchmarlo the opportunity to vote by two-thirds majority to dismiss the manager and appoint a new manager, even if the titles provide otherwise. My question to the minister is simple and straightforward. Can he assure me that, as a result of the bill, the resident owners of houses and apartments in the Inchmarlo residential complex in my constituency will have the same rights and obligations as other owners of more typical sheltered housing developments elsewhere in Scotland? Will they be able to form an owners association, which will, under the terms of the bill, have to be recognised by the developer? Will they have the legal right, subject to a two-thirds majority of all owners, to replace the manager even when they do not own the ground that the developer manages on their behalf?

So far, I have been unable to get answers to those important questions. I would welcome comments from the minister and committee members on whether that will be the case under the bill, or whether they believe that amendments will be required to ensure that those rights and obligations are available to my constituents who reside in the Inchmarlo complex. Members should remember that those residents do not own the communal facilities, which are owned and managed by the developer. I would like a response on those questions.

I am pleased to support the Title Conditions (Scotland) Bill, which, as other members have said, is one of several pieces of legislation, including the Abolition of Feudal Tenure etc (Scotland) Act 2000, that aim to modernise and transform property law in Scotland. I welcome the Scottish Executive's commitment to introduce, as early as possible in the new parliamentary session, a third bill, which will update the law of the tenement.

Maureen Macmillan said that the University of Aberdeen is enthusiastic about the modernisation of the legislation, which does not surprise me, given the difficulties that exist in Aberdeen with tenements and with other issues that are associated with common property. I, too, welcome the modernisation of the legislation. The bill is technical and the Justice 1 Committee is to be congratulated on its work. There is wide consensus on the bill and many of the organisations that were consulted support it. The bill begins to realise some of the wider hopes about what devolution should achieve. We should congratulate the Sheltered and Retirement Housing Owners Confederation on its involvement with the legislative process and on engaging with MSPs to make absolutely sure that we understood the issues.

My particular interest in the bill comes from my experience and that of the many constituents from different parts of Aberdeen who have contacted me. Many of my constituents have run into the difficulties that can occur in retaining or repairing common property and unadopted land. Recently, a group of owners on an estate in Aberdeen encountered difficulties when they were presented with large maintenance bills. The homes on the estate were built originally as Scottish special housing, following which the estate was passed to Scottish Homes and then to a local housing association. In time, most of the properties were bought under the right to buy. Associated with the properties is a continuing responsibility for paths, streetlights and various other items on unadopted land, but many of the people who purchased their homes were not fully aware of their responsibilities for those common areas. That is why I welcome the detail in the bill, which will mean that common burdens should be made more explicit in title deeds.

Given the increasing number of home owners in Scotland, it is ever more important to ensure that people are fully aware of their rights and responsibilities with respect to property ownership. I welcome the introduction of clear guidance on the definition of community burdens and the provision for communities of a way forward in arranging community repairs. I support the Justice 1 Committee's wish to introduce model development management schemes and I welcome the minister's statement that the Executive will lodge amendments on that issue at stage 2.

The inability to progress common repairs is often a result of legal complexities and the requirement to have the agreement of all owners before going ahead. Those factors undoubtedly lead to the deterioration of property throughout Scotland, particularly older tenement properties. The provision to allow communities to proceed with repairs on the basis of a majority vote rather than the agreement of all the owners is a step forward, as is the ability to ask people to give a deposit on the payment for any work.

The changes that I have mentioned must be accompanied by the new legislation on tenements. I urge the minister to ensure that the housing improvement task force considers closely the difficulties that are encountered with the maintenance and repair of common ground and buildings, whether that involves grass, paths or common stairs. I support the bill.

I begin with the disclaimer that I am not a lawyer, nor am I a member of the Justice 1 Committee. However, I inform members that, since Friday, I read every piece of information on the bill. Indeed, I am the anorak to which Christine Grahame referred.

It is a pity that Mike Rumbles has left the chamber, because he raised the same issue that I want to raise with the minister. I read all the material because I was visited by a number of constituents from a new housing estate in Markinch, who are concerned about the management of the green space on the estate. The developer has sold the green space to another company, which means that the owner-occupiers in the estate do not own it. Under the existing deeds, the owner of the green space can levy an annual charge on the owner-occupiers to allow maintenance work to be carried out. However, the owners have no control over how much money is extracted from them or over the level of maintenance of the green space.

Naturally, my constituents are concerned that, because the annual charges are in the hands of the owner of the green space, they might go up and up. Will the minister say whether such issues are addressed in the bill and how they can be resolved on behalf of the owners of houses in such estates? How can my constituents influence the developer or the owner of the green space and have some control over the annual charge that is levied? How can the owner-occupiers monitor whether the maintenance work is carried out?

Another problem for some of my constituents is that they believe that the conditions that are laid down when buying property are restrictive. The minister said that he cannot sell alcohol and Phil Gallie mentioned the restrictive conditions in deeds. The bill allows for deeds to be registered, but where is the provision to allow conditions to be varied? I hope that the minister will address the problems that my constituents have raised in his summing-up speech. The problems are not confined to one area of Scotland—Mike Rumbles made it clear that constituents in his area are worried about the future. As new housing estates are built all the time, the issues might become a problem in the future. I would be grateful for any comfort that the minister can offer to my constituents in Markinch.

I will not pretend that I found it easy to wade through positive servitudes, servient tenements or negative prescriptions, and I take my hat off to the members of the Justice 1 Committee in recognition of their efforts. However, although the bill's language is obscure, its purpose is not. The bill will improve the quality of life for many people in Scotland by giving people of all ages greater control over their property. I will focus on one of those groups: people who live in sheltered and retirement housing.

When people buy into a retirement complex, they often imagine that they are buying security and peace of mind; they assume that the developer, factor or manager will have their best interests at heart and will look out for them. All too often, that is not the case. Instead of security, residents face a culture of bullying and intimidation. The evidence to the Justice 1 Committee is littered with examples of that. It is unacceptable that people who own their homes and pay additional costs for services are not consulted on those services, have no power to control them and have no method of holding management companies to account.

The bill addresses those concerns and I am pleased that the Executive has responded favourably to the Justice 1 Committee's report, which takes matters further. However, I take issue with the bill's use of the term "sheltered housing", to which my colleague Sylvia Jackson and others have referred. The main issue is the absence of the term "retirement housing".

The phrase "sheltered housing development" is used to cover both sheltered and retirement accommodation, but that is not how sheltered housing is perceived, nor how the phrase will be understood. At a meeting in my constituency a couple of weeks back, residents from a retirement complex who were finding out about the bill for the first time had to be persuaded that the term "sheltered" covered them. The difference between the two types of housing is fairly straightforward. Retirement housing is for older people; sheltered housing could be for older people, but it could also be for younger people who are disabled, infirm or vulnerable.

In the committee, the Executive argued that certain categories of people—disabled, infirm or vulnerable people—could be excluded if the provisions of the bill applied solely to retirement accommodation. No one has ever argued that the bill should apply solely to retirement housing. The bill should not apply to either sheltered or retirement accommodation; it should apply to both sheltered and retirement accommodation. If the Executive accepts that that is the case, it cannot oppose the use of the word "retirement" on the ground that it is exclusive.

The avoidance of misunderstanding is not the only reason why it would be helpful to use the phrase "retirement housing" in the bill. The fact is that most owners of retirement flats are not infirm or vulnerable. In most cases, residents have to prove that they are reasonably fit and able to live independently. That stipulation is often written into their deeds and conditions. I am concerned that there is an assumption throughout the bill—implicit rather than explicit—that older people need to be protected. That assumption was also apparent in some of the evidence that was submitted to the committee. We all need the law to protect us, but most retirement home owners are quite capable of looking after their own interests and do not need someone else to do so for them.

It is interesting that one of the arguments that was put forward by the property developers and management companies is that people who live in retirement complexes need to be safeguarded against the younger element. The argument is made, especially in support of the appeal for a 75 per cent voting threshold to protect core burdens, that there may be a bunch of radicals who could act against the interests of the older, more timid but silent majority. It is also interesting—if not downright contradictory—that the same companies are the ones who are suggesting greater flexibility over the age restriction that is written into the core burdens. The owners want the age restriction to be 60, whereas the developers are suggesting a younger age.

Has the member given thought to whether developers who continue to own properties and rent them out should have voting rights? The managers who manage the properties may also be owners and exercise those rights. Does the member think that that should be reflected in consideration of the appropriateness of a majority and the size of that majority?

I do not have the time to develop that important point, much as I would like to. The restrictions on voting are crucial to the bill and a degree of clarity is needed.

Older people do not need anybody else to protect them: they can protect themselves. All the stories that I have heard from retirement complexes reveal that the only people who always protect the needs of the residents are the home owners. I have yet to hear any evidence to suggest that retirement home owners have ever introduced proposals in any complex to weaken the management or maintenance of services for older people. It is not the residents who cut back the number of hours that are worked by the warden or who save money on catering by reducing meals to a couple of fish fingers and some beans. The only reason that I can find for a 75 per cent voting threshold is the protection of the interests of the management companies, and I welcome the Executive's commitment to revise that figure downwards.

As Brian Adam suggests, there are other issues. For example, will an abstention be counted as a "no" vote? Those of us who remember devolution and the notorious Chandos amendment will wince at the thought of repeating any such undemocratic technique.

There are many aspects of the bill with which I am pleased, and I am pleased with what the minister has said. However, I am disappointed that he will not reconsider the need for an overall review of sheltered housing. Many issues outwith the scope of the bill must be considered. Nonetheless, the bill is a major step forward and I look forward to working with colleagues from all parties to bring it into statute.

I add my thanks to all those who did the hard work behind the scenes in the consideration of the bill.

By an agreement with the excellent pupils of St Ninian's Primary School in Stirling, who want us all to use Scots, I am obliged to introduce the words sook and fushionless into my speech. First, if I pay tribute to the minister for the important changes that he has announced today, I will not be considered a sook. He has responded in a very good way to the efforts of the committee to scrutinise the bill. Secondly, it shows that the system works: a committee of people, who are very far from expert on the subject but very far from fushionless, can seriously scrutinise a bill by listening to people who are expert, and by bringing common sense—or "non-fushionlessness"—to the subject. Without being complacent, the system has been shown to work.

One great pleasure of dealing with the subject was that it was not a party issue. We all developed into a strong, pro-sheltered housing group that crossed all political parties. It is evident that things are not yet absolutely clear, so the minister's comments are very welcome, although amendments may need to be considered on that point.

The basic issue behind the bill is the balance between the rights of the individual and those of the community. The bill also covers people's rights to neglect their own property, which, as a councillor, has frequently astonished me. It seemed to be a big part of British law that someone could totally neglect his or her property until it severely impacted on a neighbour. I always used to suggest to neighbours that, if they could see a rat, they might have some redress, although even that failed sometimes.

We are trying to say that people do not have an unqualified right to neglect their own property. They must consider other people's properties, whether they are mixed blocks in council housing areas, where some have been bought and some have not, or tenements. I am still unclear about tenements, but I understand from the minister's comments that there is some protection for people in tenements to get things done. If the deeds are silent about common repairs, there is a default provision that helps the majority to secure repairs. It would be very helpful to pursue that. I understand that there must be a separate bill, but common repairs are a major issue, certainly in cities where there are many tenements.

Councils and default provisions are another issue. In the past, there was concern about controlling those councils that were buying ground, possibly in a bad way. Currently, the issue is of councils selling ground, possibly in a bad way. Some protection against that is wanted. Councils are also going into joint ventures, which is a good thing, but that raises many issues about councillors' rights to give opinions and participate in planning decisions. All that must be dealt with, as it impacts slightly on the bill.

On the whole, the bill is very successful in achieving its result. Along with the tenement bill, the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the forthcoming bill on the feudal system, it has made a big change. Minor improvements will be necessary at stage 2, but it has been very successful, and I commend the minister.

Donald Gorrie mentioned that the pupils of St Ninian's Primary School, Stirling, have invited us all to adopt a Scots word. My word is "bluffleheid", which describes a person who has a very large head, but a tiny, wee brain. I am looking around me—

Do not fix your gaze.

Perhaps the phrase

"Judge not, that ye be not judged"

is one to which I should pay due regard.

I declare an interest as a practising solicitor, although I have absolutely no interest at all in adding to the 20 years that I have spent poring over old feu conditions, feu contracts and contracts of ground annual, especially those written in spidery handwriting. It may not surprise members to learn that after the invention of the typewriter, Scots lawyers, being an innately conservative bunch, decided to wait 10 or 20 years to check that the typewritten text would not fade and continued to use ink long after the invention of the typewriter.

That general approach characterises the excellent advice on which we acted to produce an excellent bill. I say that now because I want to move on to aspects of the bill that I think can be improved.

The conservative approach has cost us. For example, the Conveyancing and Feudal Reform (Scotland) Act 1970 was the first attempt to allow a legal process by which unreasonable and unfair conditions that impacted on people's lives could be discharged. However, that act did not go far enough. It was timid, unfair and paid undue regard to the interests of feudal superiors, but insufficient regard to the interests of ordinary mortals such as you and me, Presiding Officer.

Since I was elected I have been inundated by communications from constituents who complain, for example, that they want to put an extension on their house or make an internal alteration but suddenly find that they must get the permission of some feudal superior somewhere.

I see John Home Robertson nodding sagely. I imagine that he knows a bit about feudal superiorities.

People find that they are asked to pay £250 or £500 just to get a wee letter saying that they can go ahead and replace their toilet or build an extension. Perhaps more serious is the situation of people who own a large piece of ground. For example, a widow who wants to sell half the feu to pay for a decent life in retirement finds that the feu superior comes along and asks for several thousand pounds.

Will the member give way?

Certainly.

I sympathise with Mr Ewing's constituents. However, does he agree that the worst offenders for demanding payment for waivers are local authorities?

I could not compete with Mr Fraser in ascribing guilt among various parties.

The question is whether the combined effect of section 18(7) of the Abolition of Feudal Tenure etc (Scotland) Act 2000 and section 81 of the bill goes far enough. I do not think that it does. The problem is that feudal superiors will be abolished, but their rights will live on if they can register a notice. On what criterion have we allowed the feudal superiors to survive and exercise those powers? The answer is, on the basis of the 100m rule. If feudal superiors have within 100m of their land

"a permanent building which is in use wholly or mainly as a place of human-

(i) habitation; or

(ii) resort",

then they can serve a notice.

In most parts of rural Scotland, feudal superiors who own estates will usually have such a building within 100m of the estate. Therefore, those people can serve a notice and seek compensation under the terms of section 81 of the bill. The Lands Tribunal continues to be entitled to award compensation. I am pleased that there is an impediment, which is that the payment of compensation will only be on proof of "substantial loss or disadvantage". However, I would urge the minister to go a bit further.

I was interested to hear that the Queen has dispensed with her royal prerogative and has perhaps ceded some interest in rights or property. I was surprised that a more formal motion or procedure was not allocated to ensure that that was done. The Scottish Parliament has Sewel motions for the transfer of powers from the Scottish Parliament to Westminster. The Scottish National Party opposes Sewel motions, but perhaps we should introduce a different motion for the Queen's ceding of interests. If we do, we can perhaps call it a Burrell motion.

We go now to closing speeches. I call first Wendy Alexander from the Labour party. I will give you four to five minutes, which is what speakers had in the opening round.

As my committee colleagues on the Justice 1 Committee have highlighted, the bill was incredibly complex and proved a challenge to us all. We only rose to that challenge because of the help of our clerks and, indeed, our advisers. I add my word of support to them for their efforts.

In summing up for the Labour party, members might be relieved to know that I want to look at why the bill matters for those who have no appetite for the detail. The Scottish Parliament has taken another battering this week about a building burden of its own. I read this morning's tabloids over breakfast and, inevitably, angry from Anstruther and outraged from Auchtermuchty were having a field day.

Will the member give way?

No, I do not have time.

I safely predict that the only way in which the bill could possibly have in tomorrow's tabloids the sort of coverage surrounding building burdens that we have seen this week would be if our nearest prospective neighbour in Holyrood Palace decided that they wanted to explore the real burdens on the new Parliament building.

Whatever the reaction outside the chamber, it is important for those of us in the chamber to restate why the bill matters. Of course, the raison d'être of the Parliament is in part to modernise the law of Scotland. We found ourselves in the increasingly anachronistic position of having retained our own law in Scotland without having our own legislature. After 300 years, there is a bit of tidying up to do. The bill definitively proves that we are getting on with the job.

The other hopes for the Parliament are in the areas of Scottish lawmaking and the development of Scottish politics. It was hoped that perhaps occasionally we would listen to those who knew what they were talking about. The bill is the pre-eminent example of how to get that right. The bill provides everything that people wanted and experts from the Scottish Law Commission took the lead in that process. The Scottish Executive listened, the Justice 1 Committee operated on a powerful cross-party basis and ordinary Scots had the chance to have their views heard on issues such as sheltered housing. The bill proceeded as it was intended to.

A mere three or four years ago there were pre-devolution fears that said, "Och, if we try and have a parliament there will be all that wrangling with Westminster and you'll never get it sorted out." We heard earlier in the debate that again we have been able to reach agreement with Westminster and that it will be possible to introduce the development management scheme, which will let us move forward.

That brings me to the development management scheme itself. The success of the Scottish Parliament, as with any other parliament, should be about the extent to which we use the power of the law to support the most vulnerable in our society. It is not just about the highest profile measures, such as the provision of central heating or free bus travel. Those could come and go from one Administration to the next. The point is that the law should protect the most vulnerable. On that point, I think that those who are more frail, and are tenants of sheltered and retirement housing, can feel encouraged.

At this point, I will invoke my Scottish word, which is "canny". As a Labour MSP, I suggest to a Liberal member of the Executive that he should be canny and shy away from imposing any artificial referendum thresholds. The Cunningham 40 per cent rule did not serve the Labour party particularly well. I do not think that the 75 per cent majority required for common repairs will serve us well.

The question that will continue to be asked over the next 10 years is: "What has the Parliament ever done for us?" I guarantee that if we walked out into the street, we would hear that question. The bill, as we heard earlier, is one of several on property and land reform in Scotland that will fundamentally change Scottish life and society, because the key issue for rural Scotland is how people can take a greater sense of ownership of their lives, communities and futures.

On urban Scotland, I do not think that there is anyone who does not believe that finding a way to rebuild fractured communities is at the heart of what the Parliament is about. Of course, the bill makes it possible for there to be common burdens, but it puts on the agenda the issue of our responsibilities to our neighbours in the community.

Yes, the bill is technical, tough and arcane, but it is one piece of the jigsaw that will mean, as Fergus Ewing said, that instead of Scotland modernising itself despite a desperately dated legal system, we can modernise ourselves through a forward-looking, simplified law of Scotland that is in the interests of the people of Scotland. That is why we are here as MSPs. We were created to do that. I commend the bill to the chamber; it is a step forward on the journey.

I should start by declaring an interest as I am a solicitor, albeit not currently a practising one, and a member of the Law Society of Scotland.

Earlier, James Douglas-Hamilton indicated that the Conservatives would be supporting the Title Conditions (Scotland) Bill at stage 1, as we regard it as a welcome and necessary piece of law reform. It is worth considering for a moment why we need title conditions, because some might say that they are no longer required in the modern world. However, they are necessary in a number of situations. A typical example might involve a farmer who sells a piece of land to someone who wants to extend their garden. The farmer might say that he will sell the piece of land at a price that reflects its amenity or agricultural value and that, in order to protect that, he will include a title condition to say that the new owner will not be allowed to build on the land. That is because, if he had sold the land for development, he would have sought a higher price.

Title conditions are also necessary in urban or suburban situations. At one time, the house that I own had a larger garden than it now does but previous owners sold part of it to allow a smaller house to be built. Because the house sits in front of my house, there is a title condition, which I have the right to enforce, saying that the other house cannot be more than one storey high, in order to protect the view and the amenity of my property.

I am puzzled by the example that the member gave involving a farmer selling a piece of land to someone who might subsequently want to build a house on it. Surely that is the sort of situation that we have planning authorities to deal with. There is no need for the farmer to have a burden in relation to the sale.

That is an interesting intervention because it displays a complete ignorance of the way in which the law operates. Our planning system allows a person to apply for planning permission, but the person who has sold the land might want to exercise some control over the land, as it will be adjacent to his property.

Another important question is involved. If the farmer sells that piece of land knowing that he will have no control over it, he will have to assume that the use to which that land will be put will be the most valuable use, to wit, development. Therefore, he will seek a price for the land that will reflect its most valuable use. Therefore, the person who wants to buy the land to extend their garden will end up not being able to afford it. Title conditions encourage the development of land that would not otherwise be developed. The fact that Mr Rumbles does not understand that point says a lot about the Liberal Democrats.

We have used title conditions in this country for many years. In fact, our great urban landscapes, such as the new town of Edinburgh, were developed under title conditions, long before the current system of public planning was developed. It is telling that the great urban landscapes that we have in Scotland all predate our current planning laws, which came in after the second world war. That demonstrates the value of title conditions.

However, law needs to be not only equitable and fair, but practical and workable. There are a couple of points that I would raise in that regard. Bruce Merchant, a solicitor in Inverness, and others told the Justice 1 Committee that there is concern over the impact that section 52 will have on the workability of conveyancing practice. It is all very well giving an implied right to enforce to all sorts of other proprietors, but the fact is that if you are a solicitor trying to convey a transaction—and I have experienced this in my working life—the requirement to go to 50 or 60 people to seek a waiver will make it impossible for conveyancing to continue. In practice, of course, the solicitor would not go to 50 or 60 people but would probably go to get some sort of insurance policy from an indemnity company that would cover them against any claims that might be made. That would mean that, if the bill went through with that measure, the purpose of the bill would be defeated. I would therefore ask the minister to consider again the question of implied rights to enforce, and think about whether we should instead have something like the 4m rule that is included elsewhere in the bill, which would limit the number of people from whom the solicitor would have to seek consent and make the system a bit more workable.

My other concern relates to clawback provisions. If land is disposed of for less than its development value, I can see the need for clawback provisions, but I cannot understand why the clawback provisions should be restricted to local authorities or public agencies. I can think of examples of private estates having sold land for development, and they should have that right to clawback also.

The Conservative party supports the bill, with the reservations that I have outlined. I trust that those will be addressed as the bill progresses.

Many of the members who have spoken have suggested that the bill is complex and technical. I hope that that is not an excuse for people not understanding what we are doing. Judging by the way in which it was said, I suspect that "complex and technical" is a euphemism for "I dinnae ken fit it means."

In some ways, I am not surprised, given that we are discussing terms such as "breach", "burdened" and "benefited" and that the debate is heavily overlain with servitudes. Discussions have taken place about a variety of burdens, and I do not know whether there is a distinction between real burdens and those that may not be genuine. Certainly, in a previous existence, I thought that such matters were quite unclear, but having read the report, I think that they are clearer now.

The intention of the bill is to make it easier for those who have interests in property to exercise those interests without them being unduly interfered with by those who have had historical rights. Despite Murdo Fraser's best efforts to explain why those rights were bestowed, I am still unclear about that.

I must apologise for my late arrival this morning; I did not hear all of the Deputy First Minister's speech. However, I welcome his concession that the 75 per cent threshold is too high and his willingness to reconsider the limit. For democracy, a simple majority is the best majority in almost every case. I understand why the committee was willing to accept two thirds rather than three quarters, but a simple majority must be considered, especially against the background of the potential for developers and managers to own units as a result of any ballot that might take place. Such a limit could distort the ballot, and I welcome Wendy Alexander's comments about the iniquitous 40 per cent rule in the first referendum on Scottish devolution.

I am pleased that the committee and the minister have addressed many of the issues raised by the Sheltered and Retirement Housing Owners Confederation. However, the Executive needs to provide a definitive view on other issues, such as whether the word "retirement" should be used. Kenneth Macintosh gave an eloquent argument for why including the term "retirement" is not exclusive. Members do not wish to deny vulnerable people access to properties or to the benefits that will come from the bill. However, in order to bypass the legislation, an unscrupulous person might take advantage of the fact that the term "retirement" is not included in the bill, which is, of course, undesirable.

I welcome the minister's announcement that there is to be an amendment that will allow for the introduction of appropriate management schemes. I look forward to transparent management schemes that offer accountability to owners by outlining how their money is spent and which increase their rights.

The issues that Mike Rumbles, Tricia Marwick and Elaine Thomson raised about communal property over which owners may or may not have a direct influence—in the circumstances that Mike Rumbles described, they have an interest, but they have no control—would be best clarified by the minister in his closing speech. We must find out whether we need to amend the bill to take care of those matters.

Donald Gorrie was right to say that the bill is important and—as Wendy Alexander also said—has been worked on jointly. The approach to the bill has not been party political. That is a measure of the Parliament's success and proof that it may be a stepping stone to something greater. Indeed, I am delighted to welcome the bill on the Scottish National Party's behalf.

I listened with interest to what Christine Grahame had to say on a variety of matters, but I was particularly intrigued by what she had to say about pigeons. Pigeon lofts, for those of us who served previously as councillors, were always difficult to deal with. I suggest to Christine Grahame that where someone puts a pigeon loft is not the only problem. Whether they have the pigeons in the hoose is also a problem. There is a need to address the difficulties that are associated with that through appropriate legislation.

I commend Professor Roddy Paisley's concerns to the minister. Many members and the Justice 1 Committee have continued to state that his concerns on mixed tenure estates are not misplaced. That issue ought to be re-examined.

Notwithstanding those minor concerns, the SNP welcomes the bill.

I thank all those who contributed to the debate for the broad welcome that they have given the provisions in the bill. In spite of the bill's complexity, the speeches were well informed and raised important points. Indeed, we had a spirited speech from Christine Grahame, who managed to make the issue sound really exciting.

Others declared an interest. Perhaps I was remiss in not declaring an interest as a non-practising member of the Faculty of Advocates. Perhaps it is more relevant to declare another interest: some 23 or 24 years ago, I tutored conveyancing at the University of Edinburgh and earned an honest crust doing that alongside the man who is now Professor Kenneth Reid.

I declare a further interest: Scott Wortley—who has rightly been praised in the debate—and I are former pupils of Annan Academy. I do not know whether Scott has looked into whether the School Sites Act 1841 applies to our alma mater, but I am sure that, if he has, he will soon flag that up.

Members have perhaps not reflected on other interesting aspects of the bill, although Maureen Macmillan pointed out that, when we talk about sunset clauses, 100 years is perhaps just a twinkle—a small period of time—as far as lawyers are concerned. I also do not know the Parliament's view on the fact that section 80 repeals the Reversion Act 1469, which was passed in the year in which my constituency became part of Scotland. I am not sure whether the two had any connection, given the circumstances in which Orkney became part of Scotland, but that shows in a serious way that the bill is genuinely a reforming measure in tackling issues that have been part of our law for a very long time indeed.

A number of members, particularly Donald Gorrie and Elaine Thomson, raised maintenance and the fact that, where there is silence on the matter in the title deeds provisions, default provisions will allow the power of the majority to instruct maintenance. The Justice 1 Committee's report considered the term "maintenance" in the bill and the Executive considered whether it should also cover improvements. Our view is that the bill is intended to deal with property all over Scotland. We did not think it right to sanction improvements as opposed to maintenance and repair. The committee shares that view, although it has suggested that the Executive should consider any recommendations that the housing improvement task force may make on the matter. I am happy to concur with that suggestion.

Fergus Ewing raised the fact that superiors would continue to be able to enforce burdens. However, he pointed out the existence of the 100m rule and the fact that the Lands Tribunal will have to be satisfied that not preserving the burden would result in material detriment to the property. That was considered at great length during the consideration of the Abolition of Feudal Tenure etc (Scotland) Act 2000. We undertook then to reconsider it in the context of the bill. The balance is difficult to strike, but we believe that the 100m rule strikes the proper balance.

It is also important to point out that, although the 2000 act's day of implementation will be Martinmas 2004, the right to irritate a feu—in other words, to be able to evict and end a feu on the basis of the breach of a condition—has already been abolished. Phil Gallie raised the point about an owner who grew a low hedge along the front of their house in contravention of the title conditions. He claimed that that could lead to repossession. Section 53 of the 2000 act extinguished the rights of irritancy. It is important to point out that the measure has already been implemented.

Lord James Douglas-Hamilton mentioned that local authorities would be given special treatment on clawback. He said that the benefit to the public should be carefully defined. I agree that it is necessary to define carefully the circumstances in which local authorities will be able to impose clawback. I indicated that that would be limited to cases in which it would assist economic development.

On Murdo Fraser's point about private developers and clawback, it is important to point out that the bill amends the law relating to standard securities to permit private bodies and others to make better use of standard securities to secure clawback arrangements.

Understandably, a number of members focused on the issues that relate to sheltered housing. The committee's experience was also that that issue attracted most interest. I have considered, as I have in the past, the points that were made about whether the definition should include the word "retirement". I made it clear in my opening speech, and I repeat, that the Executive's firm intention is that all references to sheltered housing in the bill will include retirement housing. Whether it should be mentioned specifically has been considered. The committee considered it, but was satisfied that the definition of "sheltered housing development" covered retirement accommodation.

We believe that that is the case. As the explanatory notes to the bill point out,

"The contents of the definition are the important consideration, with its emphasis on … facilities and features".

If we were to say, for example, "including retirement", it might be necessary to start to define retirement, which might lead to more problems than it was intended to resolve.

The committee accepted the Executive's argument that the term "sheltered housing development" is meant to and does include retirement complexes. However, members argue that the word "retirement" should be in the bill. That term does not exclude sheltered housing; it is an inclusive term. Does the minister agree that the argument that the committee accepted—that "retirement" is an exclusive term—is not appropriate any more?

Concern was expressed that the term could exclude housing that was specially adapted for people with disabilities. I have considered whether we could have an inclusive definition rather than one that might be considered exclusive. The Executive's concern is that, if we did, we would have to start to define what we mean by retirement. Would it include those who are partially retired? From what age would it be relevant?

Members should take it that there is no dubiety: the definition is intended to include retirement accommodation. However, if an amendment to include the word "retirement" is lodged at stage 2, we will have to return to the argument and give it further consideration.

Sylvia Jackson sought confirmation of the length of the management burden. I indicated that it would be reduced from 10 years to five years. On whether the definition of "manager" should include a company, I do not think that we could say that "manager" refers only to management companies, because that could lead to circumstances in which an individual might not be allowed to exercise the management function. The definition of a "manager" under section 110 includes companies.

Some management companies describe wardens as managers. Could we have clarification of that, at least in regulations?

The definition makes it clear what is intended by the term "manager". I accept that confusion may arise if the term "manager" is applied to wardens, but we are clear about what is understood by and defined as "manager" in section 110. To define a "manager" specifically as a company could mean that some managers were not included, and some people might think that an individual may not be appointed to carry out the job.

Mike Rumbles and Tricia Marwick raised specific issues. I would never wish to give them legal advice, but I ask them to put their points to me specifically, and I will also examine the Official Report. I think that we could better deal with the matters in writing after I have studied what the members said.

Tricia Marwick spoke about the variation of burdens. The bill allows owners of a majority of properties in a community to discharge or vary conditions that apply to all or some of the properties. It is also possible to apply to the Lands Tribunal for Scotland to vary or discharge a burden.

Maureen Macmillan, Lord James Douglas-Hamilton and others raised another important issue concerning the points made to the Justice 1 Committee by Bruce Merchant, a practising solicitor. Indeed, he made some forcible points in the written evidence that he submitted. As I have indicated, if the Law Society of Scotland wishes to make further representations on the matter, we will consider them. However, I do not believe that the position is quite as cumbersome or difficult as it has sometimes been represented as being. It is important to remember that the bill's provisions on acquiescence, for example, if they are realistically applied by a conveyancing solicitor, will mean that it will be unnecessary to acquire a host of agreements. If there were a breach of a burden that had existed for five years without any objection, our proposal on negative prescription would extinguish that burden, so there would be no need to write round everyone, seeking consents.

It is important to remember the provisions under sections 32 and 34. Under section 32, the majority of owners in the common scheme can sign a discharge; it is not essential for everyone to be signed up. The minority will have the right of appeal to the Lands Tribunal. Under section 34, all the owners within 4m can grant a discharge. That indicates that the difficulties are not quite as cumbersome as has been suggested.

The minister has not mentioned the proposed development management scheme, and how rule 4.2 of that scheme might clash with the warden's contract and with the five-year rule.

You have been very generous in accepting interventions, minister, but you will need to make that the last one.

Given that the terms of the development management scheme still have to be devised—amendments will be lodged and parallel work will be done at Westminster—I would want to consider the matter and get back to the member.

Although it has been widely recognised that the bill is highly technical, it will affect conditions that apply to the vast majority of properties in Scotland. With the Abolition of Feudal Tenure etc (Scotland) Act 2000, the bill completes the replacement of what is an old form of land ownership. As members have recognised, this is a major reform of the law, which moves us into the 21st century. Once passed, the bill, together with the 2000 act, will serve as a reference point for conveyancers for many years to come.

We are abolishing a 533-year-old law, so it is interesting to speculate about what might be happening in the year 2535, and how people will look back on this piece of legislation then.

I welcome the consensual, non-partisan way in which the debate has proceeded. I have one thing left to say: I promised the students of St Ninian's Primary School that I would use the word "peedie", which is the Orcadian word for small. No one can say that this is a peedie piece of legislation, and I hope that the Parliament will pass it at stage 1 later today.

I promised to say "Haud yer wheesht." I maybe should have said it earlier.