Title Conditions (Scotland) Bill: Stage 3
The first item of business this afternoon is the stage 3 proceedings on the Title Conditions (Scotland) Bill. For the first part of the stage 3 proceedings, members should have with them the bill as amended at stage 2, the marshalled list, which contains all the amendments for debate, and the groupings list.
Before we start, I draw members' attention to an error in amendment 171, which is on page 34 of the marshalled list. The first line of the amendment reads:
"In schedule 12, page 92, line 2, at end insert".
However, it should read: "In schedule 12, page 91, line 40, at end insert".
I will allow an extended voting period of two minutes for the first division following the debate on the first group of amendments. Thereafter, I will allow a voting period of one minute for the first division after a debate on a group. All other divisions will be 30 seconds.
Section 1—The expression "real burden"
Group 1 is on personal real burdens. Amendment 1 is grouped with amendments 85, 13 to 15, 17, 30, 31, 60, 95, 104, 110, 209, 114 to 117, 122, 211, 212, 123 to 125, 76, 130, 134 and 135.
Amendment 1 paves the way for a large number of amendments that are designed to make the text of the bill more coherent and accessible. The amendments will give a formal recognition to a category of burdens, to be called "personal real burdens". Those are burdens that are held in a personal capacity rather than in relation to benefited land. For example, they include conservation burdens, which are to be held by a designated conservation body. The number of personal real burdens has increased since the bill was introduced—indeed, some of the subsequent amendments this afternoon devise more of them—and many sections contain unwieldy lists of each of the burden types. Defining them under the umbrella term "personal real burdens" will make the bill easier to understand—although I accept that the word "easier" is used in a relative sense.
Amendment 14 will ensure that a personal real burden holder will be notified of an application to discharge burdens under the sunset rule. Amendments 211 and 212 simply reflect the fact that there might be no benefited property owned by an objector to a compulsory purchase order under the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947.
As I have indicated, the other amendments implement the basic point of having a category of personal real burdens.
I move amendment 1.
I should register my interests, as I am an unpaid executor, an unpaid trustee and an unpaid director of a small family company and I am a non-practising Queen's counsel.
I thank the minister for alerting me to the purpose and effect of the Government's amendments. We consider that the clarity of the bill will be much enhanced by the use of the generic term "personal real burden".
In relation to section 110, I have concerns about whether the term "maintenance" will cover the fees of architects, quantity surveyors and solicitors. If the minister is not able to give his view on that now, it would be helpful if he could write to me with the answer in due course.
I am grateful for the support that Lord James has given to the amendments. I understand what he says about maintenance costs and will try to get a response to him either in writing or when we discuss another amendment today, if I have the answer by then.
Amendment 1 agreed to.
Group 2 is on rural housing burdens. Amendment 2 is grouped with amendments 10, 11, 183, 94, 197, 198, 97, 77 and 215 to 217.
Amendment 2 is designed to create a new personal real burden. In this case, the burden is a personal pre-emption burden, to be called a rural housing burden.
The amendments in this group have been lodged in response to amendments that Maureen Macmillan lodged at stage 2. She proposed that certain housing bodies that sell land in the interests of providing local community housing at affordable prices should be allowed to control the subsequent sale of the land by creating a burden over the property.
I am keen to support the work of such bodies and decided, following consultation, that the best way forward would be through the creation of a new personal pre-emption burden that would allow such housing bodies the first opportunity to buy back a property when it is to be sold. However, the use of the pre-emption will be limited to bodies on a list designated by the Scottish ministers under subordinate legislation. The main purpose of those bodies will have to be the provision of housing in rural areas.
Personal pre-emption burdens that are held by rural housing bodies will be treated differently from other pre-emptions in two respects. First, instead of having 21 days in which to accept an offer, a body would have 42 days. As the Parliament will recognise, it can at times be difficult for such bodies to put together a financial package, so the 42 days will allow them additional leeway. Secondly, the body will not lose the right of pre-emption if it is not exercised. It will be available for later sales so that the body can step in if the land is being sold at a high value for private gain rather than for affordable local housing.
The pre-emption will be freely negotiated with the purchaser and could detail the terms under which, and price at which, the property could be bought back. It is possible, in the creation of a pre-emption, to specify the price at which the property can be repurchased. That provision could be used in these circumstances to allow the rural housing body to buy back the property at a similar price to that of the original sale. Clearly, it would be inequitable to force a body that had sold property at a deflated price, such as £30,000, to pay a market value of perhaps up to £80,000 for using the pre-emption.
I am confident that the new category of personal burden will facilitate the provision of affordable rural housing and address the concerns that Maureen Macmillan expressed at stage 2.
Amendments 10, 11, 77, 94, 97, 197, 198 and 215 to 217 make technical and consequential changes that arise from the main amendment, which is amendment 183.
I move amendment 2.
I welcome the amendments. I have one question for clarification. Will the minister outline how he intends to compile the list of prescribed bodies that will be entitled to create rural housing burdens? Will those organisations have to apply to ministers directly, or will ministers send out some type of notification to interested parties so that they can flag up whether they wish to be on the order that the minister plans to lay at a later date?
A rural housing burden will give the rural housing body a pre-emption right when selling land. We welcome the provision. It is a step forward and is altogether reasonable.
Some of the amendments in the group meet the points that the Law Society of Scotland made. I place on record my gratitude to the minister for meeting the Law Society to go through some of the details about which it was concerned. As a result of that meeting, the amendments will greatly improve the bill. I express my thanks to the minister for having lodged them.
I add my support to amendment 2. I am grateful to the Executive for taking on board my concern. It was raised as a result of the Highlands Small Communities Housing Trust asking me whether I could help it to keep its right to control what happens to land that it has banked in remote areas with a view to giving that land to people who will get a rural grant to build a house. The trust was concerned that, if it was not able to impose a feudal condition, such houses could be sold off outside the community. The object of the trust is to keep housing in remote communities for people who live there permanently.
I am grateful to the Executive for considering the matter and finding a way forward. I was on the phone to the Highlands Small Communities Housing Trust only a few minutes ago and it asked me to express its appreciation.
I welcome the general support expressed by Michael Matheson, Lord James Douglas-Hamilton and Maureen Macmillan. Amendment 183 is an illustration of how the Parliament works—and works well. A genuine point was raised with an MSP by a group with an interest. The matter was brought to the Parliament and there was a willingness on the part of Justice 1 Committee members and the Executive to identify a way in which to meet what the committee recognised at stage 2 to be a genuine concern.
Michael Matheson asked how the list of prescribed bodies would be compiled. We intend to publish a draft list before the appointed day, so people will be able to make applications. It is important to hold proper consultation with the Scottish Federation of Housing Associations and with the trust that, with Maureen Macmillan, initiated the amendment.
Subsection (6) of the new section that amendment 183 will introduce states:
"The power … may be exercised in relation to a body only if the object, or function, of the body … is to provide housing on rural land or to provide rural land for housing."
I hope that that will satisfy Mr Matheson.
Amendment 2 agreed to.
Group 3 is on health care burdens. Amendment 3 is grouped with amendments 29, 64, 214, 75, 150, 151, 153, 155 to 158, 220, 159, 162, 168 and 171.
This group of amendments includes amendment 171, which, as you intimated at the start of proceedings, Presiding Officer, has been revised to take account of an error.
Amendment 3 will introduce a health care burden as one of the exceptions to the general rule that burdens must benefit other land. The health care burdens are similar to the economic development value burdens that are available for local authorities.
Amendment 29 is the main amendment in the group and introduces a new section. That new section provides for a new category of personal burdens on land, which will require no benefited property. National health service trusts will be able to create health care burdens in circumstances where they wish to sell land while ensuring that that land continues to be used for the purposes of health care. That could apply, for example, where land is being sold to a developer to build accommodation for hospital staff and nurses. The new health care burden should allow the health body to ensure that the land is developed for that purpose and to secure compensation if another type of development occurs. That could be achieved by imposing a burden, including a clawback condition, if there is likely to be a windfall increase in the value of the land as a result of the change in use. The new section specifically provides that the burden may comprise or include an obligation to pay money.
It is intended that health care burdens will also be available for the Scottish ministers to use in their property ownership role in relation to health boards. It will be possible for a body other than a health trust or the Scottish ministers to create a health care burden, but it would be necessary for that body first to obtain the consent of the trust or the ministers whom they intend to have the right to enforce the burden.
Amendment 214 builds on amendment 29 by allowing a feudal burden that was imposed in the past for the same purposes and that is enforceable by a health trust or the Scottish ministers to be converted into a health care burden. The remaining amendments in the group are consequential on amendments 29 and 214.
There is a strong public interest in the protection of public funds. The amendments in this group are motivated by the compelling argument that, when the public sector is selling or giving land for health care purposes, there should be the means of protecting the purpose of the transfer of the land and the public funds involved.
I move amendment 3.
We support the amendments. The measure clearly favours NHS trusts or the Scottish ministers and the burdens would be available only for the purpose of promoting the provision of health care facilities. That would be to the benefit of the NHS and we are glad to support the amendments.
Amendment 3 agreed to.
Section 3—Other characteristics
Group 4 is on community burdens. Amendment 4 is grouped with amendments 177, 178, 19 to 22, 179, 25, 26, 180 to 182, 63, 202 and 139 to 146.
This group contains technical amendments to the provisions relating to community burdens. Amendment 4 clarifies that, where a deed of variation or discharge is granted under section 32, there is no need for each and every person with the right to enforce a title condition to sign a deed of variation for that variation to take effect.
Amendments 177, 178 and 202 will ensure that a majority can impose a new burden in addition to being able to vary or discharge community burdens. That reflects no change in policy.
Amendments 19, 20, 22, 25 and 26 relate to provisions on the variation and discharge of community burdens by the owners of units within a community. The amendments simply make it clear that the units in question are units in a community of mutually enforceable community burdens, which are subject to the rules on variation and discharge under part 2 of the bill. Amendment 21 is a drafting change.
On amendments 179 to 182, section 32 allows a majority to vary or discharge burdens applying to the community as a whole. However, a dissenting owner can apply to the Lands Tribunal for Scotland to stop the change. A successful objection would mean that the burden would be varied or discharged only by the owners who signed the deed trying to make the change—that is, the majority. Those who did not sign should not be affected. The bill already provides for that in respect of a minority owner's right to enforce a burden, but it is possible that the language used means that a modified burden could be enforced against them. That is not desirable and amendments 179 to 182 remove that possibility.
Amendment 63 will allow the granters of a deed of variation or discharge under section 34 to register the relevant deed. Amendments 139 to 145 are largely technical drafting amendments to simplify the notes for schedule 4, which sets out the form of notice to be used to intimate a proposal to register a deed of variation or discharge under section 33 of the bill.
I move amendment 4.
Amendment 4 agreed to.
Section 4—Creation
Group 5 is on the development management scheme. Amendment 5 is grouped with amendments 62, 87 to 93, 192, 204, 208, 127 and 73.
Members will recall that the development management scheme, which was introduced at stage 2, is an optional example of good practice that owners will be able to adopt or adapt. The scheme was originally recommended by the Scottish Law Commission as a set of general principles. It can therefore be fine tuned to allow for circumstances of particular developments.
This group of amendments clarifies the operation of the application of the development management scheme. The amendments make it clear that the scheme, which will be set out in an order under section 104 of the Scotland Act 1998, will be the only scheme to be applied by deed of application under section 65A. That will avoid the possibility that rules may be applied by reference to a document that was not registered in the property registers. The amendments will mean that any additional rules to form part of the scheme—permitting only residential use or prohibiting alterations or the parking of commercial vehicles, for example—must be set out in the deed of application.
Amendment 88 makes it clear that the deed of application may vary the scheme as specified in the deed, but only in so far as the terms of the section 104 order permit. Amendment 90 is the principal amendment in the group. It will add a new subsection that specifically relates the development management scheme to the section 104 order to be made in consequence of section 65A.
Amendments 62 and 92 are intended to confirm that the default rules in section 59, on the appointment and dismissal of a manager, do not apply to a manager appointed under a development management scheme. The scheme may be disapplied by registration of a deed of disapplication. It is possible for such a deed to create new burdens for the management of the development in future.
Amendment 192 ensures that new burdens will not be imposed if there is an outstanding application to the Lands Tribunal for preservation of the scheme. Amendment 204 is largely technical, relating to the acquisition of land by agreement in circumstances in which it could have been acquired compulsorily.
Amendment 208 provides in section 93 that an order of the Lands Tribunal preserving a development management scheme may be registered in the property registers. The remaining amendments in the group are consequential.
I move amendment 5.
Most of the amendments in the group clarify that the development management scheme, and not any other scheme, will benefit from the provisions of the bill. That is entirely appropriate and we welcome the amendments.
I welcome the development management scheme. The Sheltered and Retirement Housing Owners Confederation, with which I have been closely associated, has long been concerned about the issue. It is most welcome that transparency is to be brought to the accounting system and management of sheltered and retirement housing.
I would like the minister to confirm that owners of units will be responsible, possibly under the contract arrangements for the managing company, for using the new scheme or framework, which Westminster will develop and which will not be mandatory.
I do not want to anticipate every detail, but it would certainly be the case that the owners of a unit would require unanimity to get a development management scheme. However, even without a development management scheme, it would still be possible under an employment contract for accounting to be transparent, because the owners employ the manager. I know how important transparency in the accounts of such schemes is to the owners. I hope that Sylvia Jackson will be assured that the transparency that she seeks should be facilitated not only by the development management scheme, but by provisions in the bill as a whole. I welcome Lord James Douglas-Hamilton's support.
Amendment 5 agreed to.
Section 5—Further provision as respects constitutive deed
Group 6 relates to specification of the amount payable in respect of an obligation. Amendment 6 is grouped with amendments 173 and 174.
Amendment 6 is intended to clarify the operation of section 5(1). It distinguishes between an obligation to pay the whole cost of, for example, maintenance or repair and an obligation to contribute only a share or proportion of the cost.
If a real burden imposes an obligation to pay for the maintenance of a facility, the cost cannot be specified in the burden because it is impossible to know what the cost of maintenance will be at any point in the future. Some deeds may stipulate that the obligation is to pay for a specific share of the maintenance cost. Others may base the obligation to bear a share of the cost on feu duty or rateable value. In such cases, the burden sets out the way in which the proportion of the costs payable is to be arrived at.
The intention behind section 5(1) was to remove doubt in the existing law that it should not be necessary to specify an amount payable towards an obligation to pay some cost, as long as some method is provided for calculating liability.
Amendment 6 clarifies the distinction between a situation in which a real burden imposes an obligation to pay the whole of a cost and a situation in which the burden imposes an obligation to pay only a proportion or share of the cost. It distinguishes between the expressions "defray" and "contribute towards" to make it clear that an obligation to defray relates to paying the whole cost of an obligation, whereas an obligation to contribute towards relates only to an obligation to pay a share or proportion.
Amendment 6 also makes it clear that a share or proportion of the cost can be arrived at in a way specified in the deed. By contrast, where an obligation is to pay the whole amount, there is no need to refer to the way specified in the deed by which a proportion can be arrived at.
I propose not to move amendments 173 and 174. Having considered the matter with the benefit of advice from the Scottish Law Commission, we believe that the amendments are unnecessary. The common law already allows for rights of pre-emption as set out in the amendments. If the amendments were agreed to, that might cast doubt on deeds that are already extant and operating normally.
I move amendment 6.
Amendment 6 agreed to.
Amendments 173 and 174 not moved.
Section 6—Further provision as respects creation
Group 7 relates to the right of ownership held pro indiviso and the right of pre-emption. Amendment 175 is in a group on its own.
I have lodged amendment 175 on behalf of the Scottish Law Agents Society as a probing amendment. The amendment is intended to support part-owners.
At present, real burdens, including rights of pre-emption, are incompetent in relation to pro indiviso shares. Section 4(6) of the bill restates the existing law. It has been recognised that rights of pre-emption continue to serve a useful purpose and should be retained. A right of first refusal is to be conferred on one owner over the property of another. If it is useful for one owner to have that right over another property, it could be even more useful for a pro indiviso owner to have it over the other pro indiviso shares.
Where title is taken in joint names, such a device could be usefully employed to prevent one owner from selling his share to a third party. I gave the minister notice of the case of Smith v MacKintosh, which appears on page 148 of The Scots Law Times of 1989. In that case, a daughter sold her property to live with and nurse her mother on the understanding that the mother's house would be put into joint names. However, while the mother and daughter were living together, the mother made over her share to a son and defeated the daughter's reasonable expectations.
Communities Scotland and its predecessor, Scottish Homes, have promoted shared ownership for many years. The complex shared ownership agreements that are necessary might be simplified by permitting pre-emption rights between owners. Amendment 175 could benefit arm's-length, pro indiviso proprietors. It might also be of use in time-share developments, although those are usually intermediated through trusts. Time-shares of salmon fishing, where titles are taken directly, might also benefit. I look forward to hearing what the minister has to say on the issue.
I move amendment 175.
I thank Lord James Douglas-Hamilton for explaining the intention behind amendment 175. It appears that he seeks to allow the creation of rights of pre-emption over pro indiviso shares of property. As he indicated, the principal effect of that would be to give one pro indiviso owner the first option to buy the other share in the event that it came up for sale.
I have no objection in principle to the concept, although the cases in which the proposed provision might be necessary are few and far between. It is not clear whether a mother and daughter, or a husband and wife, for example, would want to put such an arrangement into a deed when everything was going swimmingly.
The difficulty with amendment 175—and the reason why I ask Lord James Douglas-Hamilton to consider withdrawing it—is that it is technically flawed. Section 6 does not appear to be the appropriate part of the bill for amendment 175 to seek to amend. Section 6 refers to the creation of burdens by importing them from a deed of conditions, which would have to have been registered before the appointed day. That means that any right of pre-emption that was caught by amendment 175 would have to have been set out in a deed of conditions that had been registered before the appointed day.
It is unlikely that many such pre-emptions exist, not least because it is unclear whether it is possible to create them under current law. Because of that uncertainty, the Scottish Law Commission recommended that it should be made clear that burdens could not be created over pro indiviso rights. I do not believe that it was Lord James Douglas-Hamilton's intention to restrict pre-emption rights to those that were created after the appointed day by reference to pre-appointed day deeds of condition.
Amendment 175 is also flawed in the language that it uses. The insertion that it proposes would mean that the pre-emption would be treated as a right of ownership that was held pro indiviso. That cannot be the intention. The right of pre-emption is the burden, not the burdened property. The pro indiviso share would be the burdened property and the pre-emption would be created against that land.
Although there is some merit in the principle of Lord James's proposal, amendment 175 cannot be supported for serious technical reasons. At some stage in the future, legislation might be introduced that would allow the issue to be dealt with but, at present, I do not see how the proposal could work as intended. Therefore, I ask Lord James to withdraw amendment 175.
If we assume that amendment 116 will be agreed to, the minister will have the power to make incidental or transitional provisions and to amend the bill. Therefore, it would be appropriate for me to withdraw amendment 175. If there is considerable demand in future, I hope that the minister will note that I have put down a marker and that the matter will be returned to in due course.
Amendment 175, by agreement, withdrawn.
Section 8—Right to enforce
Amendment 85 moved—[Mr Jim Wallace]—and agreed to.
Section 16—Acquiescence
Amendment 7 is grouped with amendments 8, 9 and 80.
The amendments in this group seek to alter the rules on acquiescence in section 16. They arise from concerns that were expressed during the first two stages of the bill's progress. In his evidence to the Justice 1 Committee at stage 1, the solicitor Mr Bruce Merchant raised such concerns. Maureen Macmillan and Lord James Douglas-Hamilton took up those concerns and Lord James asked me to meet the Law Society of Scotland to discuss them. I can confirm that a productive meeting took place and that amendments 7, 8, 9 and 80 are the result of it.
The effect of the changes will be that, where the owners of benefited properties give consent to a breach of a burden, there will be no requirement for the consent of any tenant, any non-entitled spouse or proper life-renter.
The amendments will also clarify that only those who would actually be able to enforce the burden are required to give their consent. That means, for example, that consent is not needed from owners of a distant property who, in spite of having a title to enforce, would not have any interest in doing so because the particular breach would not be to the detriment of their property. In this case, a burden could be extinguished, but only to the extent of the actual breach, without the consent of that distant owner.
Amendment 80 is a technical amendment to the provisions of section 111(1)(a). The amendment will mean that the meaning of the expression "owner" is applied to section 16, which deals with acquiescence. That means that "owner" will be defined for the purposes of a section 16 consent in the same way as it is for a section 15 discharge.
I move amendment 7.
We welcome the amendments. I thank the minister for meeting the Law Society and for dealing with the matters so effectively.
I want to ask one question about amendment 9. If I may say so, it is not entirely clear what would happen to a burden in the event of the death of the person who has the interest to enforce. For example, is it envisaged that executors will, on the death of the person, be vested with an automatic interest to enforce? If the minister does not have the reply now, I would be most grateful if he could write in due course.
I am not sure that I ever understood quite what was going on in this bit of the bill, but I know that solicitors in Inverness were extremely anxious that changes should be made. They felt that the bill would complicate conveyancing in a small number of cases if somebody had breached a burden. The solicitors were worried that the bill would mean more expense for their clients. I am pleased that the issue has been brought to a satisfactory conclusion and I thank the Executive for its interest in the matter.
I thank Lord James and Maureen Macmillan for their support. Maureen Macmillan said that she was never quite sure of all the detail that lay behind the solicitors' concerns, which, it would be fair to say, were forcibly and firmly pressed. I can confirm that our meeting with Mr Merchant and with other members of the Law Society's conveyancing committee was stimulating. Alasdair Morgan's laugh suggests that he does not believe that, but I can assure him that it was quite a good joust. We tried to tease out some of these difficult technical issues. I know that the concerns were motivated by the need to deal with the practicalities of the issues.
The Executive's policy is based on the principle of equal treatment for property owners. Although it may have been simple to operate, the old system of obtaining consent from a feudal superior to the breach of a burden had fallen into widespread disrepute. It is self-evidently more equitable to allow those with the most immediate interest in title conditions to enforce them.
The Executive's proposals will simply put communities with limited enforcement rights in the same position as those that already have full neighbour enforcement. It is worth emphasising that those schemes work perfectly well at the moment and that we are not aware that there is any problem with them. We are now extending that principle to other schemes. We expect the system to continue to operate satisfactorily in all communities.
In response to Lord James's question, title and interest in these real burdens—as distinguished from the personal real burdens that we discussed earlier—rest in the property rather than with the individual. Therefore, the real burden does not extinguish with the death of any owner. Those who, on the owner's death, step into the owner's shoes would certainly have a title. The interest would obviously depend on the particular circumstances of the case.
Amendment 7 agreed to.
Amendment 8 moved—[Mr Jim Wallace]—and agreed to.
After section 16
Amendment 9 moved—[Mr Jim Wallace]—and agreed to.
Section 17—Negative prescription
Amendments 10 and 11 moved—[Mr Jim Wallace]—and agreed to.
Section 19—Notice of termination
Amendment 12 is grouped with amendments 16, 203, 107, 108, 118, 119, 128, 129, 133, 136, 137 and 138.
At stage 2, the bill was amended to allow applicants to the Lands Tribunal for Scotland to apply to vary a burden as well as to apply for discharge or renewal. As a result, the amendments in the group make consequential changes to various parts of the bill.
Amendments 107 and 108 are technical drafting amendments that will help to clarify the operation of sections 87 and 88.
Amendment 138 relates to schedule 4, which sets out the form of notice to be used to intimate a proposal to register a deed of variation or discharge under section 33. It is intended to amend the heading of one part of the notice to give further clarification.
I move amendment 12.
Amendment 12 agreed to.
Section 20—Intimation
Amendments 13 to 16 moved—[Mr Jim Wallace]—and agreed to.
Section 23—Effect of registration of notice of termination
Amendment 17 moved—[Mr Jim Wallace]—and agreed to.
Section 25—Creation of community burdens: supplementary provision
Amendment 18 is grouped with amendments 24, 43 to 47, 61, 109 and 78.
At stage 2, Sylvia Jackson lodged an amendment that added to the definition of sheltered housing in section 50(3) the words
"and includes retirement housing and retirement accommodation."
The Executive accepts that retirement housing should be expressly defined in the bill. We have accepted that there might be a danger that some developers might try to avoid or ignore the provisions of the bill by trying to persuade residents in developments that are described as retirement housing that, because there was no express reference to retirement housing in the bill, it did not apply to those developments. As a result of what we intend to do to the bill, I hope that that scenario will not now arise.
I hope that members will be satisfied that the Executive has responded positively to representations that it has received on the definition of sheltered and retirement housing, as well as on other aspects of the bill that impact on forms of sheltered and retirement accommodation. In other amendments to be considered today, we are seeking to reduce the maximum period of manager burdens in sheltered housing to three years, and to introduce a requirement of prior consultation before burdens are varied or discharged. In addition to the other provisions of the bill—particularly the introduction of majority voting rights—we intend to introduce a substantial package of help for people who live in sheltered housing.
In conjunction with the Abolition of Feudal Tenure etc (Scotland) Act 2000, the bill will make a substantial change to prevailing arrangements for the management of such complexes. That will allow residents in sheltered and retirement housing to exercise a much greater degree of control over the developments in which they live.
The purpose of amendment 18 is therefore to revise the words that were inserted at stage 2, and to give effect to them.
I move amendment 18.
I particularly welcome amendment 18, which introduces the term "retirement". The minister will be aware that, at stage 1, the Justice 1 Committee was persuaded by the Executive's argument that the term "sheltered housing" would suffice to ensure that retirement accommodation was included.
However, at stage 2 it became clear that concern remained about whether there was a possible loophole to be addressed. There was always the possibility that unscrupulous property managers or developers might try to use the term "sheltered housing" as a loophole, by saying that the bill did not apply to retirement accommodation. Amendment 18 closes the loophole and reduces the possibility of someone exploiting it.
The clarification is important for those in sheltered and retirement housing. It is a response to legitimate representations and we welcome the amendments.
The section in the bill that deals with sheltered housing has been greatly improved. It is welcome that the minister has improved it and made certain concessions. There are a couple of relatively minor issues coming up on which there is some dispute, but, as a package, the amended bill benefits the community in sheltered and retirement housing and is to be welcomed.
It is comforting to see that the Executive has moved on the issue, in spite of the fact that it took the initial view that the word "retirement" did not need to be inserted. The Executive has recognised that that is a significant wish and has seen the merit in it, and it is to the great credit of the Executive that it has lodged amendments 18, 24, 43 to 47, 61, 109 and 78. The changes that they will make will go a long way—if not almost all the way—to satisfying the wishes of those who have made representations on the matter. I commend the Executive for doing so.
I thank members for the welcome that they have given to the changes. It is right to say that we have changed, which is a tribute to those who identified an issue, persisted with it and persuaded ministers that to put the matter beyond doubt and to give reassurance—which clearly was not given by the initial wording—we needed amendments, which were initially introduced by Sylvia Jackson, and which are now clarified by the amendments in the group. It is an example of how what has sometimes been seen as a technical piece of legal legislation can bring some practical benefit to an important section of our community.
I pay tribute to the efforts that were made by the Sheltered and Retirement Housing Owners Confederation, and I also thank Age Concern Scotland for the advice that was provided to the Executive on this area.
Amendment 18 agreed to.
Section 28—Power of majority to instruct common maintenance
Amendment 176 is in a group on its own.
I lodged amendment 176 to highlight the situation that faces pensioners who might enjoy only shared ownership of their flat in a retirement complex. The Executive clarified at stages 1 and 2 that the majority owner of a flat can exercise the unit's voting rights. However, my colleague Sylvia Jackson, through the Sheltered and Retirement Housing Owners Confederation, has highlighted that although some shared owners might own only 70 per cent or less of the equity, they are invariably responsible for 100 per cent of the maintenance and service charges. It would seem to be only fair that co-owners should divide the bill according to their share of the property. I would welcome clarification on that point from the Executive.
I move amendment 176.
We do not believe that amendment 176 is necessary, because payments from co-proprietors are already dealt with in the bill. Section 11(5) contains a similar provision on the situation in which property is owned by more than one person. That section states:
"If two or more persons own in common a burdened property as respects which an affirmative burden is created then, unless the constitutive deed otherwise provides—
(a) they are severally liable in respect of the burden; and
(b) as between (or among) themselves, they are liable in the proportions in which they own the property."
If the title deeds, however, provide for a different split, the title deeds are given precedence. I think that Parliament would agree that it would not be appropriate to impose a mandatory rule across the board. It seems to be preferable to allow individuals to agree specialist arrangements for particular circumstances.
Section 11 also provides for several liability in respect of burdens for payment, the advantage of which is that where neighbours seek payment in contribution of some common repair, they need not hunt down all the absent owners of a particular unit, or try to obtain information, or settle disputes as to each co-proprietor's share.
I suppose that this is the same issue that I asked about previously, which is how the bill will be implemented. How would owners of a unit move so that 30 per cent of the maintenance were paid by the manager?
The presumption is that the manager is liable for 30 per cent, or at least that the division is a 70:30 split. That is the first requirement. The second requirement is that there is nothing in the title deeds or contract between the parties that would declare otherwise. If, having voluntarily entered into an agreement, the title deeds reflect a figure of 100 per cent, the provisions in section 11(5) would not apply. That is, in some respects, the default position. If nothing else is said, and the parties have not reached an agreement, they will be liable in the proportions in which they own the property. Sylvia Jackson's example was a 70:30 split.
One would hope that in such circumstances, where the liability was clear, the manager or the person with the 30 per cent liability would pay up, because the alternative would be court action to recover the sum. That would be a further waste of time and money if it were evident that the sum was due.
If a party has no liability under the community burdens, section 28(2)(b) cannot require them to deposit any money. If the deeds set out the respective liabilities of the common owners, the owners can be required to deposit only the share that is specified in the deeds. Co-proprietors should settle that among themselves. When a formal shared equity arrangement has been made, the matter is likely to have been provided for in the contract. As section 11 makes more comprehensive provision, I hope that Kenneth Macintosh is prepared to withdraw amendment 176.
I welcome that clarification. I understand that, unless co-owners sign a deed that binds them to pay 100 per cent of the maintenance and service charges, the default position is that they are liable for their own share. I welcome that and seek agreement to withdraw amendment 176.
Amendment 176, by agreement, withdrawn.
Section 31—The expressions "affected unit" and "adjacent unit"
Amendment 177 moved—[Mr Jim Wallace]—and agreed to.
Section 32—Majority etc variation and discharge of community burdens
Amendments 178 and 19 to 21 moved—[Mr Jim Wallace]—and agreed to.
Section 33—Variation or discharge under section 32: intimation
Amendments 22 and 179 moved—[Mr Jim Wallace]—and agreed to.
Amendment 23 is grouped with amendments 50, 86, 58, 59 and 147.
Amendments 23 and 59 will make drafting changes. Amendment 50 will amend a reference to section 32 so that no change to a restriction on age in a sheltered housing development may be made either by a manager who is authorised by the majority to vary community burdens, or by majority voting.
Amendment 86 will provide for prior consultation of all owners of sheltered housing before a burden can be varied or discharged under section 32. Consultation will take place by prior notification to all owners of sheltered housing before a deed of variation or discharge can be granted. The notification will be called a community consultation notice. Amendment 86 will have a similar effect to that which an amendment that Kenneth Macintosh lodged at stage 2 would have had. At stage 2, the Executive agreed to consider the points that were made in the debate on that amendment, so I am happy to have lodged an Executive amendment that reflects that debate.
Amendment 147 will provide for the form of notice that is to be given to invite comments on proposals to vary or discharge community burdens in sheltered housing developments.
Amendment 58 aims to reduce from five years to three years the maximum time that is allowed for a manager burden for sheltered housing only. At stage 2, we agreed to lodge an amendment on that—I have pleasure in implementing that undertaking.
I move amendment 23.
I welcome the amendments, because concern was expressed at stage 2 about the process for consulting all owners in a sheltered housing complex or retirement home accommodation. The amendments will provide for consultation before a deed is granted under section 32. That is to be welcomed because it will give residents notice that variation or discharge of a community burden is being sought. In combination with amendment 147, which outlines the form of the notice that will be provided to residents, amendment 86 will enhance the bill and will ensure that those who have an interest are notified when a request to change, vary or discharge a community burden has been made.
I welcome the Executive's lodging of an amendment to reduce the manager burden so that it will expire after three years. Does that mean that, for the majority of current residents in retirement complexes, the manager burden will expire when the bill is implemented in November 2004?
I would love to give a definite answer to that. I think that I am right in saying that the three years run from introduction and that therefore a burden would expire by 2004, but I will confirm that when I speak to subsequent amendments on sheltered housing.
Amendment 23 agreed to.
Section 34—Variation and discharge of community burdens by owners of adjacent units
Amendment 24 moved—[Mr Jim Wallace]—and agreed to.
Section 35—Variation and discharge under section 34: intimation
Amendment 25 moved—[Mr Jim Wallace]—and agreed to.
Section 36—Preservation of community burden in respect of which deed of variation or discharge has been granted as mentioned in section 34(1)
Amendments 26 and 180 to 182 moved—[Mr Jim Wallace]—and agreed to.
After section 41
Amendment 183 moved—[Mr Jim Wallace]—and agreed to.
Section 42A—Economic development burdens
We move to group 13. Amendment 184 is grouped with amendments 28, 213, 67 and 74.
Amendment 184 is a probing amendment, which was also lodged on behalf of the Scottish Law Agents Society as a result of the local authorities' plea for a special case to be made for them to be allowed to have development value burdens as economic development burdens. That category of burden was created and is to be found under section 42A of the bill. Typically it will permit an uplift in the price on the occurrence of a subsequent event, which one suspects will be the grant of planning consent for a particular development.
The view of the Scottish Law Agents Society is that that is a type of pecuniary real burden, which would more appropriately be dealt with by way of a standard security. However, the point at issue is that, at common law, pecuniary real burdens are ranked according to their recording date. Section 42A, however, is silent as to ranking.
The proposals that are set out in amendment 184 make explicit the ranking rules between an economic development burden and a standard security or floating charge. In respect of floating charges, we have anticipated the reform of the time of creation of a floating charge, which is presently the date of execution. The Scottish Law Commission's discussion paper "Registration of Rights in Security by Companies" proposes a change to the date of registration, which is consistent with Scottish theories of the creation of real rights by registration and publication.
I lodged amendment 184 as a marker to allow the issue to be examined before legislation on floating charges is introduced and before the Scottish Law Commission has examined rights in security. I look forward to hearing what the minister has to say on the subject.
I move amendment 184.
I am grateful to Lord James Douglas-Hamilton for airing the issue. Amendment 184 seeks to treat a clawback arrangement that is set out in the economic development burden as if it is a debt that is secured by standard security. The payment that may become due under the economic development burden is not heritably secured on the land. It is therefore not appropriate to attempt to arrange a ranking between it and a standard security, which is a heritable security.
One of the purposes behind section 42A(3) is to allow local authorities to put in place clawback provisions without having to resort to standard securities. The ability of a local authority to tie to the land the personal obligation to pay, rather than to rely on a personal contract backed by a standard security, is exactly what is represented by the innovation in the law that has been made under the provisions of the bill.
It is therefore no accident that there are no provisions to rank the obligations that are set out in the burden with obligations that are secured by standard securities. Amendment 184 seeks to equate two types of obligation, which are—and are intended to be—quite different types of legal obligation.
Furthermore, amendment 184 is both unnecessary and unlikely to achieve its aims. It is unnecessary because only one party, which will be the local authority or the Scottish ministers, will ever be entitled to payment in terms of the economic development burden. That is because section 42A(4) prohibits assignation of an economic development burden, which means that it is possible for the creditor to enter with complete confidence into contractual relations with the local authority in order to regulate what is to happen in particular circumstances and on occasions when the local authority would be obliged to discharge the burden. There is no need for a provision in the bill to allow the local authority to enter into such contracts.
Amendment 184 is unlikely to achieve its aims, because the debt constituted by the economic development burden runs with the land and will not be extinguished on the sale of a burdened property by heritable creditor. It is therefore of little use to the creditor to have a security ranked ahead of the obligation to pay the local authority, because no purchaser is likely to accept the continuing obligation to pay the local authority unless that obligation is reflected in the price. I hope that that explanation will allow Lord James Douglas-Hamilton to seek to withdraw amendment 184.
The other amendments in the group are technical amendments. The purpose of amendment 38 is to make it possible for the holder of an economic development burden to discharge the burden, even in circumstances in which the holder has not completed the title to the burden in the property registers.
Amendment 213 makes it clear that a local authority or the Scottish ministers will have title to enforce, and will be presumed to have interest to enforce, a converted economic development burden that has been the subject of a notice registered in the property registers.
Amendment 67 will incorporate the terms of sections 41 and 42 of the Abolition of Feudal Tenure etc (Scotland) Act 2000 on registration of a notice to convert an appropriate feudal burden into an economic development burden. Section 41 of that act requires the superior to give notice to the burdened proprietor of the proposal to re-allot the burden. Section 42 of that act stipulates that, where the superior has a choice of the procedures under the 2000 act that may be used to save a burden, the various courses open to the superior are mutually exclusive.
Amendment 74 clarifies the definition of economic development burdens in section 110 to the effect that the provisions of subsections (1) to (3) of section 42A are not applied to converted economic development burdens.
I am delighted with the explanation and I am glad to seek to withdraw amendment 184.
Amendment 184, by agreement, withdrawn.
Amendment 28 moved—[Mr Jim Wallace]—and agreed to.
After section 42A
Amendment 29 moved—[Mr Jim Wallace]—and agreed to.
Section 43—Interest to enforce
Amendment 30 moved—[Mr Jim Wallace]—and agreed to.
Section 44—Discharge
Amendment 31 moved—[Mr Jim Wallace]—and agreed to.
Section 45—Extinction
Amendment 32 is grouped with amendments 34 to 38, 40, 42, 52, 69 and 70.
People who look at the amendments in the group will see that the word "constitutive" is repeated many times. The amendments will rectify a technical problem in the current wording of some sections in part 4. In order that they will apply, the sections require burdens to be imposed in a constitutive deed. It is now thought that the word "constitutive" might be too restrictive and that it might exclude some cases where the so-called constitutive deed—in this case, typically a deed of conditions—does not impose the burdens, but instead sets out the terms of the burdens that are subsequently imposed by a conveyance that refers to the constitutive deed. The amendments will remove that problem.
Amendment 42 will make a technical change to section 50 and amendments 69 and 70 will make similar technical changes.
I move amendment 32.
Amendment 32 agreed to.
Section 47—Duties of Keeper: amendments relating to unenforceable real burdens
Amendment 33 is grouped with amendments 71, 126, 72, 79, 131, 132, 148, 149, 152, 154, 160, 161, 164, 165, 167, 169 and 170.
Amendments 71, 72, 79, 126 and 161 will make technical adjustments to definitions.
Amendments 33 and 160 will bring section 47(3) of the Title Conditions (Scotland) Bill and section 46(2) of the Abolition of Feudal Tenure etc (Scotland) Act 2000 into line with section 6(1)(e) of the Amendment of Land Registration (Scotland) Act 1979.
Amendments 131 and 132 are technical amendments that are consequential on the insertion of section 19(6).
Amendments 148, 149, 152, 154, 160, 161, 164, 165, 167, 169 and 170 will introduce further enhancements to the Abolition of Feudal Tenure etc (Scotland) Act 2000 and amendments 152 and 167 will add certain rights of enforcement to the list of exceptions in section 17(3) and section 54(3) respectively of the 2000 act. That will ensure that, in relation to a right to enforce a burden or other right that is preserved under that act, it will be possible to continue to enforce those rights by using an existing court order or without having to recommence proceedings after the appointed day in November 2004. Amendments 148, 149, 164 and 165 are consequential amendments.
Paragraph 4 of schedule 12 will remove from the Scottish ministers a power to prescribe a period during which applications to the Scottish Lands Tribunal by superiors to re-allot real burdens are competent. Amendment 154 makes it clear that such applications will have to be made before the appointed day.
Amendments 169 and 170 will simply change the date of commencement of section 63 of the Abolition of Feudal Tenure etc (Scotland) Act 2000 from the appointed day to a day to be prescribed by the Scottish ministers.
I move amendment 33.
Amendment 33 agreed to.
Section 48—Common schemes: general
Amendments 34 to 38 moved—[Mr Jim Wallace]—and agreed to.
That takes us to group 16, which is on related properties in common schemes. Amendment 39 is grouped with amendments 41, 185, 51, 53, 190, 190A, 55, 55A, 56 and 57.
The Executive's policy is that all common schemes should receive equal treatment under the bill and that the drafting language that is used by individual conveyancers should not result in identical estates having completely different enforcement rights. The underlying aim is to have a consistent and coherent pattern of enforcement rights for common scheme burdens.
Amendment 190 will further that principle and make some technical changes that will ensure that every scheme in which it has been attempted to impose burdens will, in the future, be a community for the purposes of the bill. That will be achieved by breathing life into burdens that the original seller tried but failed to create because of deficiencies in the technical conveyancing language that was used in the deed. A burden will be treated as having been imposed and a property will be treated as being subject to a common scheme if that would have been the case had a benefited property been expressly nominated.
Amendments 190, 55 and 56 will ensure that rights will not be created accidentally in respect of breaches that occur before the appointed day. Amendments 39, 41 and 57 are consequential amendments.
A burden that gives a power to appoint a manager can be considered to be a facility burden in that it regulates the management of facilities that are of benefit to other land. Amendment 53 will exclude manager burdens from the category of facility burdens for the purposes of section 51. That is because a manager burden confers on a specified person the power to act as, or to appoint, a manager—it is a personal real burden. The effect of section 51 is to give rights of enforcement of facility burdens to all owners of land whose property benefits from the facility or constitutes that facility.
Lord James Douglas-Hamilton seeks to delete section 48A, the purpose of which is to ensure that amenity burdens in all housing estates or tenements should be mutually enforceable by the owners of houses in the estate or flats in the tenement. A large majority of respondents to the consultation were in favour of amenity burdens' being treated in the same way, irrespective of whether rights had been granted expressly to owners in the original deeds, or had arisen by implication under existing law. Section 48A also creates rights for neighbours in schemes where at present only the feudal superior can enforce.
The law in this area is exceptionally difficult and complicated and the question whether neighbours can enforce burdens in common schemes often relates to the particular legal language that an individual solicitor adopted. When the feudal system is abolished, there might be many estates where there could be burdens but no one to enforce them. The conditions play a valuable role in protecting the amenity of housing; without them, the quality of the housing stock might be eroded. That is a particular issue in mixed-tenure estates, where council tenants have expressed their right to buy. The Executive regards as highly unattractive the prospect of housing estates in which none of the amenity burdens are enforceable. It is important to remember that many so-called amenity burdens impose a duty to maintain properties.
Because of the uncertainty of the existing law, the almost arbitrarily different treatment of similar schemes and the danger of having schemes in which there are no enforcement rights, we decided to treat in the same way all properties that are related to one another and that are subject to a common scheme. The idea is to allow each neighbour in a scheme of related properties to enforce the conditions that affect the community, regardless of the particular conveyancing language that was used at the time of sale. That is what section 48A will achieve.
Amendment 185 would remove section 48A, which would perpetuate some of the inadequacies of the existing law. The amendment would continue the confusion over whether, and by whom, burdens in a scheme are enforceable and it would result in there being communities in which nobody could enforce the title conditions. The arguments behind amendment 185 concentrate too much on the perspective of an owner trying to avoid a burden that affects his or her property—from that point of view, burdens might be regarded as a nuisance that should be made easy to remove. That is one reason why some people argue against an extension of enforcement rights to all owners in common schemes.
Our position is that those obligations can play a valuable role in protecting the amenity of housing estates. It is dangerous to assume that a benefited proprietor trying to enforce a burden is always acting unreasonably. In fact, the burdened proprietor agreed to the burden when the property was purchased. The bill therefore adopts a balance between treating burdens as useful rights and allowing ways for them to be removed if appropriate. It is not difficult to think of circumstances in which neighbours would have a real interest in enforcing burdens that, if they were breached, might have a seriously detrimental effect on the value and enjoyment of their property.
Section 48A simply applies the position for the large number of schemes where rights already exist to the minority of communities where there will be no rights following feudal abolition. Those schemes will be put in the same position as the majority of housing estates; I cannot readily see why that should pose a problem. It is not as if the burdens do not already exist; it is just that enforcement lies solely with the superior. It is clear to me that neighbours are the most appropriate custodians of those rights.
As a corollary to the extension of rights, the bill will introduce a wide variety of tools to assist in the legitimate discharge of unnecessary burdens. Amendments 7, 8, 9 and 80 will also simplify the obtaining of consents in relation to breaches. I remain committed to the policy of treating amenity burdens in housing estates in the same way, irrespective of how they came into being. I fail to see how the alternative that is proposed by amendment 185—a patchwork of housing schemes, some with amenity burdens and some without—is in any way preferable.
I conclude by pointing out that amendment 185 would have a particularly unfortunate effect on tenements and sheltered housing complexes. From its inception, the bill has provided that, in those cases, the rights of a feudal superior should pass to the neighbours. If section 48A were deleted, the owners of many flats in tenements and of some units in sheltered housing would find that there was no one to enforce the amenity burdens from which their properties benefited. I am fairly confident that that is not the intention of amendment 185. I hope that, in speaking to the amendment, Lord James will reflect on what I have said and be prepared not to move it.
I move amendment 39.
Presiding Officer, I had prepared a substantial speech. However, in view of the minister's having replied before I gave the speech, it is unnecessary for me to go into detail. This is an area in which even the specialist practitioners are not certain as to the interpretation. On the basis of the decision in the case of Pepper v Hart—that authoritative statements made by a minister can be relied on in court and by practitioners in practice—will the minister please confirm that everything that he has just said can be relied on as being entirely authoritative and that practitioners will be absolutely safe if they stick to the guidance and the interpretation that he has just given?
That is a challenge. I confirm that what has been said has been said in good faith and to the best of my ability on the advice received. It is my interpretation of what is proposed not only by the bill as it stands, but by the amendments to which I have spoken. I repeat one statement that I made in the context of amendment 190, which was that a burden will be treated as having been imposed and a property will be treated as being subject to a common scheme if that would have been the case had a benefited property been expressly nominated. For the benefit of the Parliament, I advise members that my briefing note says, in block capitals and in parenthesis:
"NB WE WOULD LIKE THE NEXT SENTENCE TO BE INCLUDED AS A PEPPER V HART STATEMENT".
On that note, I hope that Lord James Douglas-Hamilton will be reassured.
Amendment 39 agreed to.
Section 48A—Common schemes: related properties
Amendments 40 and 41 moved—[Mr Jim Wallace]—and agreed to.
Amendment 185 not moved.
Section 50—Sheltered housing
Amendments 42 to 47 moved—[Mr Jim Wallace]—and agreed to.
Amendment 186 is grouped with amendments 48, 187, 188, 49 and 189. If amendment 186 is agreed to, I cannot call amendments 48 and 187 because of pre-emption; however, amendment 48 does not pre-empt amendment 187. If amendment 188 is agreed to, I cannot call amendments 49 and 189 for reasons of pre-emption; however, amendment 49 does not pre-empt amendment 189.
I will speak to and move amendment 186 and will also speak to amendment 188, which is in my name.
Under the bill as drafted, there seems to me to be an element of double standards because the rules for the owners of sheltered housing units are different from the rules for the owners of other units in a community. If the latter want to appoint a manager or seek a variation or discharge of community burdens, a simple majority in favour will be required. However, the owners of sheltered housing units will require a two-thirds majority. I would be grateful if the minister would explain those double standards.
I would also be grateful if the minister would explain exactly how a simple majority or a two-thirds majority are to be measured. Would that be done through a secret ballot? Alternatively, would it require the written consent in the case of a simple majority of more than half the owners or, in the case of a two-thirds majority, of at least two thirds of the owners? Could it be calculated by simply counting heads at a public meeting that was specifically called to decide the matter? If a majority is to be measured by a ballot, would a two-thirds majority be calculated as two thirds of the valid ballot papers that were returned, or would it be calculated as two thirds of ballot papers issued, which would mean that the measurement would be of two thirds of those who were eligible to vote?
All that reminds me of Roseanna Cunningham's dreadful namesake—but not relation—George Cunningham, the former MP, who successfully rigged the 1979 referendum under the Scotland Act 1978 by stipulating that at least 40 per cent of those who were eligible to vote would have to vote for the proposed Scottish assembly before it could be set up. In the event, a majority of those who voted in the referendum supported the proposal, but the 40 per cent hurdle was not overcome. The consequence was that the people of Scotland were robbed and had to wait 20 years for a Scottish Parliament to end the democratic deficit that we had to suffer.
I want sheltered housing residents to have the maximum say in the running of their own affairs, including the appointment and, if necessary, dismissal of a manager. In some cases, a two-thirds threshold might be difficult to achieve if a high proportion of sheltered housing residents were unable to vote because of illness or other circumstances. I understand that the bill as drafted required a three-quarters majority and that the Executive was persuaded to lower the threshold to two thirds. I welcome that step, but I ask the Executive to consider my amendments 186 and 188, which would require a simple majority rather than a two-thirds majority.
I move amendment 186.
I have some sympathy with Dennis Canavan's amendments 186 and 188. The minister will be aware that the committee considered the issue carefully at stages 1 and 2 and acknowledged that the threshold of 75 per cent, which the bill as drafted set, was too high. However, I acknowledge that core burdens play a fundamental part in the service that is provided within sheltered and retirement accommodation.
The committee received evidence from SHOC, which detailed a case in which a complex had been able to achieve, with considerable effort, a majority of 74 per cent in favour of change. That example illustrated clearly that the threshold of 75 per cent was too high. If my recollection is correct, at stage 2, Kenneth Macintosh lodged an amendment that sought to reduce the threshold to 60 per cent, whereas I lodged an amendment to reduce the threshold for changing core burdens to a two-thirds majority. The Lord Advocate, who represented the Executive that day, accepted my amendment. I believe that the two-thirds majority strikes the right balance, given that core burdens affect fundamental services within an establishment. Those burdens are different from other burdens that have been referred to. The two-thirds majority is in line with what the committee broadly recommended at stage 1 and I hope members continue to support that position.
I will speak to amendments 187 and 189.
The background to the amendments and to discussion of the issue at stage 2 is the inappropriate behaviour of certain property developers who exercise control over retirement complexes against the wishes of the residents. The bill introduces several safeguards to try to prevent that from happening in future, but there remain concerns, particularly over voting rights. In many cases, developers retain flats within a complex specifically to benefit from the votes conferred by those units.
At stage 2, the committee voted unanimously to support one amendment—there was one abstention in the vote on another amendment—on preventing the developer from exercising votes against the wishes of retirement home owners. It is fair to say that members of the committee endorsed the principle that retirement complexes should be run in the homeowners' interests, not as income-generators for property companies. Of course, what happens in practice is not that the developers own half of a complex—they need only to control half a dozen or so votes effectively to dominate the complex.
Older people living in retirement flats are looking for security. They do not want to battle with the management company or to make a fuss—they want to agree, not to challenge. In the words of one resident, "Some will sook up to the warden and keep in their good books"—in other words, they will not complain because they do not want to think that when they pull the alarm cord, the warden might be a little slow in responding.
I do not wish to imply that most management companies or wardens do not do an excellent job or that they do not go out of their way to look after residents, because they do. However, we should not delude ourselves that the more unscrupulous will not, and do not, take advantage of this vulnerable group. Recently, I have discovered that certain companies are going round my constituency, buying up flats in retirement complexes and subletting them. Their motives for doing so are unclear, but I believe that residents have every right to be suspicious. Not only does that practice turn the complex into a source of income for the very people who will be running it, but we know from past and present experience that it will be used as a back-door method of retaining control and preventing home owners from making decisions in their own interests.
I certainly do not wish any discriminatory provisions to scupper the benefits that would flow from the bill. However, I want to hear how the Executive intends to tackle the real anxieties and concerns of retirement home owners throughout Scotland and to empower them further to take full control of their own affairs.
Section 50 was the one section on which there was a lot of argument. That argument was not along party lines but was about how we addressed the specific issue of introducing real democracy into sheltered housing. Dennis Canavan has a strong argument for pure democracy, with his proposal of a majority based on 51 per cent of those voting. On the whole, the committee felt that, as Michael Matheson argued, because the provision refers to the core burdens, the threshold should be slightly above half of those voting if such vital changes in the essential running of the complex are being made. Democracy involves a bit of protecting minorities as well as giving free range to the voice of the majority. Like other members of the committee, I settled—arbitrarily, I suppose—on two thirds as a reasonable majority.
I have considerable sympathy with Kenneth Macintosh's arguments. Some awful tales were given to the committee—I had previously heard tales from pressure groups as, I am sure, other members have done—of the bad behaviour of some management companies and managers. There is a serious concern about preventing the owner of a whole block from dominating the proceedings by subletting and using those tenants' votes. I would be interested in the minister's response as to why he does not accept that point. It is perhaps one of the few points on which there is still a need to put pressure on the Executive to make a concession.
I have considerable sympathy with the position that Dennis Canavan has spoken of today. Having attended a number of meetings at which people who live in sheltered and retirement housing complexes were also present, I can say that that position has been expressed forcefully by those people.
The Cunningham amendment to the Scotland Act 1978 ensured that everyone who was eligible to vote was counted as part of the result. Achieving 51 per cent under such a system is quite difficult, as those who do not bother to take part will be counted as voting against the proposal. I cannot picture a situation in which hordes of militant retired people would try to overturn the core burdens brought in to protect their rights.
I fully support Kenneth Macintosh's amendments 187 and 189. I, too, expressed concerns during stage 2 about managers or other interested parties buying up a small number of units in a complex to maintain control over the complex from a minority position. I am grateful for the fact that the minister recognised those concerns and reduced the threshold from 75 per cent to 66 per cent. However, as Donald Gorrie said, although the offer of a 66 per cent threshold was gratefully accepted, it does not go far enough. The 66 per cent threshold is too high, especially given that everyone who is eligible to vote will be counted in the final result.
The policy that underlies the criteria behind the voting percentage that we are discussing is, as Donald Gorrie, Kenneth Macintosh and Michael Matheson have indicated, to do with the fact that there are certain elements to sheltered housing that are so fundamental to the operation of that kind of housing that they should not be removed or changed merely by a simple majority. That proposition was put forward and strongly supported during the consultation stage.
The Justice 1 Committee also considered the matter and concluded that a 50 per cent majority was not enough but that a 75 per cent majority was too high. Indeed, paragraph 29 of the stage 1 report says:
"The Committee believes that certain burdens regulating a sheltered housing development are so fundamental that they require a higher level of protection than simple majority voting to ensure the development does not wholly lose its character as a sheltered housing development. However, it is not clear to us that a 75% majority is the appropriate majority."
The Executive gave an assurance that we were prepared to revise the 75 per cent majority downwards. I believe that, to that end, an amendment in the name of Michael Matheson was accepted at stage 2 by the Lord Advocate on behalf of the Executive.
As has been indicated, the bill as drafted stipulated a three-quarters majority. As a result of the consultation process, I believe that the two-thirds majority is appropriate. Amendment 186 aims to reduce that to a simple majority and amendment 188 would allow a simple majority of owners to vary or completely remove some of the most important aspects of sheltered housing. Many people buy into sheltered housing for some specific services that give that accommodation its character, such as alarms, intercoms, medical rooms and wardens' flats. I do not see why it would be in the interests of owners to alter those rights except in exceptional circumstances. If a change were felt necessary, it would seem to be a sensible precaution to provide for a special majority to ensure that there was a sufficient body of owners in favour of that change. That is why—to answer Dennis Canavan's direct question—there is a difference between the provisions for sheltered housing and those for other housing developments.
Our proposal is not a matter of treating the owners of sheltered housing in a patronising way; rather, it is a way of ensuring that people who have bought into a complex specifically because of the special facilities that it offers do not see those features removed except in circumstances in which there is substantial support for change.
As the Justice 1 Committee considered those provisions fully and supported the amendments that introduced them, I hope that Dennis Canavan will accept that the matters have been gone into in detail, that an effort has been made to strike the right balance and that that balance is at two thirds. The special majority provisions apply to core burdens. There are no such provisions for the appointment of managers.
With regard to how the votes are to be counted, section 50(5) sets out that the majority shall
"be construed as a reference to the owners of at least two thirds of the units in the development".
The majority is two thirds of the units, not of those who vote.
On procedures, the bill is not prescriptive. It would be for those in the development to come to their own arrangements as to what kind of procedures they wish to pursue.
Amendments 48 and 49 seek to reverse Kenneth Macintosh's amendments 23 and 24, which were agreed to at stage 2. As we have heard, those amendments essentially remove the rights attached to units that a developer owns in respect of decisions about conferred powers of a manager or about the variation or discharge of a core burden in sheltered housing. I recognise the intention that lay behind the provisions of stage 2 amendments 23 and 24, but after considerable consideration, I believe that they cannot remain in the bill.
The provisions do not comply with the principle of majority rule. Within a majority decision-making process, the legitimacy of a decision derives from the fact that everyone has a say and that the will of the owners of a majority of properties within a community prevails in deciding what is best for that community. It does not seem fair to exclude some owners or to allow for the possibility of a minority deciding what is best for the community as a whole.
However, the main reason for seeking the removal of the provisions is the Executive's view that they are incompatible with the European convention on human rights. To deny a developer who owns units in a complex rights while other owners retain theirs is to interfere unfairly with the developer's property rights and to discriminate. The bill cannot be left as it stands because of that failure to comply with the ECHR.
I listened to what Kenneth Macintosh said and I understand that he has addressed the ECHR problem by lodging amendments 187 and 189, which also attempt to remove the relevant provisions. However, having considered his replacement proposals, I regret that they, too, are highly likely to be incompatible with the convention.
I readily acknowledge that Kenneth Macintosh is trying to devise the best scheme for residents in sheltered housing accommodation, but I am unable to support his alternative proposal. It seeks to deny a particular group of people their property rights without sufficient reason. The mere fact of an owner having rented a property out does not remove their interests. The provisions of amendments 187 and 189 seem to be designed to catch not only developer landlords but others who buy into retirement accommodation that, for example, they may let out to their parents. Such owners would be treated less favourably than owner-occupiers for very little reason.
I never like to rest cases on the drafting of amendments, but there are other drafting problems with amendments 187 and 189 because of the use of the term "sublet". Its use means that the amendments do not catch all units that are let out to tenants, as only units that are sublet would be affected. By definition, a property cannot be sublet until it is first let, but the developer who retained units or bought them back to let would not be subletting them; he would be letting them and therefore entitled to a vote. It would seem odd to treat someone who was letting property differently from someone who was subletting it.
That does not mean that I do not sympathise with the concerns expressed by Kenneth Macintosh that a developer who has retained a large number of units might seek to abuse that position. I stress, however, that the bill provides extensive safeguards for the minority in any majority decision making. Indeed, at the committee's request, amendment 86 inserts a new section on the requirement for prior consultation.
As I have indicated, the bill will represent a major change for owners of sheltered accommodation, who will have much more say in their own affairs. We have tried to listen to the points that have been made to us and have further strengthened the position of those who live in sheltered homes at each stage of the bill's progress.
However, in acknowledging the particular concerns that have been raised in the debate and which underlie Kenneth Macintosh's amendments, we believe that it is right and proper for the Scottish Executive to examine the issues further on the basis of the evidence and for that examination to inform the development of policy. On that basis, I inform members that the Executive will commission a study into the issues that Ken Macintosh has raised. We will be happy to consult him on the terms of reference for that study, and my officials and I will be happy to meet him to begin that process as soon as possible. Therefore, I hope that he will be prepared not to move amendments 187 and 189
I listened carefully to what the minister and other members said, particularly Michael Matheson and Donald Gorrie. Having heard the arguments, I accept that there is a case for a two-thirds majority in the matter of a variation or discharge of core burdens.
However, I do not accept that the same argument applies in the case of the appointment of a manager. The minister has said that a two-thirds majority is not required for the appointment of a manager. He may correct me if I am wrong, but my reading of the bill is that it is. Section 50(5) begins:
"In relation to a sheltered housing development … section 27 of this Act applies with the following modifications".
It then specifies
"a majority … of at least two thirds".
Section 27 is headed "Power of majority to appoint manager etc." Unless the minister can tell me that my interpretation of the bill is wrong, I am inclined to push amendment 186 to a vote. As I said, I accept that there is a case for a two-thirds majority in the event of a variation or discharge of core burdens.
Perhaps I can be of help. Only paragraphs (b) and (c) of section 27(1) apply under section 50(5). The appointment and dismissal provisions, which are specified under paragraphs (a) and (d), do not apply in this instance, which is why a simple majority will decide on the appointment or sacking of a manager.
I invite the minister to intervene to confirm that that is the correct interpretation.
I am grateful to Ken Macintosh—what he says is the case. I refer Dennis Canavan to section 50(5), which he is trying to amend through amendment 186. The subsection says:
"section 27 of this Act applies with the following modifications … in subsection (1), the reference to the owners of a majority of the units in a community shall, for the purposes of paragraphs (b) and (c) of that subsection,"
require a two-thirds majority.
Section 27 makes an exception. Under paragraphs (b) and (c) of section 27(1),
"Subject to section 50(5)(a) … the owners of a majority of the units in a community may … confer on any such manager the right to exercise such of their powers as they may specify"
and
"revoke, or vary, the right to exercise such of the powers conferred under paragraph (b) above as they may specify".
Paragraph (a), which covers the power of appointment of a manager, and paragraph (d), which covers the dismissal of a manager, are not covered by the special majority arrangements. Rather, they are covered by a simple majority.
With the Presiding Officer's indulgence, I will, while I am on my feet, confirm what I said earlier that I would confirm. My memory was indeed correct: the manager burden will cease to be exercisable either once the developer in whose favour it is constituted does not own a unit in the development or after three years. Therefore, a manager burden created before November 2001 will be extinguished on the appointed day.
I am grateful to the minister for that explanation. I now see that there is a distinction between the appointment of the manager, and the conferring on that manager of the right to exercise certain powers and the revocation of those powers. However, the minister has still not given an explanation as to why a two-thirds majority is required in order to confer the powers on the manager or to revoke the exercise of such powers on the part of the manager.
Section 50 in effect amends the operation of section 27 in the way that Dennis Canavan describes, with the result that powers can be conferred on a manager only under the terms of section 27(1)(b), or revoked or varied under the terms of paragraph (c) with a majority of at least two thirds. It is not possible, even under section 27(1), for such a two-thirds majority to confer a power on a manager to sign a deed under section 32 that could vary or discharge core burdens. Any such power could only be to sign a deed to vary non-core burdens. That takes us back to the important point about ensuring that what people have bought into—including the special nature of the accommodation and all that goes with that—is not diluted by a simple majority decision. Rather, given the nature of the accommodation, the higher threshold has to be passed before there can be a change. The arrangement has been arrived at to protect those people's interests.
We could have a situation where the owners of the units in a sheltered housing complex were dissatisfied with the way in which the manager was exercising certain powers that they had given them and, as a result, wanted to revoke the powers. If as many as 65 per cent of the owners want a revocation of the powers from the management and 35 per cent want the management to retain the powers, why on earth should the 35 per cent be dictating to the 65 per cent? I think that I should push amendment 186 to a vote, but I am prepared not to move amendment 188, because I accept that there is a case for a two-thirds majority regarding variation or discharge of core burdens.
The question is, that amendment 186 be agreed to. Are we agreed?
No.
There will be a division. Given that this is the first division of the afternoon, I shall allow two minutes for the vote.
For
Adam, Brian (North-East Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lamont, Johann (Glasgow Pollok) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McGugan, Irene (North-East Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 2, Against 96, Abstentions 0.
Amendment 186 disagreed to.
Amendment 48 moved—[Mr Jim Wallace]—and agreed to.
Amendment 187 is in the name of Kenneth Macintosh. Are you moving the amendment, Mr Macintosh?
I will not move amendment 187. I welcome the assurances that the minister has given me on this point. The amendment concerns the fact that property developers can use property rights to assert their controls, but asserting the interests of residents runs into discriminatory problems. I welcome the assurance that there will be an on-going study.
Amendments 187 and 188 not moved.
Amendment 49 moved—[Mr Jim Wallace]—and agreed to.
Amendment 189 not moved.
Amendments 50 and 51 moved—[Mr Jim Wallace]—and agreed to.
After section 50
Amendment 86 moved—[Mr Jim Wallace]—and agreed to.
Section 51—Facility burdens and service burdens
Amendments 52 and 53 moved—[Mr Jim Wallace]—and agreed to.
Section 52—Further provision as respects implied rights of enforcement
Amendment 190 moved—[Mr Jim Wallace.]
Amendment 190A not moved.
Amendment 190 agreed to.
Amendment 55 moved—[Mr Jim Wallace.]
Amendment 55A not moved.
Amendment 55 agreed to.
Amendments 56 and 57 moved—[Mr Jim Wallace]—and agreed to.
Section 58—Manager burdens
Amendments 58 to 60 moved—[Mr Jim Wallace]—and agreed to.
Section 59—Overriding power to dismiss and appoint manager
Group 18 concerns the power to dismiss the manager. Amendment 191 is in a group on its own.
I will be brief, because the principles of amendment 191 are very similar to those of amendment 186. If the residents of a sheltered housing complex are not satisfied with the standard of service that a manager provides, they should have the power to sack that manager and to appoint someone else. Under the bill, as many as 65 per cent of the residents might want to change the manager, but they would be powerless to do so because the other 35 per cent wanted no change. The 35 per cent minority might be pals of the manager or might have been intimidated by them, but why should 35 per cent of residents be able to dictate to 65 per cent?
I move amendment 191.
I will try to be equally brief. Where the title deeds make no provision for the dismissal of a manager, a simple majority of 51 per cent may dismiss them under section 27(1)(d). However, where the title deeds specifically make provision for the dismissal of a manager, the Executive does not in general propose to disturb an arrangement into which parties have entered freely. However, the Executive accepts that it would be unreasonable for developers to include in title deeds a provision that required a very large majority—for example, of 80 per cent—to seek a manager's dismissal. In that case, the manager could not be dismissed if 79 per cent of residents were opposed to and only 21 per cent were supportive of him. If such a large majority were required, it might be impossible to dismiss a manager.
For that reason, the bill contains a provision that—quite exceptionally—will override the provisions in the title deeds. Section 59 provides that, irrespective of what the title deeds say, a two-thirds majority of residents will be able to dismiss their manager. A two-thirds majority is given as the highest acceptable limit for the dismissal of a manager; it is not the routine requirement. If there is no such provision in the title deeds, the simple 51 per cent majority will apply.
I am not at all impressed by the minister's argument. Sometimes people have no choice about title deeds: things are done on a take-it-or-leave-it basis. The Parliament ought to ensure higher standards of justice than those that are in the title deeds. The minister has already accepted that principle by including section 59 in the bill.
As we have accepted the principle of having higher standards than those that are in the title deeds, I hope that we will accept the provision for a simple majority. Otherwise, the will of the minority may prevail over that of a substantial majority of residents. For example, an incompetent, crooked management could continue to hold sway simply with the votes of a 35 per cent or so minority.
Section 59 does not provide that there must always be a two-thirds majority, even when there are title deeds. It overrides the title deeds to impose an upper limit of two thirds. Therefore it limits what the developers can put into the title deeds. The limit can be lower if they choose, but it cannot go beyond two thirds.
I still think that there is a case for having a simple rather than a two-thirds majority. Will the minister explain what happens in the case of existing title deeds? Will the provision be retrospective? Will existing title deeds be overridden? The minister is nodding his head.
The intention is to put a ceiling on the majority that is required. I am fairly confident that the provision applies retrospectively.
I am grateful to the minister for that explanation. However, I still think that if a simple majority of the owners of units in a sheltered housing complex are very dissatisfied with the management, they ought to be able to do something about it. We should remember that we are talking about reasonable people who will not just hire and fire managers at will. The proposed dismissal stage is a last resort, which will apply only if a manager has proven to be so incompetent that the majority of the people who live in that sheltered housing complex want a change of management. They ought to have maximum opportunity to bring about such a change. Therefore, I intend to press amendment 191.
The question is, that amendment 191 be agreed to. Are we agreed?
No.
There will be a division.
For
Canavan, Dennis (Falkirk West)
Against
Aitken, Bill (Glasgow) (Con)
Alexander, Ms Wendy (Paisley North) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brankin, Rhona (Midlothian) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Campbell, Colin (West of Scotland) (SNP)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Fabiani, Linda (Central Scotland) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Hyslop, Fiona (Lothians) (SNP)
Ingram, Mr Adam (South of Scotland) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lamont, Johann (Glasgow Pollok) (Lab)
Lyon, George (Argyll and Bute) (LD)
MacAskill, Mr Kenny (Lothians) (SNP)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
Maclean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McGugan, Irene (North-East Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Neil, Alex (Central Scotland) (SNP)
Oldfather, Irene (Cunninghame South) (Lab)
Paterson, Mr Gil (Central Scotland) (SNP)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Reid, Mr George (Mid Scotland and Fife) (SNP)
Robison, Shona (North-East Scotland) (SNP)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Smith, Mrs Margaret (Edinburgh West) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Stone, Mr Jamie (Caithness, Sutherland and Easter Ross) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Wilson, Andrew (Central Scotland) (SNP)
The result of the division is: For 1, Against 93, Abstentions 0.
Amendment 191 disagreed to.
Section 61—The expression "related properties"
Amendments 61 and 62 moved—[Mr Jim Wallace]—and agreed to.
Section 64—Further provision as respects deeds of variation and of discharge
Amendment 63 moved—[Mr Jim Wallace]—and agreed to.
Section 65A—Development management scheme
Amendments 87 to 90 moved—[Mr Jim Wallace]—and agreed to.
Section 65B—Application of other provisions of this Act to rules of scheme
Amendments 91 to 93 moved—[Mr Jim Wallace]—and agreed to.
Section 65C—Disapplication
Amendment 192 moved—[Mr Jim Wallace]—and agreed to.
Section 69—Discharge of positive servitude
Group 19 is on servitudes. Amendment 193 is grouped with amendments 194, 195, 196, 113, 65 and 66.
Amendments 193 to 196 seek to make it clear that the provisions of sections 69 and 71(3) will apply to servitudes that have been registered in the property registers, that have been noted as overriding interests or that otherwise appear on the title sheet of property that has been registered in the Land Register of Scotland.
Amendments 113, 65 and 66 will require the Keeper of the Registers of Scotland to identify the benefited and burdened property where negative servitudes become real burdens through the operation of section 71.
I move amendment 193.
Amendment 193 agreed to.
Amendments 194 and 195 moved—[Mr Jim Wallace]—and agreed to.
Section 71—Negative servitudes to become real burdens
Amendment 196 moved—[Mr Jim Wallace]—and agreed to.
Section 73—Application and interpretation of sections 74 and 75
Amendment 94 moved—[Mr Jim Wallace]—and agreed to.
Section 74—Extinction following pre-sale undertaking
Amendments 197 and 95 moved—[Mr Jim Wallace]—and agreed to.
Section 75—Extinction following offer to sell
Amendments 198 and 97 moved—[Mr Jim Wallace]—and agreed to.
Section 77—Reversions under School Sites Act 1841
Amendment 98 is grouped with amendments 199, 200, 99 and 201.
Amendment 98 and the other amendments in the group have not been lodged specifically for the benefit of the convener of the Justice 1 Committee. I know that Christine Grahame—if I can catch her attention—would feel that this stage of the bill would not be complete without a consideration of the School Sites Act 1841.
I am all ears.
I am delighted that she will not be disappointed.
The amendments are purely technical amendments to tidy up the bill. Amendment 201 will make a minor but important change to ensure that, when a reversion holder has already accepted compensation, he cannot expect to get a second bite of the cherry by claiming compensation from the education authority. The other amendments are consequential.
I move amendment 98.
Amendment 98 agreed to.
Amendments 199, 200, 99 and 201 moved—[Mr Jim Wallace]—and agreed to.
Section 78—Right to petition under section 7 of Entail Sites Act 1840
Amendment 100 is grouped with amendments 101 to 103.
This group of technical amendments will help to tidy up the bill.
Amendment 103 delivers the main purpose, which is to bring the Entail Sites Act 1840 into line with the revisions of the School Sites Act 1841 that were made at stage 2. The amendment provides that, if land has been sold to a third party and the reversion holder seeks to recover that land, the reversion holder should be paid compensation instead. The other amendments are consequential.
I move amendment 100.
Amendment 100 agreed to.
Amendments 101 to 103 moved—[Mr Jim Wallace]—and agreed to.
Section 81—Powers of Lands Tribunal as respects title conditions
Amendment 104 moved—[Mr Jim Wallace]—and agreed to.
Section 82—Special provision as to variation or discharge of community burdens
Amendment 202 moved—[Mr Jim Wallace]—and agreed to.
Section 85—Content of notice
Amendment 203 moved—[Mr Jim Wallace]—and agreed to.
Section 87—Representations
Amendment 105 is grouped with amendments 106, 111, 112, 205, 206 and 207.
Amendments 105 to 108 inclusive are technical drafting amendments to clarify the operation of sections 87 and 88.
Amendment 111 will adjust the existing powers of the Scottish ministers so that, under the bill, they will be able to make rules to regulate applications to the Lands Tribunal for Scotland. In particular, the amendment will allow ministers to make rules relating to evidence.
Amendment 112 will bring the bill's provisions on the referrals of disputes that arise from notices registered under the bill into line with the equivalent provision in the Abolition of Feudal Tenure etc (Scotland) Act 2000.
Amendment 205 will make it clear that the discretion of the Lands Tribunal to award expenses under section 92 is subject to the provision in section 89A(3) that an owners' association may be ordered to pay the expenses, or a proportion thereof, of an applicant who has applied to preserve a development management scheme.
Amendment 206 takes into account the possibility that an application to the Lands Tribunal to renew or vary a title condition or to preserve a community burden may be refused. In those circumstances, the tribunal would issue an appropriate order. Amendment 206 makes it clear that that may itself be registered.
Amendment 207 will replace the word "extinguished" with "discharged", which—as members well know—is more appropriate in the context of applications to the Lands Tribunal.
Amendment 208 provides that in section 93 an order of the Lands Tribunal preserving a development management scheme may be registered in the property registers in the same way that an order to preserve a community burden may be registered under section 93(2).
I move amendment 105.
Amendment 105 agreed to.
Amendment 106 moved—[Mr Jim Wallace]—and agreed to.
Section 88—Granting unopposed application for discharge or renewal of real burden
Amendments 107 to 110 moved—[Mr Jim Wallace]—and agreed to.
Section 89A—Granting applications as respects development management schemes
Amendment 204 moved—[Mr Jim Wallace]—and agreed to.
After section 90
Amendment 111 moved—[Mr Jim Wallace]—and agreed to.
Section 91—Referral to Lands Tribunal of notice dispute
Amendment 112 moved—[Mr Jim Wallace]—and agreed to.]
Section 92—Expenses
Amendment 205 moved—[Mr Jim Wallace]—and agreed to.
Section 93—Taking effect of orders of Lands Tribunal etc
Amendments 206 to 208 moved—[Mr Jim Wallace]—and agreed to.
Section 94—Alterations to Land Register consequential upon registering certain deeds
Amendment 113 moved—[Mr Jim Wallace]—and agreed to.
Section 95—Extinction of real burdens and servitudes etc on compulsory acquisition of land
Amendments 209 and 114 moved—[Mr Jim Wallace]—and agreed to.
Section 96—Extinction of real burdens and servitudes etc where land acquired by agreement
Amendments 115 to 119 moved—[Mr Jim Wallace]—and agreed to.
Amendment 120 is grouped with amendments 210, 218 and 219.
Amendment 120 seeks to remove "general vesting declaration" from the definition of conveyance in section 96. A general vesting declaration is used only where land has been acquired by means of a compulsory purchase order. Section 96 relates to the extinction of burdens where land is acquired by agreement.
Schedule 11 is introduced by section 96(11) and relates to land that is acquired by agreement in circumstances where it could have been acquired compulsorily. A conveyance in such circumstances will extinguish a title condition only if it is registered together with a relevant certificate from the Lands Tribunal. A certificate might, for example, certify that there is no outstanding application to renew the title condition.
The effect of amendments 218 and 219 would be to make clear that the form of application for the relevant certificate must specify the date by which the owner of the benefited property or the holder of the personal burden must have applied to the Lands Tribunal for renewal of the burden.
Amendment 210 seeks simply to bring the wording of section 96(10) into line with the equivalent provisions of section 22, and to make it clear that the certificate issued by the Lands Tribunal will cover all applications received for the renewal of the burden.
I move amendment 120.
Amendment 120 agreed to.
Amendment 210 moved—[Mr Jim Wallace]—and agreed to.
Section 96A—Amendment of Church of Scotland (Property and Endowments) (Amendment) Act 1933
Amendment 121 is grouped with amendment 172.
As my colleague Mr Finnie said, 121 is an appropriate number for an amendment that deals with the Church of Scotland.
The subject matter of amendment 121 underwent some discussion at stage 2, particularly in amendments lodged by Maureen Macmillan and Donald Gorrie. It was agreed that officials would meet Church of Scotland representatives to discuss the application of section 9 of the Church of Scotland (Property and Endowments) (Amendment) Act 1993. Amendment 121 is a product of those discussions.
The Church of Scotland was concerned about possible situations where more than one person was eligible for the right of pre-emption when a church or manse was sold. It was also concerned about how the price of a property was to be fixed.
Amendment 121 seeks to allow the Scottish ministers to provide by order a mechanism for fixing the price of the property. They would also be able to provide a mechanism for choosing the person who is given the opportunity to buy back the church or manse where more than one person is entitled to enforce the right.
Amendment 172 is consequential. The amendments address the problems that Maureen Macmillan, Donald Gorrie and the Church of Scotland raised. The church has told us that it is satisfied with what is proposed and we will be discussing with it the terms of the statutory instruments that are to follow.
Is the minister absolutely certain that all the Church of Scotland's concerns have been addressed and that all relevant matters can be dealt with by statutory instrument?
I thank the Executive for responding to the concerns of the Church of Scotland General Trustees over the problems they experienced when trying to sell redundant parliamentary churches that were built about 200 years ago with public money. The title deeds for those churches were granted by the heritors who gave land at the time. Those deeds gave adjoining landowners the right of pre-emption over the church when it fell out of use.
The negotiated price was usually in the landowner's favour and discussions about when the deal would be concluded were open ended. That meant that there were times—as still happens today—when churches remained in a state of disrepair for many months while negotiations took place.
The conditions were therefore out of date for a long time. As the Deputy First Minister said, there could now be more than one adjoining proprietor and fairness would dictate that the price paid should reflect the market value. The church should be able to indicate a closing date for offers rather than have negotiations drag on for as long as two years, as they did in a recent case.
A letter that I received today from the Church of Scotland General Trustees said that they appreciated that the Executive had dealt with the matter to their satisfaction and I add my thanks to theirs.
One of the great attractions of politics is that one is always learning new things. As a result of the Church of Scotland approaching Maureen Macmillan and me on this issue, I discovered all about parliamentary churches, which I knew nothing about before. I will not bore members with that now. There is an issue, and the minister has addressed it reasonably. The issues are complex, and they cannot all be adjusted on the face of the bill, but what is in the bill, plus some regulations by statutory instrument, will address the small but important point for a few churches in the Highlands.
I welcome the fact that members recognise that we have been able to address the concerns that were expressed at stage 2. Lord James Douglas-Hamilton asked whether the Church of Scotland is wholly satisfied. The church had sought a statutory direction to identify one property as that which benefited from the reversion. It has not been possible to allow that, because it would remove without compensation the property rights of other proprietors. However, as we heard from the letter to which Maureen Macmillan referred, we have been able to provide a mechanism to facilitate the identification of one property and to fix a price for the land. In the procedure, it is likely that each possible pre-emption holder will be allowed to make a bid, with the right going to the highest bidder. The Church of Scotland has indicated that it is content with that proposal. As I have indicated, we will discuss with the church the terms of the statutory instrument to follow.
Amendment 121 agreed to.
Section 97—Amendment of Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947
Amendments 122, 211, 212 and 123 moved—[Mr Jim Wallace]—and agreed to.
Section 98—Amendment of Forestry Act 1967
Amendments 124 and 125 moved—[Mr Jim Wallace]—and agreed to.
Section 100—Amendment of Land Registration (Scotland) Act 1979
Amendments 64 to 66 moved—[Mr Jim Wallace]—and agreed to.
Section 102—Amendment of Abolition of Feudal Tenure etc (Scotland) Act 2000
Amendments 213, 67 and 214 moved—[Mr Jim Wallace]—and agreed to.
Amendment 68 is grouped with amendments 163 and 166.
Amendment 68 is a technical, consequential change, which seeks to remove a reference that is unnecessary, because the provision is being repealed. Amendments 163 and 166 will ensure that sporting rights are, unless saved under section 65A, extinguished by section 54 of the Abolition of Feudal Tenure etc (Scotland) Act 2000, and cannot be saved under part 4 of that act.
I move amendment 68.
Amendment 68 agreed to.
Section 107—Savings and transitional provisions etc
Amendments 69 and 70 moved—[Mr Jim Wallace]—and agreed to.
Section 110—Interpretation
Amendments 71, 126, 72, 127 and 73 to 79 moved—[Mr Jim Wallace]—and agreed to.
Section 111—The expression "owner"
Amendment 80 moved—[Mr Jim Wallace]—and agreed to.
Section 116—Minor and consequential amendments, repeals and power to amend forms
Amendment 81 is grouped with amendments 82 to 84.
It will be widely recognised in the chamber that the bill contains a number of complicated and technical issues. I pay tribute not only to my officials, but to the work of the Scottish Law Commission, which has pored over the bill at every stage to try to ensure that all points are picked up and that there is consistency throughout, but inevitably there is a risk that some small drafting faults have been overlooked, which could have unintended consequences. A small deficiency in language may create major problems in interpreting legislation.
The bill will create a new system of land regulation in a post-feudal Scotland, and is likely to be used daily by conveyancers. It is important, therefore, that any problems that are identified should be resolved quickly. As a result, amendments 81, 82, 83 and 84 will allow the Scottish ministers to make consequential and corrective amendments by subordinate legislation to the bill once it becomes an act. That power, of course, is intended only for minor, technical amendments. The proposed changes build upon a provision that was made at stage 2 to allow ministers to make necessary changes to other legislation as a consequence of the bill. Such a power has been taken in other acts. Parliaments should be cautious about such a power, so any change under it would be subject to an affirmative resolution of the Parliament.
I move amendment 81.
The amendments are necessary. They provide a power for the Scottish ministers to make corrective amendments. Because of the enormous complexity of some of the issues that are involved, it is conceivable that matters might come to light that the bill does not properly cover. In such circumstances, it is justified that the minister proceeds as proposed.
Any parliamentarian must be cautious about giving powers to ministers to mess about with bills that they are passing, but, as the minister said, the bill is complex and enters new territory in trying to unscramble and reconfigure the feudal system in Scotland. It is possible that errors will need to be put right. Despite having a suspicious mind, I see no ways in which some evil future minister, unlike the excellent existing ministers, might misuse the power, to the detriment of the public as a whole or individuals. We should support the amendments, but that support should not create a precedent.
I welcome those comments. If Donald Gorrie—with his rightly suspicious mind—is reassured, I am reassured.
Amendment 81 agreed to.
Amendments 82 to 84, 128 to 147, 215 to 219, 148 to 158, 220 and 159 to 172 are to be moved formally. I remind members of the change that was announced at the beginning of this afternoon's proceedings to the line of the bill that amendment 171 will affect. Does any member object to a single question being put on those 54 amendments?
Members indicated disagreement.
No member was brave enough to object.
Amendments 82 and 83 moved—[Mr Jim Wallace]—and agreed to.
Section 117—Short title and commencement
Amendment 84 moved—[Mr Jim Wallace]—and agreed to.
Schedule 2
Form of notice of termination
Amendments 128 to 135 moved—[Mr Jim Wallace]—and agreed to.
Schedule 3
Form of affixed notice relating to termination
Amendments 136 and 137 moved—[Mr Jim Wallace]—and agreed to.
Schedule 4
Form of notice of proposal to register deed of variation or discharge
Amendments 138 to 142 moved—[Mr Jim Wallace]—and agreed to.
Schedule 5
Further form of notice of proposal to register deed of variation or discharge of community burden: sent version
Amendments 143 to 146 moved—[Mr Jim Wallace]—and agreed to.
After schedule 7
Amendment 147 moved—[Mr Jim Wallace]—and agreed to.
Schedule 9
Form of undertaking
Amendments 215 to 217 moved—[Mr Jim Wallace]—and agreed to.
Schedule 11
Form of application for relevant certificate
Amendments 218 and 219 moved—[Mr Jim Wallace]—and agreed to.
Schedule 12
Amendment of Abolition of Feudal Tenure etc (Scotland) Act 2000
Amendments 148 to 158, 220 and 159 to 171 moved—[Mr Jim Wallace]—and agreed to.
Schedule 14
Repeals
Amendment 172 moved—[Mr Jim Wallace]—and agreed to.
That ends consideration of amendments.