Title Conditions (Scotland) Bill
The next item of business is the debate on motion S1M-3777, in the name of Jim Wallace, that the Title Conditions (Scotland) Bill be passed.
As was said when we discussed the last group of amendments, the bill is highly technical. It deals with complicated terms in the title deeds of property and uses detailed legal language. Despite that, the bill will be an important piece of legislation that has a striking impact on the way in which property in Scotland is treated.
From 28 November 2004, Scotland will have a completely new system of land tenure. The feudal system will be abolished, and the bill makes a major contribution to that new system. It will be a modern system that will replace an outdated and discredited system. It is worth dwelling on that for a moment, because the bill is not glamorous; it has not hit the headlines. However, it is a classic piece of law reform. It has examined the common law with a cool eye. Where the law was sensible and useful, it has been reproduced in the codes that are set out in the bill's opening sections. Where the law was uncertain, it has been clarified. Where the law was poor, it is being replaced.
Often, the Parliament takes criticism, but it would have been difficult for any Administration to find the time to pass such a bill at Westminster. The bill will be a piece of sensible, measured legislation that will affect most of Scotland's citizens and have a wide-ranging effect on how people live for many years.
As is obvious, it has taken some time to craft the bill. The issues are complicated and the Executive is grateful for the comments and suggestions that it received. The bill was proposed by the Scottish Law Commission in 2000 and was amended before introduction in response to the Executive's consultation exercise in 2001.
The delay between stage 3 of the Abolition of Feudal Tenure etc (Scotland) Act 2000 and today is the result of the need to consider every aspect of the legislation in painstaking detail. I recall the suggestion that was made in the stage 1 debate that the two bills should have been combined. However, I think that that would have resulted in a monstrously enlarged and complex piece of legislation.
Taking each bill separately has allowed us to distinguish between the removal of feudal tenure and the creation of replacement rules. Once the appointed day is passed, the Abolition of Feudal Tenure etc (Scotland) Act 2000 will have served its purpose and the Title Conditions (Scotland) Bill will be the legislation that conveyancers use on a day-to-day basis.
The Executive endeavoured to respond to comments that were made by interested parties and to accommodate their concerns. We amended the bill at stage 2 to reflect several recommendations from the Justice 1 Committee. The recommendations were primarily concerned with time limits in general and, specifically, with the voting threshold for changing fundamental characteristics in sheltered housing. We included provisions to allow for the introduction of a development management scheme to act as a best-practice tool for developers in creating housing communities. We also provided for local authorities to protect land that they sell cheaply for economic development.
Further amendments have been agreed today. We have introduced a health care burden to assist national health service trusts when selling land. Following consultation with the Law Society of Scotland, we have simplified the process of obtaining acquiescence to a breach of a burden. We have introduced a new type of burden to assist the providers of affordable rural housing. A large number of technical amendments were also lodged, and I express my gratitude to members for their forbearance as we have gone through each of those amendments.
Quite properly, a number of amendments were lodged on the issue of sheltered housing. Although the bill is not the appropriate vehicle for a general reform of the law on sheltered housing, I am confident that the bill should facilitate greater accountability and empower owners of sheltered housing complexes to take their own management decisions if they so wish.
The continued and detailed additions to the bill as it has progressed reflect the tremendous effort that has gone into its passage. With that in mind, I pay tribute to the Justice 1 Committee. The committee may have been somewhat daunted at the size and technical nature of the bill, but it dealt tirelessly with a large number of technical amendments at stage 2 and, having taken evidence, produced an excellent report at stage 1, as a result of which we were able to make further amendments to the bill.
I also record our appreciation of and thanks to the Scottish Law Commission. The commission, some of whose representatives may be in the public gallery, conducted a comprehensive review of Scots property law over the past decade. The Scottish Law Commission's involvement continued beyond the submission of its reports. During the passage of this bill and the Abolition of Feudal Tenure etc (Scotland) Act 2000, the commission continued to provide detailed advice and support to my officials and me, which we valued greatly. The Scottish Law Commission's efforts have led directly to the abolition and replacement of the feudal system. The commission has also proposed reforms to the law of the tenement, upon which the Executive intends to consult as soon as possible.
I express my gratitude to all others who made suggestions. I very much believe that the wide array of changes that have been made as a result have resulted in an improved bill, which will fill the vacuum of feudal abolition, remove defects in the current law and provide a firm foundation for a modern system of property law in Scotland. I am grateful in particular not only, as I said, to members of the Justice 1 Committee and its officials and advisers, but to the officials in my department. From the volume and technicality of the amendments that we have seen today, it is obvious that officials made considerable and strenuous efforts to ensure that the bill is a piece of legislation on which we can lay solid foundations for a modern future system of property law in Scotland.
I move,
That the Parliament agrees that the Title Conditions (Scotland) Bill be passed.
I will be brief. The bill proved to be one of the most complex pieces of legislation that we have dealt with in my three and a half years on the Justice 1 Committee and its predecessor committee, the Justice and Home Affairs Committee. I am particularly grateful that my colleague Roseanna Cunningham gave me the opportunity to take responsibility for the bill on behalf of the Scottish National Party. I have thoroughly enjoyed monitoring its progress through the committee stages and in the chamber today.
I agree with the minister that the bill is a complex piece of legislation that will have a significant impact on property law in Scotland. To those who say that the bills that the Parliament passes do not affect them in their daily lives, I say that this is a bill that will affect the many people who purchase property throughout Scotland.
I, too, place on record my gratitude to the clerks to the committee, who, as ever, have been first class in preparing papers for members. I give particular recognition to Scott Wortley, who was special adviser on the bill to the committee. He has considerable expertise in the field and I am amazed that he can be so enthusiastic about such a complex subject. His support, assistance and guidance to committee members, where appropriate, were invaluable.
As the Deputy First Minister stated, along with the Abolition of Feudal Tenure etc (Scotland) Act 2000, the bill is one in a series of pieces of legislation to reform property law. A number of changes were made to the bill at stage 2, as well as this afternoon—I mention in particular changes to the provisions for sheltered and retired accommodation, which enhance the bill considerably.
The bill is a good illustration of the process. Organisations made representations to the Justice 1 Committee and to members directly, and the Executive was prepared to listen, acted accordingly and changed the bill, which was to organisations' benefit. I warmly welcome that action.
Members might be interested to note that, if we pass the bill this afternoon, we will repeal several enactments. One of those is the Registrations Act 1617. It will be repealed only in part, but the Redemptions Act 1661 will be repealed completely. Those must have been some pieces of legislation, because they have lasted so long, but one would expect that, coming as they did from a time when Scotland was formulating acts as an independent nation. I am sure that none of us will be around to find out whether the bill lasts as long as those two acts have.
I hope that members will support the Executive and pass the bill this afternoon.
I, too, thank the clerks to the Justice 1 Committee and Scott Wortley for the excellence of their work.
We welcome the bill for a number of reasons. We believe that it will achieve far greater clarity in the law. It will reduce the number of outdated conditions. At the same time, it will have the benefit of enabling solicitors acting for clients in land transactions to ascertain the law relating to real burdens from a single source.
For those who wish to alter the conditions relating to the ownership of their property—such as a burden that obliges the owner to maintain or contribute to the maintenance of a common facility, conveyancing will be much simpler.
The overall purpose has been to achieve clarity in the law and to restate the law in codified form. That has been welcomed in general by the Scottish Law Agents Society. It considers that redefining the perimeters of real burdens and servitudes is a welcome and sensible proposal.
Similarly, the Law Society of Scotland's working group has welcomed the bill, and considers that when it is enacted, there will be significant improvements to the law of real burdens in Scotland. It considers that clarification of the law of real burdens is helpful, since the area is currently, in many respects, uncertain and complex. The bill seeks to make substantial improvements.
Members have received a number of complaints about the management of owner-occupied sheltered housing developments, primarily relating to owners not being consulted on proposals for the maintenance of properties, service charges and the appointment of wardens. The general effect of the bill is to remove control from the developer and give it to the owners. That is a welcome change.
The only omission from the bill is the reform of the law on tenements, although I note the intention to consult on that. I hope that legislation will be introduced in the next session of Parliament.
I have one reservation about the bill. The subject is enormously complex and is reminiscent of dusty documents, wigs and gowns. In the process of modernisation, the Executive saw fit to lodge more than 100 amendments for Parliament to consider within a limited time scale. As I mentioned earlier, the issues are so complex that even specialist lawyers are less than totally certain in every case about the possible interpretations.
I would like to put down a marker: if the act turns out to be deficient in a number of detailed respects, the Parliament and the Executive—which is accountable to the Parliament—should revisit the subject. We have no second chamber and it will be some time before all the implications are known, which is why we have not opposed what I would describe as the Henry VIII provisions in section 116, which gives ministers enormous powers. If I may say so, the measures are illiberal ones for a Liberal Democrat minister to introduce, but they are justified in this case because they give us the certain knowledge that the bill will not be the final word if there is specialist evidence that it should be amended in the public interest.
We are content and, indeed, happy that the bill should proceed.
As others have said, the bill is certainly the most technical bill with which many members of the Justice 1 Committee have been involved, which is why we are rather glad to have got through it. I echo the congratulations and thanks that Michael Matheson, Lord James Douglas-Hamilton and the minister offered to the various people, including the clerks and advisers, who assisted us in trying to make sense of the bill's complex detail.
Members will be glad to know that I will not rehearse any of that detail. Instead, I will use my time to commend the Executive for the way in which it has responded to the issues that back benchers raised at every stage, of which I will give a couple of examples. Considerable safeguards for sheltered housing tenants have been sought and won by, among others, Ken Macintosh and Sylvia Jackson. Although neither of them are members of the committee, they took up the interests of their constituents and, even though the European convention on human rights intervened at the last moment, progress has been made.
Maureen Macmillan and Lord James Douglas-Hamilton doggedly pursued the issues about acquiescence that were raised at the committee, and, ultimately, the Executive listened. Maureen Macmillan sought to ensure that bodies that sell land to provide affordable social housing do not find that those houses are subsequently sold on, which might threaten small communities. Finally, Donald Gorrie and Maureen Macmillan championed the concerns of the Church of Scotland and tackled the issue of rights of pre-emption over the sale of parliamentary churches and manses. The list goes on.
In the area of health care burdens, the Executive's decision to make it possible for health boards to decide on appropriate sites for future buildings—whether on an existing health board site or elsewhere—is a welcome step. I also want to mention the Executive's decision to create the illiberal powers to which Lord James Douglas-Hamilton referred. I do not say this out of self-interest, but although those powers might be illiberal, the decision takes the matter away from the Justice 1 Committee's agenda and sends it back to the Subordinate Legislation Committee. If members of that committee want to receive some hints and tips, we would be happy to oblige.
As members have said, the bill is detailed, but the big picture is that it will create a new system of land regulation for the post-feudal Scotland that the Parliament has inaugurated. Whatever the dryness of the legal language, the bill will be used daily by conveyancers up and down the country.
There is one outstanding big-picture issue that members of the committee from all parties want to leave with the Executive to tackle. Away back in the 15th, 16th or 17th century, when some of the laws that we are updating were first conceived, perhaps by a former Scottish Parliament, the purpose was no doubt to identify people's obligations to their neighbours in relation to the property in which they lived. The committee felt that the bill does not address fully our obligations to our neighbours, particularly those that relate to shared services and common grounds. Although the bill is a huge step in the right direction, there was a universal desire among committee members to take the next step in rebuilding communities, and to consider, through the housing improvement task force, how mixed-tenure estates might be better managed. We must also consider how, in the 21st century, we can take our obligations to our neighbours as seriously as they were taken when the issue was first debated more than 400 years ago.
I end by simply commending the Executive for listening. The bill process has been everything that the consultative steering group hoped for from the Parliament. It is a huge step forward in modernising property and land legislation in Scotland.
Other members have covered the ground well. It is interesting to hear from what Wendy Alexander said that what appears to be a dry and technical bill is all about creating communities. We still need such things as the law of the tenement, but the bill is a major step towards the creation of real communities. It should also encourage members of future committees that are landed with very technical bills. Most of the committee members started knowing nil about the subject, but by bringing together ministers' explanations, the useful lobbying by particular groups with specific problems, the advice of our excellent adviser, who understood the subject very well, and negotiation with the minister, we have produced a good bill.
I am sure that changes will be made to the bill in due course. Nonetheless, it shows that the committee system can work even in dealing with a very technical bill that people might think a bunch of politicians would not be skilled enough to deal with. The minister deserves great credit, as do the other people who have been mentioned. I hope that we have done a good day's work today.
I begin by reiterating the comments that I made at stage 1. I whole-heartedly welcome the bill, especially as it addresses the issues that were raised with me by my constituents and through the Sheltered and Retirement Housing Owners Confederation. In particular, I thank Marie Galbraith, who was in the public gallery earlier with some of the SHOC members, and John McCormick, who among others met a cross-party group of MSPs at the Parliament during the passage of the bill.
Since the stage 1 debate, substantial steps have been taken to address the issues that SHOC raised. Those include the extension of the definition of sheltered housing to include retirement housing; the reduction of the maximum five-year duration for manager burdens to three years; the introduction of majority decision making with respect to real burdens; special two-thirds protection for burdens that provide sheltered housing with its special character; and an undertaking to consider the question of prior consultation before burdens are altered. Today, we also talked about shared equity regarding maintenance charges.
The only outstanding issue, which we have not been able to address today for reasons relating to the European convention on human rights, is the issue that was raised by Ken Macintosh regarding the letting of property by developers, whose powers could increase if that was taken to excess. We will need to keep an eye on that issue, and I welcome the on-going study that the minister mentioned.
Another matter that was raised at stage 1 was the development management scheme, which we whole-heartedly support. We are working with the Westminster Government on that scheme, which will be a good step forward in providing accounting systems for owners. I asked the minister for clarification of the scheme and its implementation. As the Lord Advocate indicated at stage 2, when the development management scheme is applied, it will bind all the properties in the development. Therefore, the terms of the scheme will be binding on each of the owners, regardless of how many properties they own. A manager's—or a management company's—responsibility will be outlined in the terms of appointment, and the scheme will provide terms for his or her appointment and duties. That is good news.
Finally, I thank all the MSPs, including Ken Macintosh, Dennis Canavan, Brian Adam, David Davidson, Margaret Smith and John Young, who came along to the meetings that we had with SHOC throughout the passage of the bill. I also thank the minister for being so receptive to the recommendations that we made. As he said, the bill is more a property law reform measure than a bill about sheltered housing, but I hope that the approval of the bill will please SHOC members. I am sure that it will. The bill will give them a much greater say in their affairs and will empower them as owners. The bill is important.
I welcome the bill, especially the added protection that it will give to owner-occupiers in sheltered housing developments. However, I have specific questions about the proposed development management schemes for sheltered housing developments. I understand that the schemes will be introduced by secondary legislation at Westminster, under section 104 of the Scotland Act 1998 and that that will be the first application of that section. Therefore, the matter is important. The Executive has apparently indicated that the secondary legislation that Westminster will pass will have a commencement date that will coincide with the Title Conditions (Scotland) Act 2003's commencement. However, questions must be asked to clarify certain aspects of that procedure, particularly because it will be used for the first time.
What consultation will there be in respect of the development management schemes and the secondary legislation that will introduce them? What input will there be from the Scottish Parliament? Will we leave the matter entirely to Westminster? What input will there be from interested parties, especially those such as residents of sheltered housing accommodation and the organisations that represent them? What status will the development management schemes have? Will they be mandatory or will they be left to the discretion of the managers? In other words, will they be optional rather than mandatory? What details will be included in the schemes in respect of accountability and reporting mechanisms?
It is essential that, in order to ensure adequate accountability, the status of the management schemes should be mandatory rather than optional. There is currently no obligation on sheltered housing managers to provide a report on how residents' moneys have been used. I had correspondence from constituents from the Springbank Gardens complex in my constituency on a referendum that was organised not just at that particular complex but in a total of seven different developments that are—or are supposed to be—managed by a company called Sheltered Housing Management Ltd.
I will read to the minister the wording of the referendum:
"Do you, as owner, consider that it is both unacceptable and impracticable for SHM Ltd to manage your complex, without consultation to budget for services, changes to services provided, and without the provision of annual accounts to explain how your monies are being disbursed, and to verify that sufficient funds have been properly set aside to meet ongoing commitments such as repairs, refurbishment etc? If you are in agreement with these aims, please append your signature below."
I am informed that there was a 78 per cent response to the referendum, with 83 per cent of respondents in favour of mandatory accountability. However, the referendum result was ignored by the arrogant people who are in charge of SHM Ltd. Such arrogance must be stopped—by legislation, if necessary. I hope that the proposed development management schemes will address the important concerns to which I referred and that they will lead in time to better, more efficient and more accountable management for the benefit of sheltered housing residents.
The bill, when enacted, will improve the quality of life for many people throughout the country and will allow people of all ages to take greater control of their own property.
I want to mention one particular group, which is people who live in retirement housing. Several factors might provoke the decision to buy into a retirement complex, but many people are influenced by the prospect of security and peace of mind. That is how such flats are marketed, so it is easy to assume that the developer, the factor or the manager who runs the complex will have the residents' best interests at heart and will look out for them. Unfortunately, and as far too many people have discovered for themselves, all too often that is not the case. Examples show that instead of security, at worst, residents face a culture of bullying and intimidation and, at best, are in the unacceptable situation of owning their own homes and paying additional costs for services, but are not consulted on those services, have no power to control them and have no method of holding management companies to account.
The bill addresses those concerns. In simple terms, it will remove control from the developer and give it to the owners. The owners will be able to appoint or dismiss a manager and to vary regulations that govern the complex. In the future, a retirement housing complex will be treated as one community. The owners of a complex will be able to control what happens to it and they will be able to do so by majority rule, counting one vote for each unit within the complex.
The bill is primarily about property rights, rather than the rights of individual retirement homeowners. It is very welcome, but it does not address all the concerns that affect that strong-minded but potentially vulnerable group of older people. I welcome the minister's commitment to further research and study into the anxieties that have been highlighted, and his recognition that despite the progress we are making today, the issue remains live. I also pay tribute to the work of Mrs Galbraith, Mrs Reid and the other members of SHOC. They have not only opened my eyes and those of many of my colleagues to the dubious practices that go on in some retirement complexes, but have persuaded and convinced the Executive to radically redraft a section of the bill to address specifically the concerns of retirement homeowners. I thank them for their work. I also thank the members of the Justice 1 Committee, my colleagues Sylvia Jackson, Brian Adam, Margaret Smith and others. I also commend the efforts and patience of Joyce Lugton and the Executive bill team.
The bill, coupled with the abolition of feudal superiority and the forthcoming development management scheme, offers retirement home owners the opportunity to take control of their own affairs. I commend the bill to members.
The Scottish Parliament information centre's overview of the bill states:
"The Bill represents an important piece of property law reform and is arguably of greater practical significance than the Feudal Act that preceded it."
That is certainly true. The next sentence goes on to say:
"Yet it is also a complicated and technical Bill that can appear daunting for the layperson to tackle."
How very true. The jury is out on whether it is more daunting than the Leasehold Casualties (Scotland) Act 2001, but I thank the expert advisers and witnesses who came before the committee and led us through the legal maze. That is important when there is such confusion about what burdens exist, what they mean and who can enforce them.
When I get lost, I think of my own extant title deeds, which prohibit me from keeping pigs, sheep and other farm animals, but allow me to bleach linen. I have found the latter quite useful. I think that those title conditions were breached during the war, when somebody kept hens and ducks for food. Unfortunately, we did not know who could take me to court if I breached the conditions and kept a few pigs at 6 Baronscourt Road; however, I found out that it was the Earl of Willowbrae. I do not know whether he still exists, but he is on my title deeds. To be serious, the previous situation meant that no one knew who could enforce burdens against whom.
The Title Conditions (Scotland) Bill was therefore essential when we got rid of feudal superiority; people know where they are now. They know what a burden is and the bill tells them who can enforce a title condition and what rights they have. It represents a modernising of the Scottish legal system, in keeping with the fact that we now have planning regulations to prevent people like me from setting up little farms.
However, the issue of sheltered accommodation is important and has been highlighted by several members. I am delighted that the minister will monitor what happens with regard to title that is still retained by developers. That is a good example in support of the argument for having post-legislative scrutiny by the Justice Committees. If we can envisage a problem like that, we should be able to examine whether an act is doing what it was intended to do when it has been running for some time.
Christine Grahame's account of what she is not allowed to do under her feudal conditions reminds me of my feudal conditions. I live in a former manse of the Church of Scotland and am not allowed to sell strong drink. If that burden were converted to a neighbour burden, my neighbours might quite like my selling strong drink because the nearest pub is three miles away. I might pursue that later.
I thank the clerks and the adviser to the committee for the help that they gave me in drafting the amendments that I lodged for stage 3. Not having any legal training, I had no idea how to write amendments that would reflect the concerns of the people and organisations that had approached me. On one occasion, Scott Wortley had to phone the secretary of the Highland Small Communities Housing Trust to find out from him what he wanted an amendment to be about. I am pleased that the amendments were well enough drafted to be accepted by the Executive, and that they have been included in the bill today.
One of the daunting aspects of the bill was the number of organisations and people whom the bill would affect. As time went on, those people came out of the woodwork to voice their concerns about what was happening; I commend the Executive on the extent to which it was able to address those concerns.
I thank everyone who was involved in the process for making it a worthwhile experience, if one with a steep learning curve.
I thank members who have taken part in the debate for the warm welcome that they have given to the bill which, as Michael Matheson said, will have an impact on the daily lives of the people of Scotland.
I share with Maureen Macmillan a provision in the title deeds of the old manse in which I live that bars me from selling drink for profit. I feel compelled to add that we are probably not allowed to sell it for no profit, either.
Is the minister allowed to consume drink in his house?
I hope that I am, otherwise I have been in breach of the title conditions for some time.
Such examples underline the way in which title conditions impact on people. As technical as the bill might be, it will have an effect on people's lives and it is right to recognise the impact that it will have on sheltered housing. Being a technical property-law reform measure, the bill's primary function was not to deal with the law on sheltered housing. However, as many members have said, it will contribute significantly to allowing those who live in sheltered housing to have more say over their housing arrangements, and to more transparency, including transparency in relation to accounting and charges.
Dennis Canavan asked whether the development management schemes would be consulted on. It is perhaps worth rehearsing that the development management scheme was in the original Scottish Law Commission draft bill and the draft bill that we consulted on before presenting it to Parliament. There has, therefore, already been quite extensive consultation on the scheme. We were unable to proceed in that regard at stage 1 because of a technical problem with regard to the nature of a development management scheme, which would almost certainly have put the matter beyond the competence of the Scottish Parliament. That is why we went down the road of using a section 104 order, which allows to be brought into effect a provision that everyone accepted was good. It is worth putting on record the co-operation that we received from United Kingdom Government ministers in doing that. I understand that there is no formal procedure for the presentation of a section 104 order—it is a normal Westminster order. However, I hope that the fact that the order has already been consulted on and that members will have been able to have sight of it before it is debated at Westminster will satisfy them.
The development management scheme is not mandatory, nor should it be mandatory: it is a provision to which the people in a development can sign up. However, it is widely acknowledged as being a helpful tool in—as Wendy Alexander said—trying to ensure that there is an obligation on residents to respect their neighbours' property, in developments in which there is a large number of individual units. Such mutual obligation is—as are rights—necessary. That will also be the theme of the third leg of the property law reform in reform of the law of the tenement, on which we hope to consult soon.
I welcome the fact that all parties in the Parliament support the bill.
Will the minister spare a thought for an absent friend who would have loved the debate? It was often said that Donald Dewar's idea of heaven would have been a law reform (miscellaneous provisions) (Scotland) bill committee stage without limit of time. Am I right in thinking that he would have approved of the bill?
He would undoubtedly have approved of the bill. It is a lawyer's paradise, not only in its debating, but possibly in its application. I am sure that Donald Dewar would have approved of the bill, not least because it has shown the Parliament working at its best, setting in train for Scotland a modern system of law reform and consigning the feudal system to history.