The Justice Committee is undertaking an inquiry into the effectiveness of the provisions in the Title Conditions (Scotland) Act 2003 in relation to the appointment and dismissal of property factors and the recourse available to homeowners where they are dissatisfied with the services of land-owning maintenance companies.
The Committee welcomes evidence from individuals as well as from organisations and professional bodies. All responses will be made available to the Committee.
What information is the Committee looking for?
The Committee is looking into whether the provisions in the 2003 Act act as a barrier to switching property factor and whether it offers sufficient recourse for those dissatisfied with the services of land-owning maintenance companies. The Committee is also interested in views and experiences of the options available under the 2003 Act to vary or remove existing real burdens.
You may also wish to address any or all of the following specific questions:
1. Section 53 of the 2003 Act allows enforcement rights in relation to real burdens to be created by implication where properties are “related”. Are there problems with the way this section operates in practice?
2. Section 63 of the 2003 Act controls the duration of “manager burdens” (the ability of a developer to appoint a property factor). Do the timescales contained in section 63 strike the right balance between the interests of homeowners and the interests of developers?
3. Local authorities and housing associations can impose a manager burden which lasts up to 30 years on properties purchased under “right to buy” legislation. Is it necessary to tie homeowners into an arrangement for such a long period of time?
4. “Right to buy” homeowners can vote to replace a property factor with a two-thirds majority despite a manager burden being in place. Are there any examples of situations where this right has been exercised? Is a two thirds majority achievable in mixed tenure developments?
5. A local authority/housing association may own units in a development and provide the factoring service. Should the local authority/housing association’s voting rights be modified to make it more difficult for them to block a vote to dismiss them as property factor?
6. Section 28 of the 2003 Act allows owners to dismiss a property factor by a simple majority vote where the title deeds are silent on the issue. Section 64 provides that, regardless of what is stated in any real burden, a property factor can be dismissed with a two-thirds majority vote. Are these provisions workable in practice? The Committee would be interested in any experiences of homeowners/residents’ associations in using the legislation in this way.
7. Under a “land-owning maintenance company” model, an organisation owns green space around a development (which may encompass landscaped areas, drainage systems, play parks etc.). The land-owning maintenance company is required under real burdens affecting the land to maintain it and homeowners are required to pay for this service.
(a) Are the current options available to homeowners who are unhappy with the service provided by such a company effective?
(b) Are there options for reform which balance the interests of homeowners and land-owning maintenance companies? (Note that the Scottish Government has consulted on this issue[1]).
8. It is possible to vary or remove real burdens under sections 33 and 34 of the 2003 Act. However, if one owner objects, the variation will not be effective for the whole development. Do these provisions set the right balance between the interests of separate homeowners? The Committee would be interested in the experiences of homeowners/residents’ associations in using this aspect of the legislation.
9. It is also possible to vary or remove “community burdens” (a form of burden affecting a number of units in a development) under sections 90 and 91 of the 2003 Act by application to the Lands Tribunal. A sum may require to be paid in compensation to any homeowner negatively affected. Do these provisions set the right balance between the interests of separate homeowners? The Committee would be interested in the experiences of homeowners/residents’ associations in using this aspect of the legislation.
10. An application to the Lands Tribunal may require the interested party to instruct a solicitor. The losing party may also be liable to pay the legal expenses of the winner. Note also that legal aid is available where the applicant meets the qualifying criteria. Is this form of procedure appropriate to the issues at stake? Does it inhibit homeowners from bringing applications under the 2003 Act? Is it appropriate/desirable to create an alternative procedure?
The Committee’s focus is on the operation of the 2003 Act and what barriers it may create in regard to these issues. It cannot, however, intervene in individual cases.
How to submit written evidence
Before making a submission, please read our policy on the treatment of written evidence by subject and mandatory committees. All written evidence received may be published by the Parliament and will be treated as a public document.
Submissions should usually be no more than four sides of A4 paper. If they need to be longer than this, they should be accompanied by a short summary of the main points. If possible, submissions should be submitted electronically, preferably in MS Word format, by e-mail to: [email protected]
The deadline for written submissions is Tuesday 26 February 2013.
What happens next?
The Committee will consider submissions received and may call witnesses to give oral evidence during March.
[1] Consultation on the options for maintenance of land on private housing estates (2011).