Meeting of the Parliament 09 January 2014
Ah. “Thereby” is tactful. I welcome the opportunity to open the debate on behalf of the Justice Committee and thank all those who provided written submissions and gave oral evidence to the committee.
You may feel that you have drawn the short straw, Presiding Officer—perhaps we all have—because I have 10 minutes yet again. I may struggle to fill the time, although I probably will fill it. Fear not—the subject is full of life. On the face of it, it looks like the driest of dry topics—and, my goodness, we have had a few of those in here—but not a bit of it. Although the language is technical and the law is a bit tricky, it is to do with day-to-day problems that cause real distress and angst for people.
First, here is the tricky bit. There will be a test afterwards. I should say in passing to my colleague Colin Keir, who is lurking somewhere behind me—I am sworn to non-disclosure of this, so I am breaking a promise—that his request for an explanation in pictures is, regrettably, not practicable in the chamber. So, let us take a deep breath.
Title conditions are legal obligations that appear in the title deeds of land and buildings. They burden one property for the benefit of another property and survive changes in the ownership of the properties concerned. Often, they appear in the title deeds of groups of properties, and the owners in question have mutual rights to enforce the conditions against each other.
The word “burden” should not frighten the horses; I will give an example. Members may have been there themselves. If they have not, I am sure that they will have had constituents who have been in this pickle: when communal repairs to the roof or stairwell of a tenemented property are urgently needed, but only those who are affected—let us say the top-floor flat occupants—feel the urgency as they watch the damp patches spread across the ceiling and hear the drip, drip, drip of unwelcome rainwater in the eaves. If there is no factor to instruct—more of that later—the situation is even more trying. The six or eight tenemented properties may share the liability for the cost of the repairs to the roof, but because of those tricky little title deeds and those burdens, saying it is easy, while getting the money for the work to be done is quite another matter.
We can add to that mix the difficulty in getting repairs agreed and paid for when some of the properties in the tenemented building are owned by people who exercised the right to buy those properties from the local authority, while other properties are rented from housing associations. Mixed ownership makes it even more difficult to get any kind of agreement, no matter what it says in the title deeds about getting the leak in the roof fixed.
It should be an advantage to have a factor who is employed to manage all that for everybody in a tenement or a bigger development where there are shared liabilities for repairs and maintenance of what I will call common property—which means roofs and stairwells, although it can include walls, fences and so on. If people have a good factoring service that they pay for, that is all well and good, but it is very difficult for people to switch factors if they are not happy with the service. Why is that? It is because—this is what it says in those tricky little title deeds—it can require the agreement of two thirds of the people who own the properties.
The first problem is that not all tenement flats are occupied by the owners. When there are absentee landlords, who does one tell or ask for agreement? It is tough enough in any event to get agreement, let alone to know who to ask. The first step would be to make it easier, one way or another, for those who require information to identify the landlords. The committee’s view is that the Government should legislate so that factors could tell everybody else who owns the various flats. That is not easy, however, because it would breach data protection rules. I know that the Government is not keen to do that; it would be helpful to know why because it is a big issue for people. It would also be helpful if the Government would tell us what it would do.
I move on to another tricky issue; this one is worse. Section 53 of the 2003 act gives neighbours a right to enforce burdens in title deeds—do members remember what those are?—against each other, in which there is something called a “common scheme” and the properties are “related”. I will test the Presiding Officer on that later. The phrase “common scheme” and the word “related” are very vague. After all, a person will know that the roof above their block of flats or the common stairwell that they share with each other in their tenement might give them a responsibility to pay for their maintenance and repair.
However, the trouble is that they might also be liable for some other common scheme of maintenance, perhaps at some distance, in the development in which they live. That might involve, for example, open areas that are not right next door to a person’s block of flats, above their head, or the stairwell and are not identified clearly in those tricky title deeds. What on earth does that mean a person is responsible for? That has caused a lot of problems.
The matter is so tricky that we asked the Government to invite the Scottish Law Commission—who are just the chaps and chapesses to deal with tricky legal issues when one does not know what to do—to review section 53 as part of its work programme. Thankfully, it has accepted that recommendation, so I hope that, in due course—as the lawyers would say—the matter becomes so clear that even I and perhaps Colin Keir and John Lamont will understand it.