Hansard

I welcome the opportunity to speak in this debate on the Justice Committee’s inquiry into the effectiveness of the Title Conditions (Scotland) Act 2003.

I was a substitute member of the Justice Committee when it conducted its inquiry. The written and oral evidence that we received was informative and very useful in understanding the issues in hand.

During my time as an MSP, I have been contacted by many constituents who have had concerns about the operation of property factors and in particular the mechanisms surrounding so-called land-owning maintenance companies. Those companies are given ownership of common property in new housing developments, such as parks, open spaces and play areas, with the burden attached to maintain that land in exchange for a fee.

The committee found that there were issues surrounding the dismissal of land-owning maintenance companies, particularly where residents were unhappy with the level of service that was being provided. I welcome the Government’s response that it will prepare a code of practice. Perhaps during the debate the minister can outline the proposed timetable for the work to prepare the code.

Although the inquiry focused on the provisions that deal with property factors, the report very much touched on issues that are relevant to local government. The committee heard that land-owning maintenance companies sometimes came about when local authorities withdrew from taking on the responsibility for the maintenance of open spaces around new developments.

The report was right to note that local authorities need to look seriously at whether the maintenance of those common areas is being carried out in a fair and equitable way. The adoption and maintenance of common spaces would have resource implications for local councils, but we must be careful to avoid creating disparities in the services that are provided to council tax payers in new-build property developments and those in older developments who have their open spaces maintained for free by their local authority.

I highlight to members that, in the Government’s response to the inquiry, it noted that Clackmannanshire Council has recently called for a change in the law so that the adoption and maintenance of public spaces should be treated consistently with the adoption of associated public roads, footpaths and street lighting.

I welcome the Government’s indication that it will take steps to promote the use of owners association schemes to maintain common areas in the short term and work with local authorities in the long term to consider the future role of councils in the maintenance of land in new developments.

The inquiry came across some interesting, if perhaps technical, points about the 2003 act. We heard that there were issues surrounding the enforceability of real burdens where a land-owning maintenance company was involved. In order to create a burden, a developer must own both the property to be benefited by that condition and the property to be burdened by the condition. Typically, developers do not transfer the common areas to land-owning maintenance companies until after all the houses in the new estate are sold, which means that they no longer own the benefited property.

That was all explained to us very clearly by Professor Robert Rennie, who taught me conveyancing and commercial missives at the University of Glasgow. At times, the committee evidence session felt more like a tutorial, but the committee heard that there were issues surrounding the enforceability of real burdens. That is important, because it relates to the rights and obligations of home owners. The Government’s response to the inquiry does not appear to acknowledge the legal uncertainty over that point, which is perhaps disappointing. Although there was disagreement about the extent to which that was an issue in practice, I urge the Government to look closely at whether a change in the law is needed in that area.

Professor Rennie and others also told the committee that there were issues surrounding the enforcement and application of section 53 of the act, which extends enforcement rights of real burdens where a “common scheme” is created with “related properties”. We heard that the unintended consequence of section 53 may be to create rights where none had existed before and that it went much further than what was necessary to ensure that housing associations can continue to enforce burdens against owners, which was the primary motive behind the section. I therefore welcome the Government’s response that it will invite the Scottish Law Commission to review that section.

As modern housing developments become more common, issues surrounding property factors and the maintenance of shared spaces will affect more people. Some of my constituents certainly feel that there is room for improvement on the right of home owners to enforce their rights in relation to common areas and spaces in their developments. I hope that, following the inquiry, we can take steps to provide greater clarity and fairness in this area of the law.