Hansard

It seems a long time since the Justice Committee took evidence for its inquiry into the Title Conditions (Scotland) Act 2003, but it was in fact in March last year. In the short time available, I will make a few points, although I cannot promise the convener the levity that she might hope for.

It is common ground that section 53 of the 2003 act does not work in its current form. As Professor Rennie said,

“what section 53 may have done is give people enforcement rights in pre-2004 title conditions that they did not have before the legislation.”—[Official Report, Justice Committee, 19 March 2013; c 2531.]

Section 53 was not part of the original Scottish Law Commission proposal but was inserted at stage 2 to cure a particular problem. There might be a lesson for the Parliament in that about consideration of bills at stage 2. Section 53 is unclear and it is virtually impossible for advisers to advise their clients competently on it. I therefore welcome the fact that the section has been referred to the Scottish Law Commission, although I am disappointed that it might be 2015 before the commission can start work on that.

I move on to land-owning maintenance companies that manage common parts of estates and the difficulties with removing them. It came out of our inquiry loud and clear that, where the land-owning maintenance model prevails, the rules in the 2003 act to enable a majority of owners to change factors have no practical role at all because, where common areas are owned by such companies, the manager is not technically a factor or manager, as the company manages not other people’s property but its own property. Even if a factor can be changed, while the original factor retains the land, factor 2 will have nothing to manage.

Alternative thinking is required if we are to tackle that problem. Some witnesses from the factoring side talked optimistically about changing managers. For example, the witness from Greenbelt Group mentioned its consumer choice programme. However, there seems little evidence of interest in that on the part of house owners. Therefore, with respect, I think that we are likely to need something more radical. The community right to buy was mentioned and is at least worth considering, but we should not pretend that purchasing such areas would have the attractions that purchasing parts of rural or sporting estates would have. Compensation would need to be paid and legal expenses would be incurred, so that approach would clearly not be for the faint hearted. The Government favours a code of practice, although the devil will be in the detail of such a code. However, I am pleased that the Government recognises that the issue needs attention.

In relation to the enforcement of demands for payment against property owners in respect of costs that are incurred in maintaining areas of estates, evidence to our inquiry suggested that, depending on the terms of the title deed, such demands might be unenforceable in so far as they relate to a property that does not have a connection to the owner’s property. If there is no right or servitude over the common land, it is possible that the land maintenance company has no right to recover costs from an owner. I slightly disagree with John Lamont, in that I thought that the professors were slightly divided on the issue of enforceability, but they agreed that a test case would assist. Obviously, the land maintenance companies seem to be in no hurry to resolve the issue, so we will just have to see whether the man of straw with legal aid that the convener referred to emerges any time soon. More particularly, I welcome the Government’s acceptance that, in the long term, arrangements for land maintenance should be discussed and reviewed with local authorities, developers, the maintenance companies and, of course, consumer representatives.

On the legal expenses that are involved in taking applications to the Lands Tribunal for Scotland, ironically, one point that has been expressed in evidence on the Tribunals (Scotland) Bill, which the committee is still considering, was about the desirability of keeping any expenses in the Lands Tribunal moderate and therefore in keeping with expense rules in tribunals generally. One point that emerged from our inquiry is that the Lands Tribunal’s approach to expenses prior to the 2003 act was normally not to make an award of expenses against someone who had unsuccessfully defended an application. Of course, that approach was curtailed by the terms of section 103 of the 2003 act. The Tribunals (Scotland) Bill currently allows for the Lands Tribunal to make an award of expenses. It would be appropriate to review the whole issue of the level of expenses when the new system starts operating, if the Lands Tribunal still operates in that new system. That is of reasonable urgency.