Meeting of the Parliament 09 January 2014
A critical function of this Parliament—and one that, as I know many colleagues agree, we do not do enough of—is post-legislative scrutiny to review our laws and check whether they are serving people properly. It was with a few sighs that, last March, the Justice Committee undertook its inquiry into some of the provisions of the Title Conditions (Scotland) Act 2003. As Sandra White said, I must take some responsibility for the suggestion, but I think that the outcome has been very good.
The 2003 act is a technical piece of legislation, as Christine Grahame explained to us very well, but it is critical to people when their property comes up against the issues for which it provides. I took a particular interest in section 53, having been approached by concerned constituents and persuaded that it was not working as was intended and has had unintended consequences. Those concerns were borne out by the evidence that the Justice Committee heard last year.
Section 53 is about the right of neighbours, or people in “related properties”, to enforce burdens against each other. I will not go into an explanation of burdens, because I do not think that I could do it better than the committee convener did. The problem is that enforcement rights can be found to exist where no one intended them. Professor Robert Rennie, who has already been quoted in this debate and is one of Scotland’s leading property lawyers, said that the effect of section 53 could be to create rights where none existed before feudal abolition and that people who were not subject to conditions before 2004 suddenly become subject to burdens without their consent.
We were told that section 53 is causing uncertainty. With the provision on “related properties”, it is difficult for people to work out who might have a right to enforce a burden against their property in the future, and it is costly for prospective property owners to instruct lawyers to work out who might have that right of enforcement against them—say, if they decide to build an extension to their property. Often, solicitors cannot identify an exhaustive list of who may or may not have enforcement rights against their clients. There is uncertainty in a field of law in which it is highly desirable for people to have as much certainty as possible, especially when they are buying a property.
Several law firms explained the problem. Biggart Baillie described it in its written submission, and Brodies LLP and Pinsent Masons raised similar concerns and frustrations. In the light of the uncertainty, which affects property sales, and the evidence that section 53 was inserted by a stage 2 amendment to the bill, as Roderick Campbell said, with the intentions and consequences perhaps not being properly scrutinised or foreseen at the time, I agree with the Justice Committee’s recommendation that section 53 be referred to the Scottish Law Commission for review, and I welcome the Scottish Government’s acceptance of that recommendation.
I note that the review will most likely commence in 2015 as part of the ninth programme of law reform, but I ask the minister for guidance on when she anticipates that we will see a change in the law as a result of the review. The review of section 53 is a satisfactory outcome of the Justice Committee’s inquiry, and I thank the clerks, the convener and those who gave evidence.
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