Hansard

With regard to the point that Lord James made about the ECHR, I would say that, given that section 8(1) states that "A real burden is enforceable by any person who has both title and interest to enforce it",it might not be possible to prove that every owner on an estate comprising 600 houses, for example, had an interest to enforce. The question is one of standing up not for Scotland's rights, but for the rights of individuals who could well have an interest and a right to enforce, even though they are not within the 4m area stipulated by Lord James in his amendment 17. The example that I gave was of someone living well inside an estate, who would have an interest in maintaining the appearance of the entrance to the estate. If the entrance to the estate became run down in breach of a condition, it could have a material impact on the value of the house. I believe that the owner who lives well inside the estate would have an interest and that, therefore, the matter of ECHR compliance that Lord James mentioned is not some notional matter, but one that could be meaningful for people.It is our view that the right to enforce a real burden is a possession under article 1 of the ECHR, which guarantees the right to property. The loss of a right to enforce a real burden would be an interference in the rights of property and falls to be considered as a control on the use of property under article 1 of the ECHR. To comply with article 1, such a control on use must be lawful, in the general interest and proportionate. Obviously, balances must be struck, but we believe that to withdraw that right without the availability of compensation could involve a material loss that would be incompatible with the ECHR.A point was made on enforcement. Concerns have been expressed on a number of occasions about the great numbers of people to whom things would need to be intimated. The specific concern that was raised in evidence to the committee related to a situation in which the proprietor has breached a burden in the past, by building a garage, for example, and seeks to remedy the position in the context of the sale of property. It is important to look at other provisions of the bill and to see two significant changes that materially alter the situation and, I believe, improve it. The first is the reduction in the period of negative prescription from 20 years to five years in section 17, which we have just approved. That means that if the garage was built more than five years ago, there would only rarely be a difficulty, and the purchaser's solicitor could be expected to accept the position without any difficulty at all.The second is the clarification that section 16 provides on the extinction of real burdens by acquiescence. If the garage had been built within the past five years, but not within the past few months, it is thought that the burdened proprietor should, in almost all cases, be able to rely on section 16 to extinguish the restriction, at least in so far as the restriction prevented the building of the garage.The building of a garage is an overt act. It is clearly reasonable to suppose that a benefited proprietor living nearby would know, or should know, that a garage had been built. The benefited proprietor does not also have to know that the building of the garage breached the terms of the real burden, or that he had been entitled to enforce the burden. The presumption set out in section 16(2) is that benefited proprietors are to be taken as being in a position of knowledge, and that they did not object.Those matters have a material bearing on some of the concerns that have been expressed. With regard to my amendment 111 and Maureen Macmillan's amendment 110, I have tried to explain that amendment 110 only relates to a limited number of properties—in contrast to amendment 111—and that there is no policy reason why that provision should be restricted just to right-to-buy estates.On amendment 11 and the provisions relating to section 52, I have sought to indicate that what is being addressed is not some provision that extends enforcement rights, but rather one that gives protection to certain rights, which could well be lost if section 52 is not in place. I give the example of a tenement where, if the conditions had been established by a non-feudal charter, there could be no one to enforce the burden, which means that there would be no burden, and therefore something simple like an agreement to maintain a common roof would have no one to enforce the burden and it would disappear. I do not believe that that is what the committee wants to happen. I hope that I have explained that that is the purpose of section 52, and that it is not a section that tries to extend the range of people who can compel enforcement, as has been suggested.