Hansard

For many existing complexes, the flats will have been sold, and the developers' role will disappear on the appointed day. Therefore, concerns about developers are backwards looking. Their role will be strictly time limited.In the future, owners will take control. It will be up to them to appoint managers and to establish the regime under which they live. They will have to decide which powers to delegate to managers, but it will not be up to managers to rule complexes. Managers will be able to take decisions only if the owners have given them the authority to do so. It will be up to owners to change their burdens and, in most instances, they will be able to do so by a majority decision.In the case of the core burdens, a majority of more than half will be needed, but that is not an attempt to impose an external protection in favour of managers. It will be up to owners to make the moves; the role of the managers will be to manage the complex, not the owners.Many of the amendments are, understandably, based on suspicions about what happened in the past and on an understanding of sheltered complexes that is largely no longer relevant. In the light of my comments about the new regime for sheltered housing, I hope that members will feel reassured about the purpose of the bill and the way in which amendments are structured.Amendment 22 removes a protection for residents in sheltered housing by raising the threshold for the majority required to allow that majority to confer powers on a manager under section 27.The policy behind the bill is that some aspects of sheltered housing are so fundamental to the operation of such housing that they should not be removed or varied by a simple majority. That view received overwhelming support from respondents to consultation.Representations were received that expressed concern that a simple majority could decide to regulate the operation and management of the complex so as to remove some of the most important aspects of and protections in sheltered housing. Such changes might be instigated by younger, more active owners in the complex, and a bare majority might be assembled against the wishes of a minority of older, frailer owners who want the full range of services to be maintained and who rely on those services, which were the reason why many of them entered sheltered housing.For that reason, a higher majority—we suggest two thirds—is required when conferring powers under section 27 on a manager in a sheltered housing complex. I hope that, with those explanations, Kenneth Macintosh will consider withdrawing amendment 22.Amendment 113 is closely bound up with that. It takes up a recommendation in the committee's stage 1 report and deals with the size of the majority that is required to vary or discharge core burdens in sheltered accommodation. During the committee's evidence taking, it became clear that the 75 per cent threshold was regarded as too high. The committee suggested that two thirds would be more appropriate. As the Deputy First Minister said in the stage 1 debate, the Executive is happy to accept that recommendation, and amendment 113 will make that change.Amendment 4 was lodged by Michael Matheson and I think that Jim Wallace's name appears as a supporter of it. Obviously, we are happy with that amendment, which would make the threshold two thirds. It follows that the Executive considers that 60 per cent is too low and that we are happy to go with the committee's view as expressed in its stage 1 report.Amendment 9 also deals with majorities, but its aim is rather different. It appears to introduce a requirement for only a simple majority to sign a deed to vary burdens other than core burdens in a sheltered housing development. However, the amendment would not have that effect. It would overrule any provision in a deed that set out the burdens for a sheltered housing development that required more than half the owners to sign a deed of variation. A deed could not therefore provide a special higher majority for varying core burdens. However, strangely, it could provide for the core burdens to be varied by fewer than half the owners.The most important conditions in relation to sheltered housing, other than core burdens, will be provisions on the appointment or dismissal of a manager. Section 59 deals with a developer attempting to retain control of a development by imposing a high threshold majority—possibly even 100 per cent—for dismissing a manager. Irrespective of whether the titles require a higher majority, section 59 will require a majority of only two thirds.The Executive does not believe that many other sheltered housing circumstances are likely to be subject to a requirement for a majority higher than 51 per cent. Except in the special circumstances of core burdens and the appointment or dismissal of a manager, there seems no good reason for the bill to interfere in arrangements that have been drawn up between private individuals who are contracting freely. I therefore ask the member to consider not moving amendment 9.Amendment 8 also concerns majorities. It would replace the required majority for using section 32 to vary or discharge a burden, other than a core burden, in a sheltered housing scheme. In those circumstances, section 32 currently requires the agreement of the owners of a simple majority of the units that are affected. Under amendment 8, the decision would be made and the deeds signed only by a majority of those who responded when asked about a proposed variation or discharge. The amendment seems to throw up a large number of problems. It is not clear how the inquiry is to be made, or by whom. There seems to be no check against improper notification or what happens when only a few owners are consulted. It also means that a small number of people could vary or remove conditions applying to the entire community. If everybody in a community of 100 were informed of a proposal, and only 10 people replied, six in favour and four against, the decision of six people would affect the whole community. Admittedly, there would be an opportunity for the others to apply to the Lands Tribunal, but that would be an ineffective safeguard.Section 32 allows the burdens to be discharged, reworked and replaced with new obligations. It is equitable to require the owners of a majority of the properties affected to agree to the change, and for them to be fully aware of the implications. That principle was supported on consultation. The amendment could allow a minority to take advantage of their neighbours' apathy by imposing conditions in the interests of themselves rather than those of the community. I invite the member not to move amendment 8. Amendment 229 attempts to introduce a requirement to consult all owners in a sheltered housing development when a majority of owners are attempting to vary or discharge community burdens. The amendment is unnecessary. A majority of the owners, and in the case of core burdens a two-thirds majority, will be required to sign the deed of variation or discharge or give authorisation to sign to a manager where that is permitted. Clearly, they will have been consulted. Section 33 requires any minority not signed up to the proposal to be informed. They will have an opportunity to prevent the discharge or variation at the Lands Tribunal. Another statutory round of consultation would just add to the delay and expense of the process without necessarily settling any issue of contention. It is important to provide information to the minority who have not signed up to the proposal and an opportunity for them ultimately to prevent the change if it is unfairly prejudicial to them. The bill does that. The consequences of the amendment would be that every single person would have to be consulted. For example, somebody living in sheltered housing might visit his or her son or daughter in Australia for six months and therefore be away from the complex. The obligation to consult would require that person to be informed of the proposal, which would hold up a proposal that might very well have widespread support. Because of the obligation to consult everybody, it becomes impossible to see through changes. Equally, if somebody is frail, there may be difficulties about deciding whether that person should actually be consulted. Amendments 23, 24 and 25 deal with the position of developers or managers. Amendment 23 is prompted by concerns in some sheltered housing complexes that developers, who may be the feudal superior of the complex, or their representatives, may still own some flats or may have reacquired units with a view to continuing to exercise some element of control over the complex, through voting rights that are conferred by ownership.I do not want to belittle the difficulties that I know some residents of sheltered housing have experienced with unsympathetic developers and managers. The overall effect of the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions Bill will be to remove control from feudal superiors and to place it in the hands of owners. I should add that the Executive believes that the owner of a unit in a complex should have a vote for each unit that he owns, even if he happens to have been the developer at the start of the process. Of course, by that time, he will simply be a co-owner with the other people in the complex. Otherwise, we would be interfering unfairly with ordinary rights of ownership. As amendment 24 is similar to amendment 23, I ask the member to consider not moving it. In theory, it would mean that, where burdens have been imposed on—say—20 units in a housing complex and a housing association has sold five and retained the rest, the owners of only three units could vary the terms of the burden for all 20 units. Clearly, that would not be appropriate.Amendment 25 aims to oblige a manager who is authorised to vary or discharge units in a sheltered housing complex to consult all owners in the complex and to obtain the agreement of the majority of them before varying core burdens by a deed executed under section 32(2)(b). As that possibility is unlikely to arise, the amendment is unnecessary. The changes made by section 50(5)(a) to the operation of section 27 in relation to sheltered housing mean that, unless the deed setting out the burdens provides otherwise, the owners cannot delegate by simple or even three-quarter majority their power to vary a core burden. For sheltered housing, section 32(2)(b) applies only to non-core burdens. I therefore invite Michael Matheson not to move amendment 25.