Community Empowerment (Scotland) Act 2015: asset transfer guidance for authorities

16. After Agreement

Community Transfer Body's Offer

16.1. Section 83 of the Act sets out the next steps after a relevant authority has issued a decision notice agreeing to an asset transfer request. The same process applies whether the request was agreed to initially or following a review or appeal.

16.2. In response to the decision notice, the community transfer body must submit an offer to take ownership of the land, lease it or take up the rights covered by the request. They must do this by the date stated in the decision notice, which has to be at least 6 months from the date of the decision notice. The offer must reflect the terms and conditions set out in the decision notice; if those terms and conditions are significantly different from those included in the request, and are not acceptable to the community transfer body, they can appeal or request a review (see chapter 17). The offer can also include other reasonable terms and conditions that may be needed to make sure the transfer goes ahead within a reasonable time.

16.3. It may be helpful to continue to discuss the proposals with the community transfer body during this period. They are also likely to progress applications for funding and other preparations during this period.

16.4. If no offer is made by the date set in the decision notice, (and the community transfer body did not appeal or request a review in relation to the terms and conditions within 20 working days of the decision notice), the process is at an end. The agreement to transfer the property to the community transfer body has no further effect, and the authority is free to keep it or dispose of it as it wishes.

16.5. The community transfer body can, of course, submit their offer at any point after the decision notice is issued. It may take much less than six months in straightforward cases.

Conclusion of contract

16.6. Once you have received the community transfer body's offer, there can be further negotiations with them to conclude the contract. If the request is for ownership or a long-term lease this will be like any other property transaction, with exchanges between lawyers to agree the final wording, although for other rights the process may be much simpler.

16.7. The contract must normally be concluded within 6 months of the date of the community transfer body's offer. This does not mean the transfer has to take place within that time, but the date for the transfer, the price or rent and any other terms and conditions must be agreed. The contract may be conditional on other factors that are needed to allow the community proposals to go ahead, such as confirmation of funding or planning permission.

No contract concluded

16.8. If no contract is concluded within 6 months of the offer, and no other action is taken, the process is at an end. The community transfer body has no further claim on the property, and the relevant authority can keep it or dispose of it as they wish. Sometimes this is by mutual consent -circumstances may change, funding or other requirements may not be secured, and it may no longer be practicable to take the project forward. However, if the community transfer body believes there is still progress to be made, they can take action to keep the request alive.

16.9. There are three options available to the community transfer body to keep the asset transfer request going beyond 6 months after the offer date:

• agree an extension with the relevant authority,
• apply to the Scottish Ministers for a direction to extend the period, or
• appeal to the Scottish Ministers, under section 83(6), to determine the terms and conditions of the contract, which the relevant authority can be required to accept.

16.10. An application to the Scottish Ministers for an extension must be made between 6 weeks and 4 weeks before the end of the 6 month period. The community transfer body must first try to agree an extension with the relevant authority, so this may be raised around 4 months into the negotiations. An extension can be agreed at any point, and need not be used if the contract is concluded sooner than expected. There is no limit on how long the extension may be, but there must be an end date.

16.11. If the end of the period is reached, either the original 6 months or an extended period, and no contract has been concluded, the community transfer body can appeal to the Scottish Ministers. This must be done within 10 working days of the end of the period. Procedures for such appeals are set out in chapter 20.

Application to Scottish Ministers for an extension

16.12. The community transfer body can apply to the Scottish Ministers for a direction to extend the time allowed to conclude a contract in relation to an asset transfer request. The community transfer body must make its application between 30 working days (6 weeks) and 20 working days (4 weeks) before the end of the period of 6 months from the date of the community transfer body's offer. The guidance for community transfer bodies sets out the requirements for an application for a direction.

16.13. At the same time as making the application to the Scottish Ministers, the community transfer body must send a copy of the application to the relevant authority. You will have 10 working days to send any comments to the Scottish Ministers and the community transfer body.

16.14. Having considered the application and any comments made by the relevant authority, the Scottish Ministers will decide whether or not to make the direction as requested. The direction will be copied to both the relevant authority and the community transfer body, and will state the period within which the contract must be concluded.