Community right to buy: guidance for applications made on or after 15 April 2016

Introduction

Use of this guidance

1. The community right to buy in Part 2 of the Land Reform (Scotland) Act 2003 (“the 2003 Act” or the “Act”) has been amended by Part 4 of the Community Empowerment (Scotland) Act 2015 (“the 2015 Act”).

2. This guidance applies to all new applications to register an interest in land received by Scottish Ministers on or after 15 April 2016.

3. Applications made under the 2003 Act before 15 April 2016 must use the legislative provisions set out in Part 2 of the Land Reform (Scotland) Act 2003 as they were prior to amendment by Part 4 of the 2015 Act. Applicants should also refer to the community right to buy guidance, dated June 2009. It can be accessed by using the following electronic link:
http://www.gov.scot/Publications/2009/06/08101427/0.

Community right to buy

4. The community right to buy provides the opportunity for community bodies ( CBs) representing communities across Scotland to register an interest in land or rights (hereinafter referred to as land) and buy that registered land once it is offered for sale. It provides CBs with a pre-emptive right to buy the land in which they have registered a community interest. To date, CBs have registered interests in land including fields, woodlands, and a range of other assets such as buildings, for example churches, a school, and a community centre.
The Act also allows CBs to register an interest in salmon fishings and mineral rights (except mineral rights to oil, coal, gas, gold or silver) which are owned separately from the land with which they are associated.

5. Applications to register an interest in land are normally made before the owner takes steps to offer the land for sale (a “timeous application”). They can also be made after the owner has taken steps to offer the land for sale or has taken steps to transfer the land (a “late application”), though late applications are expected to be submitted only in exceptional circumstances. In such cases, CBs have to meet additional criteria for their application to be approved by Scottish Ministers (Ministers).

6. The right to buy requires a willing seller: it does not involve a compulsory purchase of land registered under the Act. CBs may wait some time for an owner to decide that they want to sell the land. A registration lasts for five years unless a CB informs Ministers that its registered interest should be deleted, or it refuses the opportunity to exercise its right to buy or changes have taken place that would lead Ministers to delete its registration. CBs have the opportunity to apply to re-register a current registration for a further period of five years.

7. The community right to buy process must be exercised in accordance with Part 2 of the Act. The Act, its explanatory notes, and secondary legislation can be accessed via the following electronic links:

http://www.legislation.gov.uk/asp/2003/2/contents (2003 Act)

http://www.legislation.gov.uk/asp/2003/2/notes/contents (explanatory notes)

http://www.legislation.gov.uk/asp/2015/6/contents (2015 Act)

http://www.legislation.gov.uk/asp/2015/6/notes/contents (explanatory notes)

http://www.legislation.gov.uk/ssi/2015/400/contents/made?regulation-5-d (2015 Regulations)

http://www.legislation.gov.uk/ssi/2016/4/contents/made (2016 Regulations)

http://www.legislation.gov.uk/sdsi/2016/9780111030059/contents (2016 Order).

Purpose of this guidance

8. This guidance is intended to assist communities interested in acquiring land under the community right to buy provisions in Part 2 of the Act, as well as landowners/creditors in a standard security with the right to sell the land, and third parties who might be affected by a registered interest in their land or a CB’s application to exercise a right to buy, as well as individuals or businesses who think that their interest in a particular area of land may be affected by such an application. The guidance is written in three parts:

• the first part provides guidance specifically for CBs;
• the second part provides guidance specifically for landowners and creditors in a standard security with the right to sell land; and
• the third part is specifically for parties with an interest in the land to be registered under the Act.

There are also additional Annexes which provide further information for each of the three parts.

9. This guidance covers the statutory requirements of Part 2 of the 2003 Act (as amended by the 2015 Act) and associated subordinate legislation in the Community Right to Buy (Scotland) Regulations 2015 (“the 2015 Regulations”), the Community Empowerment (Scotland) Act 2015 (Consequential Modifications and Savings) Order 2016 (the “2016 Order”), and the Community Right to Buy (Scotland) Amendment Regulations 2016 (the “2016 Regulations”). References to the Act are included to direct the reader to relevant sections should they wish to read the legislation alongside this guidance.

10. This guidance cannot take the place of independent professional advice. Any group within a community wishing to create a CB for the purpose of exercising the community right to buy should obtain appropriate advice. Any landowner or other person with an interest in land who considers that an application made under the community right to buy legislation may affect their land or interest is also recommended to seek such advice. Such professional involvement may include legal advice as well as advice on valuation, environmental and land management issues.

11. The Scottish Government’s Community Land Team is happy to assist with any questions you may have about the community right to buy process. It cannot, however, provide legal advice nor, due to the impartiality required in advising Ministers on a case-by-case basis, advice that would be seen as supporting a particular group (e.g. a CB, a landowner or any third party) involved in a specific case.

12. This guidance is subject to review from time to time. If you are unsure whether you have the latest version available, or if you have any comments on the guidance itself, please contact the Community Land Team. Contact details are noted in Annex B.