Secondary legislation proposals for Part 3A of the Land Reform (Scotland) Act 2003: the community right to buy abandoned, neglected or detrimental land as introduced by the Community Empowerment (Scotland) Act 2015

10. Transfers or dealings not subject to these regulations

Background

The Scottish Government considers that a prohibition should not apply in the following circumstances:

• A transfer to implement or in pursuance of an order of court (other than an order under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970 or a decree in an action for the division and sale of land);
• A transfer between spouses or civil partners in pursuance of a written arrangement between them entered into at any time after they have ceased living together;
• A transfer to a statutory undertaker for the purposes of carrying on their undertaking;
• A transfer implementing the compulsory acquisition of the land under an enactment;
• A transfer by agreement of land which would have been acquired compulsorily under an enactment if an agreement had not been made;
• A transfer of land in pursuance of missives concluded for the sale of the land prior to the date the owner was notified of the Part 3A application;
• A transfer vesting the land in a person for the purpose of any enactment relating to sequestration, bankruptcy, winding up or incapacity or to the purposes for which judicial factors may be appointed; or
• A transfer of land in consequence of (1) the assumption or resignation or death of one or more of the partners in a firm, or, (2) the assumption or resignation or death of one or more of the trustees of a trust.

The Scottish Government also considers that the landowner or creditor may, if they wish and at their own risk, take steps short of transfer, subject to the suspension of rights provided by section 97N(3).

Question 8: Do you agree with the above list of transfers or dealings?
There were seven responses to this question. Four agreed with the proposals and three disagreed.

Question 8a: If not, please explain
There were four responses to this question. However, not all entirely disagreed with the proposals.

Community Land Advisory Service stated that the proposed exception for the case where missives have been concluded prior to the date of notification should be expressed more generally as a contract having been concluded.

Friends of Midmar Inn Community Company believed that these relaxed the prohibitions in place, which should not happen in any cases.

Highlands and Islands Enterprise agreed in general with the list of transfers or dealings but considered that it should more closely align with those in Section 40 of the Community Right to Buy.

The final respondent asked that there should also be an exception for mortis causa transfers.

Question 8b: Are there any that you believe should be added?
There were three responses to this question. However, one stated that it had nothing to add.

Community Land Advisory Service asked that the prohibition should not prevent the voluntary transfer from the owner to the Part 3A community body.

Highlands and Islands Enterprise commented that the Part 3A right to buy would be strengthened by the inclusion of the same anti-avoidance provisions that were in the Community Right to Buy in Part 2 of the Land Reform (Scotland) Act 2003.

Question 8c: Are there any that you believe should be removed?
There were two responses to this question. However, both simply stated that they had no recommendations.