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

5. Descriptions or classes of occupancy or possession which are, or are to be treated as, a tenancy - land which will be eligible for purchase by a Part 3A community body

Background

Section 97C(6)(b) of the 2003 Act allows Ministers to set out in regulations the descriptions or classes of occupancy or possession which are, or are to be treated as, a tenancy for the purposes of Part 3A of the Land Reform (Scotland) Act 2003.

The Scottish Government proposes that land on which there is a building or structure which is occupied by a person under a tenancy will be an exception to the exclusion of an individual's home from eligible land. In other words, it will be able to be the subject of a right to buy application.

Ministers have the power under section 97C(6)(b) of the 2003 Act to set out descriptions or classes of occupancy or possession which are, or are to be treated as, tenancies for the purposes of section 97C(5)(a). The exception to the exclusion of homes from the definition of eligible land covers all tenancies (including common law and statutory tenancies), regardless of whether they are set out in such regulations. However, they are considering using the power in section 97C(6)(a) to clarify that the classes of occupancy or possession listed are those which they consider are, or should be treated as, tenancies for the purposes of section 97C(5)(a) of Part 3A of the 2003 Act.

These are; tied accommodation; license agreement; university student, hospital staff accommodation etc., night-by-night temporary accommodation or tenancy on a temporary basis for homeless persons; and life-rent.

Question 3: Do you agree with the above descriptions or classes of occupancy or possession which are, or are to be treated as, a tenancy for the purposes of Part 3A of the Land Reform (Scotland) Act 2003?
Six respondents answered this question. Four agreed with the proposals and two disagreed.

Question 3a: If not, please explain
Two respondents answered this question.

Community Land Advisory Service did not agree with any of the types of tenancy. It gave reasons for its views. These mostly related to the complexities of tenancy agreements of any type. It also expressed concern that there could be unintended consequences of the definitions as proposed in the consultation.

The other respondent suggested that there was no need to cover licences. It stated that "Whether something is a properly a lease or a licence (i.e. some form of occupational right that lacks one of the essential element of a lease) is a question of fact and is not determined by what the name the contract is dressed up in."

Question 3b: Are there any descriptions or classes of occupancy or possession which are, or are to be treated as, a tenancy, that you believe should be added?
Three respondents answered this question. However, one simply stated that it did not have any descriptions or classes that should be added.

Scottish Land & Estates suggested that there needed to be some clarification on agricultural and crofting tenancies other than accommodation provided as part of employment.

Community Land Advisory Service suggested that consideration should be given to whether the situation in which someone is occupying a building as a home without the consent of the owner should be treated as a tenancy. It proposed that it should not.

Question 3c: Are there any descriptions or classes of occupancy or possession which are, or are to be treated as, a tenancy that you believe should be removed?
Two respondents answered this question. However, neither listed any types that should be removed. Instead, they stated that they had none, or referred to their previous answer.