The right to buy land to further sustainable development: consultation

1. Excluded Land, Tenancies and Tenant’s Interests

Background and context

Sections 45-48 of the Land Reform (Scotland) Act 2016 define land for the purposes of Part 5, including what sort of land, tenancies and tenant's interests are eligible for the purposes of a community body making a Part 5 right to buy application.

There are regulation making powers under sections 46 and 48 that enable Scottish Ministers to make further definitions in relation to land and what is ineligible and what is eligible.

Section 46 of the 2016 Act excludes various sorts of land from being eligible and therefore subject to a Part 5 right to buy application. These include individuals' homes (unless occupied under a tenancy) and croft and Crown land (where owned by the Crown because it has no other identifiable owner). Section 46 also provides that Scottish Ministers can make regulations to exclude types of land pertaining to homes, and define other descriptions or classes of excluded land. Section 46 also enables Ministers to specify types of occupation or possession to be treated as a tenancy (which is then eligible).

The exclusion of homes is also a feature of Part 3A, but not of Part 2. The reason is that under Part 2, a house and any associated land can be bought only subject to the formal right to buy process where the owner of the house has put it on the market. The purchase of any property under Part 2 is not a form of compulsory purchase.

The Scottish Land Rights and Responsibilities Statement (the Statement) states that the Scottish Government's vison is for all people in Scotland to live in high-quality sustainable homes that they can afford and that meet their needs. As part of making this a reality, we need to increase the number of homes in Scotland and ensure the availability of a variety of tenure and ownership options which cater for the full range of people's needs.

Home owners and their families should feel secure in the possession and occupation of their homes and gardens, and this is the reason that homes and gardens are excluded under the Part 3A and Part 5 right to buy.

The rights of tenant are not changed if the land is sold to a new owner. Following the approval of a Part 5 application and the transfer of the land to a community, the obligations of a landlord under a tenancy will transfer to the community as the new landlord. When considering a Part 5 application, Scottish Ministers will take into account the views of any tenant of the land that have been submitted.

Regulation Making Powers

Section 46(2)(b)
Section 46(2)(e)
Section 46(3)(a)
Section 46(3)(b)
Section 48(1)(c)

Proposals

Subsection 46(2)(b)

Under subsection 46(2)(a), land on which there is a building or other structure which is an individual's home is excluded from Part 5, unless the building or structure is occupied by an individual under a tenancy.

Subsection 46(2)(b) provides that Scottish Ministers may by regulations specify land pertaining to land of the type mentioned in subsection 46(2)(a). This means that Scottish Ministers can specify certain kinds of land that are to be regarded as being part of an individual's home for the purposes of Part 5, and therefore not eligible for the purposes of a Part 5 right to buy application.

We propose that land which forms the curtilage of the individual's home is excluded from Part 5 Right, along with land that is used for one or more of the following purposes:

• the storage of possessions owned by the occupants of the individual's home that are used for the maintenance, upkeep or subsistence of the individual's home or its occupants;

• to store vehicles that are used by the occupants of the individual's home;

• for drainage, water supply or provision of services such as media or electricity for the individual's home;

• to grow food which is principally for the subsistence of the occupants of the individual's home;

• for activities including recreation and leisure activities which are incidental to the use of the individual's home;

• to keep pets belonging to the occupants of the individual's home;

• for businesses run by occupants of the individual's home;

• for access to the individual's home, if the land is owned by the same person that owns the home.

There similar to exclusions for Part 3A which can be found in section 8 of SSI 2018 No. 201, the Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Eligible Land, Regulators and Restrictions on Transfers and Dealing) (Scotland) Regulations 2018 (see: http://www.legislation.gov.uk/ssi/2018/201/pdfs/ssi_20180201_en.pdf).

The rationale for these exclusions is that they exclude not just land which is necessary for the function of providing a shelter from the elements, sleeping and eating, but land which supports all those activities normally associated with the full life of a home.

Question 1

Do you agree with our proposals for excluding from the Part 5 right to buy the sorts of land relating to a home outlined above?

Yes / No / Partially agree

If you wish, please provide further details.

Section 46(2)(e)

"excluded land means land of such other descriptions or classes as the Scottish Ministers may by regulations specify."

We propose that land that is used or held by a Minister of the Crown or government department within the meaning of paragraph 3 of Part 1 of schedule 5 of the Scotland Act 1998) is excluded. The reason for this is that such land is reserved. Such land is also excluded in relation to Part 3A.

This would mean that the following types of land would be excluded under Part 5:

• Land owned by a Minister of the Crown or a UK government department (but land belonging to the Scottish Government is not excluded).
• Land on which there is a building or structure which is a person's home (except where it is occupied under a tenancy).
• Land pertaining to land on which there is a person's home, such as Scottish Ministers may specify in the regulations and as noted above.
• Croft land
• Land owned by the Crown by virtue of its having its vested interest as bona vacantia in the Crown, or its having fallen to the Crown as ultimus haeres.

Question 2

Do you agree with the further types of land that are to be excluded from Part 5 right to buy?

Yes / No / Partially agree

If you wish, please provide further details, including details of any further sorts of land that you believe should be excluded from being bought under Part 5.

Section 46(3)(a)

"The Scottish Ministers may by regulations make provision about the buildings and structures which are, or are to be treated as, a home for the purposes of subsection (2)(a)"

This gives Scottish Ministers an opportunity to make regulations further defining the sort of structures or buildings that are to be treated as a home for the purpose of excluding them from any potential Part 5 right to buy application. The Scottish Government does not propose to use this power. This leaves a wide ranging, open definition of what a home could be, but the Scottish Government believes that this is appropriate, in order to include the different and diverse ways that people make their homes, and to support and promote social diversity, equalities, and the rights of people to choose their own mode of living.

It includes houses, flats and caravans, but could also include less common structures. Provided the home is a building or other structure and not occupied under a tenancy, it will be treated as a home.

Section 46(3)(b)

"The Scottish Ministers may by regulations make provision about the types of occupation and possession of land that are to be treated as a tenancy for the purposes of subsection (2)(a)"

As set out above, there are a range of restrictions on the sort of land that Part 5 community bodies may seek to buy using the Part 5 process. These include croft land, land owned by the Crown as a result of having no identifiable owner or because there is no traceable heir to it, land that is held or used by a Minister of the Crown or UK government department and land on which there is a home, as well as particular land pertaining to that home.

One important exception is where the home is occupied under a tenancy – such homes are not excluded from the Part 5 process, although the rights of tenants would be unchanged by a sale in the event that the land subject to the tenancy was sold.

We propose the following types of occupation and possession be treated as a tenancies for the purposes of Part 5:

• occupation or possession of tied accommodation;
• occupation or possession under a licence agreement that is in the nature of a tenancy;
• occupancy or possession of residential accommodation—

(i) in connection with an individual's employment or education; and

(ii) in a building or structure that is owned or occupied by the employer or education provider;

• temporary occupancy or possession offered, on a night-by-night basis, to individuals who are homeless persons; and
• occupancy or possession by a liferenter.

"Liferenter" means an individual who, by virtue of a liferent, has the right—

(a) to receive for life the benefits of the property; and

(b) to live in the building or structure, or on the land, for life;

"Tied accommodation" means accommodation provided to an individual by the individual's employer under a service occupancy agreement (that is, in return or part return for the performance by the individual of services under the employment agreement).

These are similar to the types of occupation and possession that are considered a tenancy for Part 3A. These can be found in regulation 7 of SSI 2018 No. 201, the Community Right to Buy (Abandoned, Neglected or Detrimental Land) (Eligible Land, Regulators and Restrictions on Transfers and Dealing) (Scotland) Regulations 2018.

Question 3

Do you agree with what we suggest constitutes a tenancy for the purposes of Part 5?

Yes / No / Partially agree

If you wish, please provide further details.

Section 48(1)(c)

Section 48 deals with a tenant's interests, which, subject to approval, may be acquired by a community body using Part 5. A community body can only apply to acquire a tenant's interest where it is connected with land that is being sought under Part 5.

Section 48 stipulates that a tenant's interest cannot be that of a croft tenancy or the tenancy of a dwelling house.

Section 48(1)(c) allows Scottish Ministers to make regulations specifying other kinds of tenancies that should not be eligible under Part 5 Right to Buy.

The Scottish Government does not believe it necessary to specify any further kinds of tenant's interests that should be excluded from Part 5 Right to Buy. In some circumstances the acquisition of a tenant's interest may be an essential part of a community's plans for sustainable development of the land, and the Scottish Government does not wish to unnecessarily curtail the sorts of tenants' interests that may be bought by a community under Part 5.

As with land, Scottish Ministers will consider each Part 5 application on its merit, and the case for transfer of any particular tenant's interest will be considered at this point, and assessed against the sustainable development conditions and procedural requirements in section 56, which include that the transfer must be in the public interest.

Question 4

Do you agree with the Scottish Government's decision not to exclude any further types of tenant's interests from purchase under Part 5?

Yes / No / Partially agree

If you wish, please provide further details.