Report: proposed community right to acquire 'abandoned' land in Scotland should be dropped

The Scottish parliament's Local Government and Regeneration Committee said that the use of the term "abandoned" in the Community Empowerment (Scotland) Bill was inappropriate and could lead to disputes between communities and landowners if not properly defined at the outset. The Scottish government should also consider whether additional regulation or guidance was needed to address the impact of the proposals on banks and potential investors, it said.

"Owners and communities are entitled to know, prior to the Bill becoming law, what is meant by the separate terms," the report said. "The Committee considers it is not appropriate to deal with the transfer of fundamental property rights through secondary legislation."

"The Committee is aware of the concerns raised in relation to land owned by an entity in administration or insolvency process and recommends that the Scottish government reflect on that and consider the need for further regulation or relevant guidance, and if necessary bring forward amendments at stage two," it said.

The report also recommended that the Scottish government give more thought to whether the equivalent of the 'Crichel Down Rules', a convention through which surplus land acquired by compulsory purchase is offered back to its former owners and their successors, should be included in the bill. This could potentially give former owners first refusal over a community body asset if the land was no longer used by the community for the intended purpose, or where a community body ceases to exist, the committee said.

Property law expert Alan Cook of Pinsent Masons, the law firm behind Out-Law.com, said that the committee was keen to see more clarity around a number of aspects of the draft legislation.

"I would therefore expect to see the bill being substantially revised as it continues its progress through the Scottish parliament," he said.

The Scottish parliament is expected to debate and vote on the general principles of the bill next week, according to the committee.

If passed in its current form, the Community Empowerment (Scotland) Bill would extend the right of community groups to buy land to all land across Scotland, irrespective of the size of settlement in which that land is located or whether the land is in an urban or rural area. Currently, the right only applies to those in rural settlements with 10,000 residents or fewer. As at present, the general right would only arise when the landowner wished to sell the property and communities would not be able to force landowners to sell.

Once in force, community groups would be able to register an interest in a piece of land with the Scottish ministers. That group would then be given the right to buy the property when the landowner wishes to sell ahead of any commercial arrangements that the landowner wanted to enter into. In its current form, the bill contains some safeguards which would prevent the community from registering an interest in the land if the landowner had already entered into a contract to sell the property or had granted an option to buy to a third party.

The supplementary right for community groups to buy abandoned or neglected land would apply where a willing seller could not be located and the land was being acquired for the purposes of sustainable development. Groups would apply to the Scottish ministers and, if the application is granted, would be required to pay the market value for that land. In its report, the committee said that it agreed with many of the groups with which it had consulted that this new right should be "a power of last resort, to be exercised only when other methods or negotiations had failed".

Commenting on the initial publication of the bill in June 2014, property law expert Alan Cook called for lawmakers to strike the "correct balance" during its parliamentary progress.

"The Scottish property industry will be engaging strongly in the progress of the bill through parliament," he said. "It will be important for these measures to strike the correct balance between the policy objective of strengthening the role of communities in influencing the stewardship of local property assets, on the one hand; and the right for property owners to be able to progress their own long-term asset management objectives on the other."