Crofting, community, commons, and land use: development of common grazings, but on whose terms?

On 19 August, a crofting law case reached its conclusion at the Court of Session. The case (PDF) pitted some crofters against their crofting landlord. The clash related to similar but essentially rival plans for a renewable energy development on land that was traditionally shared by local crofters for grazing purposes.

The headline news is that these crofters’ attempt to use relatively new legislation to allow them to drive forward a wind turbine scheme on common grazings land in the face of an objection from the land owner has been unsuccessful. This defeat of their planned section 50B scheme – named after the relevant section of the crofting legislation – clears the field for the land owner to make use of a different legislative route for the development of those turbines as part of a wider renewable energy project.

Even that headline is quite complicated. With rural tenancy matters in Scotland there is often a lot to explain before you can have a complete picture. This blog post attempts to provide a quick snapshot of the various issues. Apologies in advance for either over- or under-explaining the various issues. Also, in full disclosure-mode, my definition of “quick snapshot” might not be shared by all readers. This post is something of a longread.

Crofting? What’s that again?

Let us begin at the beginning, or at least the beginning of statutory crofting law. Crofting is a system of rural landholding that exists on a legislative basis in the Highlands and Islands of Scotland, with its roots in 19th century land politics and struggles. It established a secure class of tenantry in the traditional Crofting Counties, giving tenant crofters very strong rights indeed against eviction and other courses of action that could otherwise be available to landlords of affected land, and providing a legal framework for the continuance of the crofting system as a whole. Crofts are essentially small farms/holdings that can be used by the corresponding crofter (in compliance with crofting law), without much interference by the ultimate land owner, provided the crofter is using the croft appropriately and complying with the standard conditions of crofting. The historical contribution of crofting to the retention of people in what glibly might be thought of as remote areas of Scotland should not be understated.

In the modern era, it would be fair to say that crofting law cases do not often reach the highest civil court in Scotland (not counting the UK Supreme Court in this hierarchical analysis). Crofting disputes that need to go “to law” will normally be dealt with by a specialist tribunal known as the Scottish Land Court. It is however possible for matters to go beyond the Scottish Land Court and on to the higher forum of the Court of Session in certain circumstances. This was such a dispute.

What was this case about?

This case that made it all the way to the Court of Session involved:

  • crofters from four crofting townships in Lewis;
  • the Crofting Commission; and
  • the Stornoway Trust, as owner of the various sites.

Also involved in the story, but not directly with this particular case, was an entity called Stornoway Wind Power (SWP). Companies House suggests the company with the name Stornoway Wind Power is dormant, but presumably a suitably renamed or stand-in company now acts as tenant. The Court of Session proceeded as if SWP was still on the scene, so I will run with that acronym here.

SWP is the tenant in a lease granted by the Stornoway Trust, for the purpose of developing a 36-turbine wind farm on the common grazings at the centre of this case and the common grazings of several other townships. Some crofters from four crofting townships devised different plans, each relating to areas within the aforementioned wider scheme, involving approximately 20 turbines. To say these plans were “different” is true to an extent, but to do so also glosses over the fact these turbines had identical proposed sites to the Stornoway Trust/SWP plans (see paragraph [9] of the Court of Session judgment). In fairness to the crofters, it might also be noted that the adoption of mirror sites had much to do with planning approval and indeed, I imagine, topography. It might also be noted that the planned crofter turbines were to be locally-owned. I will say no more about such matters here. In this post, I will try to avoid commenting on the merits of any scheme, whether relative to each other, whether compatible with each other, or in general. Those are questions for someone else.

I have mentioned quite a few personalities so far. Even trying to explain who these personalities are in simple terms, not to mention what common grazings are, requires a bit of care and attention. Here is a fuller explanation of the personalities involved in this litigation.

Who was involved?

The townships affected were: Melbost and Branahuie; Aignish; Sandwick and Sandwick East Street; and Sandwickhill North Street. These are all quite near Stornoway, which is the biggest town in the Western Isles, situated in the east of Lewis. Melbost is slightly east of Stornoway, where you will find the Drome, aka Stornoway Airport. Aignish is further east again, over the isthmus known as the Braigh and into Point. (I declare an interest, as a half-Rubhach. I have family connections to Point.) The other two townships are nearer “town”. The legislation that allowed crofters from these townships to get to court will be explained below. In the case at hand, these crofters were the appellants, appealing against an earlier decision of the Scottish Land Court.

Second billing in the court case went to the Crofting Commission. The modern Commission is a statutory body charged with looking after crofts and crofting as a system, in terms of the Crofters (Scotland) Act 1993 (as amended). That 1993 Act is the central pillar of modern crofting law. We will come back to that.

The final dramatis persona was the Stornoway Trust. The Trust is a community landowner that is almost one hundred years old, which owns in the region of 70,000 acres in and around Stornoway, including the peninsula of Point. The Trust was established by a trust deed in the 1920s when the then owner of Lewis, Lord Leverhulme, transferred land in Stornoway and nearby districts to the local community. The constitutional documents of the Trust make it accountable to the community – across a larger community that takes in the crofters who decided to bring this action and also others in the local area – and it has local elections to select its trustees. Someone at the Trust probably knows, or could find out, how many crofts the Trust has within its remit. That is not important for this post, but it will be a significant number. The community land owner status of the Trust is also not of any legal consequence for this post; crofting law does not differentiate between community and non-community landlords. It might, however, be useful background context to the situation at hand.

Common Grazings

Over the years, crofts have been organised into various townships, each of which will have an area of land that can be used by the crofters as a common resource. The crofts on the land of the Stornoway Trust – including the four townships at the centre of this case – follow this model. Such commons, known as common grazings, can be used by crofters from the relevant township.

Traditionally, usage would have been for grazing of animals, peat-cutting and related tasks, and perhaps thatch for roofing. The entitlements of the land owner as proprietor of the common grazing would remain, but be suitably hamstrung by the fact they could not do anything to undermine the entitlements of crofters.

Meanwhile, to avoid overuse or inequitable situations arising amongst the entitled crofters, these areas would be administered by local committees. To those traditional uses, a right was later introduced by statute in relation to the planting of trees on a common grazing, such that crofters would be able to go beyond the previously accepted uses.

In 2007, another, apparently broader, right was introduced. This allowed for other novel developments on a common grazing at the instigation of a local crofter. This right is contained in a new section 50B of the 1993 Act. It does not give crofters a completely free hand. First, such a scheme cannot be detrimental to the current use of the grazing or, more importantly for present purposes, the interests of the landowner. Then, when an application is made to the relevant committee, it must take the proposal forward (with suitable intimation to the owner) then organise a vote on the matter by local crofters. If the vote is in favour of the proposal, an application relating to the scheme is then made to the Crofting Commission. The legislation then sets out a number of things for the Commission to have regard to when an application is made (in section 58A), but as we shall see one of the issues at hand was whether you even needed to get to such a consideration of the factors listed in section 58A(7) if a scheme was indeed detrimental to land owner.

Another point should be noted at this stage. It is also possible for a crofting landlord, who it will be recalled is the ultimate owner of the land, to propose a development of the common grazing notwithstanding the fact that use is inconsistent with traditional usage as grazing, in terms of section 19A of the 1993 Act. Unsurprisingly, being a potentially drastic manoeuvre, such a landlord scheme requires the consent of the Land Court. That consent is also not automatic, and depends upon whether the development: a) is for a reasonable purpose; b) is not unfair [to one member of the crofting community or certain members]; c) provides fair recompense to the crofters; and d) benefits the community financially.

As alluded to above, there was such a section 19A scheme waiting in the wings here, with an application having been made in June 2017 for consent to use nine common grazings in Lewis for the proposed Stornoway Trust/SWP wind farm. (To be clear, the crofters’ scheme had also been on the go for some time as well, but I’ll put that to one side for the purposes of this blog post.) Those nine common grazings comprise the four common grazings under discussion in relation to this section 50B case and another five common grazings where no crofter schemes were brought forward. That application had been sisted pending this appeal. A “sist” is the Scots equivalent to a “stay” (i.e. a pause of proceedings); further detail about the Scots language is available on Wikipedia.

For completeness, three other stages of the section 19A proceedings at the Scottish Land Court prior to that most recent decision are digested online and can be found in the “Significant Decisions” area of the Land Court’s website. In chronological order, you can find:

  • the December 2017 decision, where the Land Court refused to completely stall the section 19A process for the various common grazings whilst the section 50B process ran contemporaneously;
  • the March 2019 decision, which starts to get the section 19A landlord scheme for development rolling (and also makes reference to Land Court orders of 11 May and 10 August 2018, where the number of crofter objectors to the owner’s scheme was whittled down from 231 to 118, by removing 113 of the original objectors for not having the status of a crofter entitled to object, in line with the precedent of Coigach Wind Power Limited v Achiltibuie Common Grazings Shareholders SLC/109/15, decision of 17 June 2016); and
  • the April 2019 decision, which sought to get a special case on a section 19A matter before the Court of Session (a matter that was put on hold until the merits of the overall section 19A case were decided, that decision turning on what Lord Minginish thought was “just and fair disposal” under the Scottish Land Court’s rules) and also allowing an uplift in expenses because the legal matters were pretty tricky (yeah, fair enough actually).

I think that covers all the relevant reported elements of the wider proceedings to date.

To introduce one final legal observation, although not directly relevant to this case, it should be recalled that crofters and those living in a crofting township can associate together to buy all of the land in the township that is under crofting tenure – namely rented crofts and the common grazing – plus certain additional land from a crofting landlord, all in terms of Part 3 of the Land Reform (Scotland) Act 2003. Such a transfer would give the new land owning entity – a crofting community body, accountable to the local community – a right to engage in schemes on a common grazing without trying to rely on section 50B, albeit an incoming crofting community purchaser would either need a section 19A scheme or other form of resumption to ultimately develop the land. That being said, such a transfer would only be able to take place after a local ballot (which would not just be of crofters with rights in a common grazing), where the acquisition was deemed by Scottish Ministers to be compatible with sustainable development and in the public interest, and with a suitable price being paid to the outgoing land owner. The fact that money changes hands in the 2003 Act scheme stands in contrast to a section 50B scheme, which makes no mention of compensation.

That just about sets the scene for our denouement at the Court of Session. Before turning to that, I will quickly note that it can be gleaned from those Scottish Land Court proceedings and the actions of the parties (in preparing and submitting schemes for development) that this overall dispute has been bubbling for a while. I blogged about the legals a little while ago, when I was still working at the University of Aberdeen. In 2019, Annabel Pinker of the James Hutton institute wrote a detailed blog post about the matter, bringing a more anthropological and energy-oriented approach to bear. Rather than revisit the issues raised in those posts here and make an already long post longer, I will simply link to them and use those posts to allow me to focus on this new judgment.

Oh yeah, the case

Over two thousand words into this blog post (sorry), it is now time to come back to this particular dispute.

This was a first attempt – or four first attempts – to use section 50B of the 1993 Act. The relevant grazings committee for each township followed the process in section 50B and, after local votes in favour of the proposal in question, each submitted a proposal to the Crofting Commission.

The Commission refused to agree to these proposals, notwithstanding a protracted period of not providing an answer, and also after allowing objections to be made by the Stornoway Trust comfortably after a time period that was mentioned in the legislation (albeit the legislation does allow a non-timeous objection to be accepted where there is a good reason it is late: section 58(5A)). This delay was rightly criticised from all directions. Be that as it may, decisions were issued, such that the Crofting Commission felt that the proposals could not clear the initial hurdle in section 50B, relating to detriment to the interests of the owner. That detriment was set out in the objections made by the Trust. I will not revisit this in great detail but in short (and as accepted by the Court of Session in paragraphs [67]-[68] of the judgment) the detriment included losing control of their own development and having to deal with renewable energy apparatus on their land (and this notwithstanding any financial offers the appellants made in relation to section 50B schemes).

There is scope for an appeal of a Crofting Commission decision in the 1993 Act, and an appeal was duly made to the Scottish Land Court. (It was actually four appeals, but like the Scottish Land Court I will take them together for ease.) Notwithstanding the aforementioned protracted delay, the Scottish Land Court refused the appeal in July 2019.

The case came before Lord Carloway (the Lord President, the highest-ranking judge at the Court of Session) and Lords Brodie and Malcolm. Fortunately, the settlement of Carloway is on the west of Lewis, so there was no need for the Lord President to recuse himself from hearing the case for reasons of intra-island politics.

For anyone who I have lost with my o’erlang back story, the timeline of the dispute (including the approach and reasoning of the Crofting Commission and proceedings at the Scottish Land Court) is all set out adeptly in the “Background” of the Court of Session judgment (beginning at paragraph [8]).

Turning to the legal analysis of the judgment, by way of initial reassurance to non-legally qualified and indeed to legally qualified readers, there are some segments that everyone except a seasoned crofting lawyer will need to concentrate on to make sense of. This is not to criticise the decision: the court does its very best to explain things simply, despite the sections of the legislation appearing to follow some kind of hexadecimal numbering system.

The other thing that I found when I read the judgment for this first time – and admittedly I say this having been notified of the outcome prior to my reading the judgment – is it became quite clear quite quickly that this might not end well for the crofters. The direction of travel was somewhat apparent when two Scottish Deputy Ministers at important stages of the parliamentary progress of the relevant legislation, the Crofting Reform etc Act 2007, were quoted without controversy; saying (and I paraphrase) “section 50B will not allow crofters to build wind farms/physical developments on common grazings”. On reading further in the judgment, it then becomes apparent that the court did not think section 50B was ambiguous in any event (meaning there was no need to look to Ministerial statements as an aid to statutory interpretation), but it is quite a marker to throw down at paragraph [4] of a 74 paragraph judgment.

In terms of what the Court of Session had to consider, the first two questions were: (1) is the formal validity of an application for approval something that can be determined by reference to detriment to the owner; and (2) does such an application require to be determined in accordance with the provisions of section 58A? The discussion about these matters was taken together, beginning at paragraph [50]. There, the following is offered as a springboard for further analysis.

The subject matter of this appeal draws into sharp focus the rights of a landowner and those of the crofter in the use of a common grazing. The context, of what is ultimately a straightforward question of statutory interpretation, is to be found in the protections afforded to crofters in the Crofters Holdings (Scotland) Act 1886 and the gradual extension of crofters’ rights in the legislation which has followed.

Those protections and the gradual extensions are then duly analysed, and paragraphs [50]-[58] form an excellent primer to the evolution of crofting law. Towards the end of paragraph [58], it is noted:

The significance of the progress of the legislation in this area is that it continues to recognise the fundamental principle that the landowner remains the person who has title to the common grazing land, albeit subject to the crofters’ rights to graze.

The judgment then sets out the changes made in the 2007 legislation about schemes for development, counterpointing the section 19A scheme (allowing an owner to use it for purposes inconsistent with grazing, with a need for consent from the Land Court) with section 50B. This is noted about when consent can be granted (paragraph [59]):

That consent will depend (s 19A(2)) upon whether the development: is for a reasonable purpose; is not unfair; provides compensation to the crofters as if the land had been resumed; and benefits the community financially. The existence of a scheme of compensation, when the crofters’ rights are being interfered with, is significant when it comes to analysing the provisions which enable the crofters to propose their own alternative uses.

Regarding those alternative use provisions for crofters, it was stated that the terms of section 50B were “clear”. It was then acknowledged that subsection (2) paragraph (b) sets out the prerequisite that the use must not be such as would be detrimental the interests of the owner, and “if there is detriment to the landowner, the proposal cannot subsequently be approved for implementation, as it requires to be, by the respondents (s 50B(6)).”

An argument put forward for the appellants that it was for the relevant grazings committee to somehow decide in relation to the detriment point did not fly with the court, that being viewed as rendering a committee, or rather the crofters voting on a proposal, auctor in rem suam (“a judge in their own cause”) (paragraph [61]).

The judgment then considers whether there was nevertheless a need for the Crofting Commission to reach a decision in line with procedures set out in section 58A. To this, it is worth quoting from near the beginning of paragraph [62] until the beginning of paragraph [63].

[62]… It is important to note that section 58A(1) states that it is “subject to any express provision made by this Act in respect of any category of case”. Although that proviso may have been unnecessary, given the normal tenets of statutory interpretation, it makes it clear that the requirement for the respondents to take into account the listed factors is subject to any express provision relating to specific applications. Such a provision is contained in section 50B(2) which, as already noted in relation to the common grazings, requires that any proposed use should not be detrimental to the interests of the landowner. In that way, a lack of detriment is a prerequisite to approval. If the landowner demonstrates detriment, the proposal must fail, even if it is in the interests of the crofting community and the public at large and would contribute to sustainable development. In these circumstances, in the event of an objection based on detriment, the respondents are entitled to assess that matter before the application proceeds further. If Parliament had intended that all applications were to be dealt with by carrying out the balancing exercise, which is anticipated by the list of factors in section 58A(7), there would have been no need to introduce, in the same amending legislation, section 50B(2).

[63] Although there is no ambiguity in the legislation, had here been any doubt, the ministerial statements… make it clear that the absence of detriment to the landowner is a necessary condition for approval.

In a suitably belt and braces fashion, the relevant statements from Stage 2 and Stage 3 of the legislative process are then set out, before concluding (at the end of paragraph [64]) that, “Proceeding to consider the listed factors under section 58A(7), once a finding of detriment is made, could serve no useful purpose. It follows that the court agrees with the Land Court that the [Crofting Commission] did not err in any respect in the procedure which they adopted.

Those matters take up the lion’s share of the Court’s “Decision”, but there were some other points covered and I will detail these quickly. The Court addressed the question of whether a prospective commercial enterprise of the landowner is a relevant “interest” in terms of section 50B(2), but first noted the non-crofting law point that decisions relating to facts will not normally be interfered with by an appeal tribunal unless it can be demonstrated that there has been in a mistake in law rather than in an assessment of fact.

Here, I am going to quote an extract, not really for a legal point, but more for the barbed comment at the end that might serve as a judicial exhortation to get our energy infrastructure in order:

In the event of obtaining the relevant [planning] permission and [section 19A] consent, the interested parties would have the ability to construct a wind farm which they might anticipate would generate significant electricity and, in all probability, a substantial profit, at least if the inter-connector is ever built across the Minch.

Inter-connector scarcity aside, this enterprise was an interest, and the appeal court did not interfere with this matter. Next, as to whether the Crofting Commission was entitled to find a detriment, again this was something that the appeal court did not interfere with, noting “it would only be on the basis that there was no material upon which that finding could have been made that the court could intervene.

Lastly was a point about section 58A, relating to the decision-making process of the Commission. This would normally only allow 28 days for an objection to be made by the owner after public notification of an application to the Commission, but as noted above in terms of subsection (5A) “the Commission may accept an objection submitted after the end of the 28-day period if they consider there is a good reason why the objection is late.

This bit of the judgment is perhaps not as clear as it might have been, but it is fair to say that the time-period for the Stornoway Trust to whinge on a clear statutory basis had sailed past. (There is some discussion in the case about the fact the objections were out of time notwithstanding the Crofting Commission’s lack of communication with the land owner.) Nevertheless, the objections were accepted. Earlier in proceedings, the Scottish Land Court did take a swipe at the circumstances that had developed, but it did not see fit to interfere to the extent of not allowing the acceptance of the objections. Neither did the Court of Session, as (similarly to the other issues just mentioned) the acceptance of circumstances as good reasons was treated as something that is not normally for an appeal court, unless there was (with reference to the case of Wordie Property Co v Secretary of State for Scotland 1984 SLT 345) a material error of law, a situation where irrelevant considerations were taken into account or relevant and material considerations were excluded, no proper basis in fact to support the decision, or the decision was so unreasonable that it should never have been reached. At paragraph [71], it was noted that grounds advanced by the appellants “fall far short of meeting this test”. There is perhaps some discussion to be had about the status of the late objection, but for present purposes I will leave it at that.

Postscript

With that final throw of the dice failing, so too did the appeal. The parameters of section 50B are now a little clearer, at least at the upper end in terms of what cannot be achieved with it. For the “Gang of Four”, as described in Annabel Pinker’s post, it is now for them to look to the section 19A process to find some way of engaging with that, or find a way of progressing things that does not involved section 50B. A crofting community buyout is theoretically possible, but (for reasons set out in my earlier post) seems unlikely.

Normally at this stage in a case comment I would offer commentary of some sort. The Court of Session has stolen my thunder somewhat and offered a postscript of its own, at paragraph [73] I will take the liberty of copying it in full here.

As a postscript, it could be said that this case does identify general concerns about the development of what might be underused croft land, including common grazing. The needs of the crofting communities are not identical to those in the late Victorian era. As with other applications to the respondents [the Crofting Commission], it could be left to them to decide upon the appropriateness of the development, having regard to everyone’s interests, in terms of the factors in section 58A(7) of the 1993 Act. That is not permitted under the current legislation. Such a legislative development would require section 50B(2)(b) to be repealed. Since the landowners’ property rights would almost inevitably be interfered with by the superimposition of an alternative development, the need, in terms of Article 1 Protocol 1 to the European Convention (the right to peaceful enjoyment of possessions), for the incorporation in any amending legislation of a scheme for compensating the landowner for any loss would become apparent.

In terms of reaction to the decision, even though the judgment went against them that postscript has been endorsed by representatives of the four crofting townships.

The overall judgment has, unsurprisingly, been welcomed by the Stornoway Trust.

Now I will offer more of my own conclusion. Back in that earlier post, I stated:

There are some big questions here and in turn they raise some fascinating questions about who the community actually is: local crofters acting through a common grazings committee; crofters and non-crofters in a township; or the community landowner which owns the land where these and a number of other townships are positioned.

That observation stands. There are also wider interests for those who do not live in Lewis, and I do not just mean someone like me who likes to visit Stornoway and Point for family or sentimental reasons. Wider society needs to address challenges relating to energy, and plonking wind turbines on four common grazings when it seems apparent the people living near there might like things to be done a little differently ought to make people who do not live there but could benefit from the energy produced think carefully. That is a bigger question of energy politics and production though.

Next, a property law point. Article 1 of the First Protocol to the European Convention on Human Rights is mentioned in the judgment. It is surely correct that it was. Purely in human rights law terms, it would have been quite an imposition on the land owner if section 50B allowed it to be usurped without clear compensation, even if in this instance compensation was being offered. The Court of Session was obviously aware of this, in terms of its comparisons of section 50B with: a) section 19A; and b) the crofting community right to buy in the Land Reform (Scotland) Act 2003. It would have been difficult for the court to interpret section 50B in a way that left the land owner’s peaceful enjoyment of a possession – subject to crofting law as it is – so ousted.

Finally, a practical point. The closing stages of this dispute had to be navigated during the new normal of Covid-19. This meant elements of the proceedings were undertaken remotely. For my part, I was actually invited to attend a remote hearing and unfortunately I missed it, owing to another online (teaching) commitment, but it was nice to have the prospect of attending without the need to make a trip to Parliament House. The judgment itself is well put together, so props to all involved with it. There are a couple of tiny issues though: the Commission is called “THE CROFING COMMISSION” (missing a T) in the heading, and in paragraph [66] the respondents’ real and substantial commercial development in prospect is mentioned when presumably the Court meant the interested parties (these being the Crofting Commission and the Stornoway Trust respectively). I almost feel bad for mentioning those infelicities as something of a conclusion. Like I say, everyone involved in the litigation did well to get it to a conclusion. Now we wait for the section 19A owner scheme for development to trundle on. There may even be further litigation. If so, that is for another day, and maybe for another blog post.

Thanks to those who had a look over this blog post for me, who I won’t name to protect the innocent. Feel free to comment below if you want to identify yourself or add to my analysis in public. Any errors are mine, and I’m conscious that disclaimer follows a haughty highlighting of some minor errors, so no doubt I’ve set myself up deliciously for a fall.

Point

On Point: A photo taken from between Swordale and Aignish, which I snapped on a walk in 2019.

 

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Some thoughts on responsible access to land and wild camping in a less locked down Scotland

You don’t need to look too hard to find stories about people messing up the countryside this summer. Here’s one for reference just in case you don’t believe me. There was also coverage of the issue on the BBC Scotland news programme The Nine on 30 July. You can catch Isla Todd’s report, with a bit of input from me, from roughly the 43 minute mark on the iPlayer (until 6 August). I’m the guy who needs a beard trim wearing a Lady Hale T-shirt; a T-shirt which unfortunately got cut out of the shot (sorry, Brenda).

As is inevitably the case with features like this, only a snippet of my verbose contribution was used. Anyone interested in my more developed thoughts on the topic can now find them in a blog post I wrote for the Strathclyde Law Blog, which is available here. That sets out some of the background and (I hope) explains the legal basis of the right of responsible access (aka the right to roam, from Part 1 of the Land Reform (Scotland) Act 2003) including how camping is treated under that law and the Scottish Outdoor Access Code.

For information, the photo in that post was taken by my friend Gary after we had camped overnight near Corrour Bothy (at the Lairig Ghru). I should stress that we annoyed no locals and left no trace of our being there, honest.

Strathclyde Law Blog post

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“Rights to buy: the new addition”, a piece for the Journal of the Law Society of Scotland

A blog (sign)post, to point to an article by me for the Journal of the Law Society of Scotland. This is a “property briefing” on the right to buy land to further sustainable development. That right flows from Part 5 of the Land Reform (Scotland) Act 2016, which came into force in April 2020.

I’ll say no more of substance about the new right to buy in this post and instead leave you to read the article itself. For those who don’t normally read the Journal, I’ll briefly note here that owing to the target audience of the Journal my piece is aimed at practising solicitors, although I hope it will be fairly accessible to keen followers of Scottish land reform. Thanks as ever to Peter Nicholson, the editor, for curtailing my verbosity, and to Dr Jill Robbie of the University of Glasgow for her comments on a draft of the article.

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Scottish Landlord and Tenant Law and the Coronavirus (Scotland) (No.2) Act

Here comes another blog post that does not have a hidden message of any sort. It’s just about the most recent coronavirus statute passed by the Scottish Parliament, with a particular focus on landlord and tenant law. If this is not your bag, please tune to a different station now.

The Coronavirus (Scotland) (No. 2) Act 2020 received the Monarch’s seal of approval on 26 May 2020 and came into force on 27 May 2020. It does not have as drastic an effect on the private rented sector as the previous Coronavirus Act: those changes are digested in an earlier blog post here. That being the case, it does have some important provisions in Schedule 1 (entitled “Protection of the Individual”). From a landlord and tenant law perspective, the changes in this schedule make it much easier for a student renting in bespoke student accommodation to bring her tenancy to an end. Those changes are the main focus of this blog post.

Schedule 1 of the No.2 Act also provides the foundation for a pre-action tickbox that private sector landlords must comply with prior to any eviction proceedings that might happen further down the line (it being recalled the First-tier Tribunal (Housing and Property Chamber) is not fully open for eviction business as things stand in any event). Those pre-action requirements will need further legislation (by way of regulations), so it is too early to comment on these incipient measures in detail. All that can be said as a result of the foundations laid in the No.2 Act is that the regulations will make provision about “information to be provided by a landlord to a tenant including information about the terms of the tenancy, rent arrears and any other outstanding financial obligation under the tenancy” and “steps to be taken by a landlord with a view to seeking to agree arrangements with a tenant for payment of future rent, rent arrears and any other outstanding financial obligation under the tenancy“.

Also worth a mention is Schedule 4 of the 2020 Act, which will be relevant to some landlords who have let (or are letting) to students. In such a situation, neither landlord nor tenant had to worry about council tax (owing to students being exempt, and this being a tax that falls on the occupier). Now, where a dwelling that had a student occupier becomes unoccupied for a reason relating to coronavirus on or after 17 March 2020 and remains unoccupied, council tax liability does not instantly spring into being for the owner.

Enough about that other stuff. As noted, my primary focus in this post is on the changes that apply to rented student accommodation in Scotland.

Student accommodation has been offered for rent by UK educational institutions for quite some time. University halls and dorms and the like have been traditionally exempt from the Rent Acts, and this exemption was actually a result of some universities with attractive accommodation seeking to ensure students did not stay on in such accommodation after graduation. As a result, campus accommodation was given special status. This did not, however, apply to standard private sector tenancies of students. Rather, it was limited to certain approved institutions of universities, colleges and a few special bodies like the Royal College of Surgeons.

These bodies continue to be outwith the private residential tenancy (PRT) regime that now prevails in Scotland, in terms of the Private Housing (Tenancies) (Scotland) Act 2016. They are listed in paragraph 5(2) of Schedule 1 of the 2016 Act. That schedule also lists various other tenancies that are not caught by the 2016 Act (such as holiday lets, agricultural land, social housing, accommodation for asylum seekers and, after a recent amendment to the law, accommodation provided to veterans or care leavers by charities).

During the consultation period about the provision of security of tenure for the PRT system that Scotland was eventually to introduce in the 2016 Act, it was pointed out and indeed felt that not providing for non-educational landlords of purpose built [commercial] student accommodation could lead to difficulties. Anecdotally, I can confirm that such landlords have played an important role in Scottish university cities, including when universities themselves have lacked sufficient accommodation for a new [residential] student intake, so it would be unrealistic not to acknowledge them as part of the housing mix that students might have resort to. The provision for such landlords was to carve them out of the security of tenure-bearing PRT, making it relatively easier to regain possession of such property from student tenants at a certain time. Whilst security of tenure is a policy that can be (and was) pursued for some residential tenants, the need for such student accommodation providers to programme the availability of their properties and having certainty as to when they would regain possession was preferred in this specific context.

The 2016 Act did this by expanded on the traditional groups of landlords exempted from the old assured and protected tenancy regimes in the residential sector. A new concept was created called the “institutional provider of student accommodation”. Where a landlord lets properties in the same building and these include at least 30 bedrooms and the landlord uses the other properties predominantly for the purpose of housing students, they are exempted from the PRT regime. There is one further requirement though. In addition, planning permission must have been granted on the basis that the let property would be used predominantly for housing students (Sch.1 para.5(3)(a)). (More on that planning provision point below.) Any landlord who has a portfolio of individual properties that happen to have student tenants in them will not be treated as exempt from the PRT regime, but a landlord with 30 or more properties grouped together, as can be seen in all of Scotland’s university cities, can be covered by the exemption in Schedule 1 of the 2016 Act.

Fast forward to 2020. Suddenly COVID-19 has changed everything, and my guess is many such landlords are in no way worried about getting tenants out of buildings that, in planning permission and marketing terms, are for student residences. Instead, the self-interested landlord’s focus in the current market is keeping tenants in. From the perspective of students though, one would imagine staying near a campus that is closed when many of their fellow students have gone home and the attractions of a university city are curtailed owing to public health measures, being held to a contract will not be an attractive prospect. That is where this new law comes to the fore.

The law now says a student (that is to say, a person studying at one of the educational institutions listed in the 2016 Act) who is in a student residential tenancy (i.e. not a PRT – a student with a PRT can get out quite quickly under that regime anyway) may “for a reason relating to coronavirus” bring to an end that tenancy at some point in the future no less than one week or four weeks away; those time periods are explained below.

What is meant by the phrase “for a reason relating to coronavirus” is not defined, although the phrase crops up regularly in both Coronavirus Acts. Later in the No.2 Act there is an example given in a different context: “for a reason relating to coronavirus (such as, but not limited to, inability to work in multiple or linked workplaces)”. It is difficult to imagine this coronavirus reason being construed narrowly if a student’s university/college is not physically operating, so basically a student tenant now has clear exit from such a tenancy.

The exit door is opened by a student simply serving a notice on her landlord in writing. That notice needs to state when she plans to leave, with that date being at least seven or twenty-eight days in the future depending on the student’s circumstances. The shorter seven-day notice to leave period applies for students who have already entered into a student residential tenancy agreement and have occupied the property at any time. The longer 28-day notice to leave period is for students who a) have already entered into a student residential tenancy but have not yet occupied the property, and b) have taken a new student residential tenancy since the law changed.

What should we make of these changes? In the short-term, it would seem quite a hardship on individual students, who may have lost income they would normally get through part-time work in places like bars, restaurants, sports stadia or cinemas, to continue to pay rent for a place in a city when (for some) they might be able to move back to the family home or maybe even move in with a partner during the ongoing coronavirus restrictions; in fact, it’s entirely possible such tenants flitted when it was safe to do (assuming it was safe) before the UK’s formal lockdown began a few months ago, given most Scottish universities stopped physical delivery of classes before actual restrictions began. Longer-term? Don’t get me wrong, it is difficult to think long-term about anything at the moment, but as time progresses the focus – rightly – will move to the owners of such properties who will understandably be quite keen to get some kind of income or use from them, perhaps by re-purposing some or all of what was student accommodation into another function. In non-coronavirus times I might have ventured an opinion on planning law here and whether it would be possible to do that in the face of a planning regime that says (it will be recalled) that the properties in question have to be used as student accommodation. I’ll stop myself in case I miss something, and indeed I’ll stop this blog post as it is already longer than I hoped it would be. Do tune in for the next edition of Scottish landlord and tenant law in a time of coronavirus at some uncertain point in the future.


The background in this blog post about student lets being outwith private rental sector regulation is modelled on Peter Robson’s annotations to the 2016 Act in W. Green’s Scottish Landlord and Tenant Legislation, a collection of annotated statutes that I am the general editor of.

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SULCN 2020 – a reflection on a reflective webinar

As explained in an earlier blog post, the annual event of the Scottish University Law Clinic Network (SULCN) moved online this year. I was chief Zoomer; I mean that as a Scottish joke, rather than a powerplay about how amazing my techie skills are, but for clarity I was indeed chairing the event on the day. Hat-tip to the University of Strathclyde for providing the apparatus for me to do that.

The event was not recorded. That said, a Twitter thread of the day can be found here. I have not much to add to those tweets here, save to note (again) my thanks to the three discussants – Eamon Keane, Hannah Cosgrove and Ryan Whelan – and the new President of the Law Society of Scotland, Amanda Millar, for her words on behalf of the Society and its continuing support of the network.

Thanks also to the students at Strathclyde Law Clinic, in particular Jamie Anderson and Kirstie Webb, for helping to publicise the event and looking after the Eventbrite page. They also participated in the discussion, as did Kate Laverty from the Clinic (explaining its ongoing work during the lockdown). For information, Kirstie’s experience of working from home during lockdown is detailed here.

I am going to give the final words of this blog post to Rebecca Samaras of the University of Edinburgh and the Chair of SULCN. She was unable to participate in the webinar, but was able to get a message to Eamon for him to read out. I thought this would be a suitable way to finish this blog post and I have her permission to share those words. Here they are.

Last night I found an email from Hannah Cosgrove, Eamon Keane and Ryan Whelan. It was dated December 2011. It was a proposal for a Scotland-wide law clinic group to be formed and asking if Edinburgh FLAC would be interested in discussing the proposal further.

The SULCN was formally launched the following year along with, at that time, UWS and its membership has grown year on year.

When I received that first email from our student founders, I was (and still am) full of admiration for their passion and drive to want to connect our law clinics for the reasons you will have heard today.

All I can say on behalf of everyone connected with SULCN is thank you Hannah, thank you, Eamon and thank you, Ryan. But now, it is up to you our current and future students to drive their vision forward and with all that you have heard today in mind, get involved. Get involved with your clinics, get involved with your universities and get involved with your communities. You are the future of the legal profession and you have the ability to inform the changes needed to ensure that the rule of law, something we are all committed to, is ensured.

Finally, some thank yous are definitely in order. First, to Strathclyde Law Clinic, especially, Jamie, Kirstie and Kate for pulling this session together so quickly and so well. It just shows what is achievable when you really want to do something.

Second, thanks also to Malcolm who, like me and Donald Nicolson were lucky to be involved with these tremendous students (as they were in 2012) from the start, for being our excellent technological expert today and for bringing SULCN into the virtual age!

Finally, thanks to all of you for registering and showing interest in all that we, your law clinics and your profession are doing. We hope you have enjoyed hearing from everyone today and they have incentivised you to go further and get involved. This is your Network.

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Scottish University Law Clinic Network Webinar 2020 – 27 May at Strathclyde (sort of)

The ninth annual event of the Scottish University Law Clinic Network (SULCN) will take place online on Wednesday 27 May 2020.

Details of and registration for the free event can be found on this Eventbrite page.

Thanks to the student volunteers at Strathclyde Law Clinic, particularly Jamie Anderson and Kirstie Webb, and to Kate Laverty at the Clinic for their roles in pulling this event together. Hat-tip also to Rebecca Samaras, the current Chair of SULCN, who will be online at the webinar and able to field any questions about the network that might arise.  Thanks also to the University of Strathclyde for hosting the event, or rather signing up for the Zoom infrastructure to allow the event to take place. Finally, thanks to Eamon Keane, Hannah Cosgrove and Ryan Whelan for volunteering to participate in this event, or at least not complaining too vociferously when I volunteered them for this event.

SULCN

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Strathclyde Non-Law Review

In these locked down times, it seems more important than ever to try to stay in touch with people. For those involved in higher education, as a bare minimum you want to keep classes and, where relevant, assessments rolling. I think the team at Strathclyde Law School and the wider uni have managed to just about do that. Props to all the support and IT staff who have played a part in this process, and thanks to the students for their forbearance and adaptability throughout.

Higher education is not just about teaching and exams though. It is also about something more, such as being part of a community, and having an ethos. With that in mind, my colleague Michael Randall has assumed an unofficial role of chief morale officer for the Law School. As part of this he instigated a virtual dissertation hand-in ceremony for our final year students (Twitter thread here; other platforms are also available). Another key strand of this is the online Strathclyde Non-Law Review. On its homepage, it is described as…

…a place where staff and students share their reviews and recommendations of books, films, TV shows, music and podcasts for others, to try and find something new to discover

I’ve offered a couple of posts. The first of these was a re-hash of an earlier piece by me on perfect songs, so there is nothing new there for the hardcore basedrones fans. My more recent post is about fitba; more specifically, the Sunderland ‘Til I Die docuseries.

The Strathclyde Non-Law Review is, of course, mainly aimed at Strathclyders, but you don’t need to log-in to access it or anything like that. As such, if anyone is seeking a displacement activity, you can now read something by me about a displacement activity, which I myself wrote as a displacement activity. You can also lose yourself in Professor Kenneth Norrie’s garden, an activity I highly recommend.

Strathclyde Non-Law Review

 

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Land Registration in Scotland and Coronavirus

The COVID-19 pandemic and the unprecedented in living memory UK public health measures that have followed in its wake have caused ripples in a variety of regulatory areas. I have already blogged about two such areas, namely landlord and tenant law (in the private rental sector) and access to land. If I was so inclined, I could say yet more about those areas: for landlord and tenant law, I could scrutinise the reform to the commercial letting sector (see paragraph 6 of Schedule 7 of the Coronavirus (Scotland) Act 2020 and one firm’s analysis of this) and the possible reform of the amnesty for tenant improvements in the agricultural sector; for outdoor access, I could highlight that the situation has been further developed by way of a useful statement by the Scottish Government on what responsible access means in the current situation and acknowledge that statement has the backing of a wide range of interest groups. It is time to move on to another topic though. This blog post is about land registration.

How to become an owner of land: registration

As everyone who has studied Scots property law knows (I hope), title to land in Scotland is predicated on registration of relevant paperwork in a public register. This means that the person who is the owner is able to substantiate that status through documents that other people can check. I mentioned “paperwork” there, and a certain emphasis might have been put on the first five letters of paperwork…“. I will come back to that. On the general principle though, should you wish to become owner of a parcel of land and you do not register yourself as owner of that land by lodging a document called a disposition with Registers of Scotland, you will not become the owner of that land. This has been the law for a few years, but it is now embodied in section 50 of the Land Registration etc. (Scotland) Act 2012.

Some of you may recall land registration was a hot topic on this blog a few years ago, when it was discussed in the context of souvenir plots. That was an idiosyncratic legal issue which led to a “debate” that all got a bit out of hand, although it does serve to illustrate that no registration means no real right of ownership. “Real right” in this context has a specific meaning, namely a right that the world at large has to recognise and respect; real rights can be contrasted with “personal rights” that exist between individuals (such as a debt). Generally speaking, a personal right can be created without the same publicity requirements as a real right requires. To acquire ownership of land in Scotland, the publicity that is needed is registration. That registration gives the right of ownership “real” effect. As a reminder, the issue in that context was a specific bit of Scots law that said teeny plots of land with no practical utility cannot be registered; no registration, no real right.

In more standard land transactions – so buying an actual dwellinghouse rather than a square foot of land – there will be a process when the land is marketed, an offer (or offers) will be made by a prospective buyer (or prospective buyers), then the seller and the (successful) buyer will conclude a contract for the sale of that land. In Scotland this contractual stage is called “concluding missives”. Title to the land does not transfer at this stage, and money does not normally change hands. The parties will agree a mutually suitable date of entry, and it is on this day that money will change hands, in exchange for a disposition. Even at this stage – and perhaps surprisingly – the buyer does not become the owner. This can be explained and rationalised somewhat by thinking about the position of third parties – they would not know about this private arrangement before some kind of publicity is effected. It does seem to put the buyer in a dangerous position though – you are not in law the owner, even though you have paid the price. What Scottish land law does to protect a buyer though is provide a device called the “advance notice“. This gives the buyer 35 days of priority to allow them more than a fair crack of the whip to register their disposition and become owner, restricting the potential pitfall of a devious seller re-selling the property to anyone else.

The transition from the (old) Sasine Register to the (new) Land Register

One other bit of background might be useful at this stage. In 1979 Scotland legislated for a new register of interests in land, called the Land Register. The introduction of the Land Register did not change the need to register a land transaction as a necessary step to make that arrangement “real”. The new Land Register was itself reformed in 2012. It is not necessary to go into all the details of that introduction and subsequent reform here, but essentially the main thrust for the creation of the Land Register was to introduce a modern, map-based register backed by a “state guarantee” regarding the information that was on the register in many circumstances. The Land Register has incrementally been replacing the older register that served as a repository of deeds relating to land from the 17th century onwards, that older register being known as the General Register of Sasines.

The incremental nature of the introduction of the new Land Register means land information in the Sasine Register did not immediately flip to the newer register. Rather, it happened on the next eligible dealing that affected a plot of land.

A dealing with a property that has not yet migrated to the new register from the old register (such as a sale, the grant of a lease over twenty years in duration, or the grant of a security right) will trigger registration in the new register. The transition to this new Land Register continues on an ongoing basis. The 2018/19 Registers of Scotland Annual Report (published September 2019) showed that 34% of Scotland’s land area and 67% of its “title units” (~1.8 million) were on the new Land Register. (The smaller percentage as relates to land area is a result of bigger, rural estates tending not to churn as much as smaller urban properties.) On either of those measures, there is still a fair amount of Scotland that is yet to migrate to the new Land Register. There is a target that migration to the new register will be complete by 2024. This 2024 target has seemed a bit optimistic for a little while now, and with COVID-19 it suddenly seems very optimistic. That is a matter for another piece. For present purposes though, all that needs to be noted is that the moment when a non-Land Registered property migrates to the new register – a so-called “first registration” – necessitates a bit more in the way of legwork done by the team at Registers of Scotland, especially in terms of capturing the boundaries of the property on the Ordnance Survey map.

COVID-19 and Land Registration

That’s enough property law theory and stuff for now. How does this relate to COVID-19?

See those public health measures I mentioned above, and the whole social distancing that ensued? In simplistic terms, the public health measures played havoc with the processes that Registers of Scotland had been following before the music stopped. This presented a problem. Remember: no registration, no real right.

Now, some changes relating to registered property in Scotland can be effected electronically – notably digital discharges of obsolete security rights (i.e. mortgages that have been paid off). This is a relatively easy process to capture without screeds of documentation: it can only operate in relation to a landholding that is already on the Land Register and a related ownership interest that is already embodied in the register, so removing a security right is a simple process. Presumably “DDS” can be effected by those “WFH” without much gnashing off teeth, or certainly no more gnashing of teeth than other work”places” throughout the UK are facing as they move to working from home.

It has been envisaged that other transactions relating to land might be captured electronically as well. For better or for worse, the processes for those transactions have not fully developed. Also, where a particular piece of land is either a) migrating from the old register to the new register, or b) a transfer of a part of property that is already on the Land Register, more care and attention is needed to effect that transaction; that is to say, you cannot simply replace the old owner’s name with the new owner’s name on an existing title sheet, you need to create a new title sheet for this new title unit.

When Registers of Scotland closed its doors on 24 March 2020, as was first highlighted to me via this tweet by the journalist and writer Gabriella Bennett, people were scrabbling for a solution that might allow transactions to be finalised and allow purchasers a pathway to becoming the legal owner of land. Those transactions that were (through no fault of the buyer or the seller) just a little bit more complicated (owing to the dealing not involving an existing title unit) were a particular issue. A flavour of this can be seen in the Twitter brainstorming I had with some other legal academics on 24 March following on from that tweet, and you can also see some reaction from Scottish Legal News and a comprehensive (and updated as the situation unravelled) post at The Time Blawg.

The Time Blawg post has a flavour of just how exasperated people felt about how this situation came to pass. I am not here to add to the pile-on but, with due respect to the team at Registers of Scotland who were no doubt caught by an unprecedented situation, some of the exasperation seems understandable. The Law Society of Scotland – the professional body for Scottish solicitors – was worried that its members could be caught up in the crossfire, and its initial advice was basically to tell solicitors not to “settle” any transactions. More developed guidance was made available by the Law Society of Scotland on 26 March (one commenter on my earlier Coronavirus blog post on a different issue was not enamoured with that guidance). All of this and more is explained in an excellent piece for the Scottish Parliament Information Centre. I suppose the one thing that might be added to that SPICe Spotlight piece is that in a domestic setting a solicitor often acts for the buyer and the buyer’s mortgage lender, meaning that solicitors and the Law Society of Scotland would have been worried about a two pronged attack if it was impossible to establish either ownership or a security right.

The SPICe Spotlight piece also shines a light on one potential workaround, namely extending an advance notice to try to give a wider time period of protection. The Time Blawg details an instance of that happening. Such a workaround though was very much trying to make the best of a bad situation (as was my own suggestion on Twitter of trying to fall back on the dubious protection of a trust clause whereby the seller would declare that the property was being held in trust for the buyer until ownership was transferred, these trust clauses being dubious for reasons highlighted by Scott Wortley).

Moving on from this world of workarounds, we now have some legislation on the matter. This is found in the hyper-miscellaneous schedule at the very end of the Coronavirus (Scotland) Act 2020. The land registration provisions are nestled between reforms to planning permissions and the Anatomy Act 1984.

The first set of reforms – spanning paragraphs 11-14 – provide for electronic delivery of a copy of a deed rather than the original itself as part of the registration process. This reform is made by way of (temporary) amendment to Section 21 of the 2012 Act. Incidentally, props to the team at legislation.gov.uk for capturing this change so quickly. The change means that a document can now be sent as an attachment to an email or by some other recognised electronic means.

The second set of reforms – found in paragraphs 15-19 – relate to advance notices. Any advance notice that was in play the day the music stopped – 24 March 2020 – will now subsist for an indefinite period. The notice will now subsist until ten days after the application record of the Land Register reopens, rather than stopping after the usual 35 days. Meanwhile, any new – digital – advance notice will now subsist for one of two periods, depending on which is most favourable to the person seeking the advance notice’s protection. Such a notice will last until the later of: a) the date the application record of the Land Register reopens, plus ten days; or b) the usual 35 days.

Conclusion?

What now? Registers of Scotland is continuing to try to make this new and temporary world work, and credit is due for that. Digital advance notices were the immediate priority, and the system for them went live on 7 April. This was one day later than was indicated in an earlier blog post by the Keeper, but I think we can forgive that. An update posted on this Bank Holiday Monday informs us that 20 digital submissions were made over the weekend.

One suspects this initial phase will be the most important hurdle to clear, given the inevitable slow down of the property market the lock down will entail (in line with recent Scottish Government guidance). At least we now have a situation that seems to cater for those who were caught in a logjam at what would be a stressful moment even in a non-pandemic world.

As principled as Scots land law is – and I will stick up for it till I am blue (and white) in the face – it would have been equal parts ridiculous and ludicrous to not allow people to become owners of land in a situation where everything was ready to roll and a socially distant flit was possible. We now have a solution though, it is just a case of trying to make it work. To end on an optimistic note, perhaps the systems that emerge from this crisis, not to mention a more tech-savvy profession, may even bring about a framework that is a little better for this upheaval when we can return to some kind of normality.

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Scottish Land Commission coverage of the Review of International Experience of Community, Communal and Municipal Ownership of Land

Today, the Scottish Land Commission published a blog post entitled “Is there such a thing as ‘normal’ community ownership?“, penned by its James MacKessack-Leitch.

This blog post links to a report (PDF) which sets out international approaches to communal and municipal land ownership. The report was driven forward by a team from Scotland’s Rural College (Rob Mc Morran, Jayne Glass, Jane Atterton, Sarah Jones and Eugenio Perez Certucha), who were joined by Annie McKee (from the James Hutton Institute), Ting Xu (University of Sheffield) and me.

As is my style with these blog [sign]posts, I will let that Report speak for itself. This post simply serves as a flag to the resource. I hope it is useful in its own right, and also for the Commission in terms of its further work in this area.

ScotLandCom International Community Snip

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Scottish Evictions and the Coronavirus (Scotland) Bill

The Coronavirus (Scotland) Bill was published today. It is available on the Scottish Parliament website here (PDF here).

Section 2 – the first substantive provision of the bill (with section 1 doing the microbiological needful and defining what is meant by “coronavirus”) – deals with “Eviction from dwelling-houses”, providing that “Schedule 1 contains temporary modifications to the law in relation to the eviction of private sector tenants and social tenants from dwelling-houses.

Given the focus on private sector residential lets in particular in recent days (as explained in my earlier post for the Strathclyde Law Blog), it is not a surprise this is front and centre. The provision (coupled with Schedule 1) also extends to the social sector. This post will concentrate on the private sector.

Schedule 1 sets out modifications for the three private letting regimes that still exist in Scotland, the governing regimes being: the very rare Rent (Scotland) Act 1984 (there have been no new tenancies under this since 1 January 1989); the relatively rare Housing (Scotland) Act 1988 (there have been no new assured or short assured tenancies since 30 November 2017); and the now dominant private residential tenancy. PRTs have been the sole private letting vehicle since 1 December 2017, and accordingly form the main focus of this post.

PRTs are governed by the Private Housing (Tenancies) (Scotland) Act 2016. The Coronavirus Bill modifies section 51 of this legislation, such that it removes any chance for the First-tier Tribunal for Scotland (Housing and Property Chamber) (the FTT) to evict someone on a mandatory basis.

As noted in my earlier post, for a landlord to recover possession from a tenant legally the landlord must have an order from the FTT. The FTT will only make an order if the landlord establishes the existence of one or more of eighteen possible eviction grounds. To explain further, in non-COVID-19 times there are two levels of private rented sector eviction ground: a mandatory eviction ground, which the FTT must grant if it is made out by the landlord; and a discretionary eviction ground, which the FTT may grant if it is made out, if the FTT thinks it is reasonable to do so.

The Coronavirus Bill will make all evictions that would have been mandatory (for example, owing to criminal conduct by the tenant, or the landlord wishing to sell or refurbish the property) subject to a reasonableness test. What was once shrouded in imperative language is now cloaked in discretion.

Of course, the FTT is not sitting at the moment, which means neither tenants nor landlords can get to it for any matters, be they eviction-related or otherwise, but when it sits again these rules will be relevant for that which comes before it.

Returning to the Coronavirus Bill, another thing it will do is extend the period for “notices to leave” in most circumstances, this period being something that a landlord must normally allow to run before raising proceedings at the FTT to recover possession. Subject to the FTT waiving compliance with this period in exceptional circumstances, a landlord would ordinarily need to wait 84 days or, in some specific situations, a shorter period of 28 days.

There are now three possible periods a landlord must wait out: 28 days; three months; or six months.

Whilst there is theoretically a short period of 28 days, it is now pretty much oot the windae. The only previously turbo ground that has been spared any particular change is the ground about the tenant not occupying the property, with this still needing 28 days. In fact, this ground has actually been facilitated, by saying that the period is 28 days in ALL circumstances, whereas in non-COVID-19 times you would only be able to access this shorter period in the first six months of a tenant’s occupation. Given the circumstances of the outbreak, this has to make sense, as a tenant in these circumstances warrants no particular protection (and in fact is denying someone else what could be a socially isolated home).

The grounds that could previously be dealt with in a shorter period now must wait for an extended time period. For information, in non-COVID-19 times these shorter period grounds were: 1. tenant in rent arrears for three or more consecutive months; 2. tenant in breach of a non-rent obligation; 3. tenant has a relevant conviction; 4. tenant has engaged in relevant anti-social behaviour; or 5. tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour.

Please note that it is not actually the case that these previously short period grounds have simply migrated to the new intermediate time period. Instead, that three month period only applies in relation to seven grounds, namely: 1. the landlord or 2. a member of the landlord’s family intends to live in the let property; 3. the tenant has a relevant conviction; 4. the tenant has engaged in relevant anti-social behaviour; 5. the tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour; 6. the landlord is not registered by the relevant local authority as a private landlord; or 7. the let property or associated living accommodation is in multiple occupation and not appropriately licensed.

Anything else needs six months. Accordingly, a tenant in rent arrears or in breach of another obligation of the lease should be afforded six months before being evicted. For information, it can be noted that the underlying rent arrears ground for eviction is still that “the tenant has been in rent arrears for three or more consecutive months”, it is just that the landlord has to wait six months to get this before the FTT (when it is sitting).

That deals with PRTs. Similar changes are made in relation to assured tenancies and protected tenancies under the 1988 Act and 1984 Act respectively. At this point, I should really tip my hat the various draftspeople who have slogged away at this. There was a heck of a lot to get through just in relation to the private rented sector, and they have addressed so much more than that. Quite an effort, really.

Here’s a thought though, and it represents something that was said to me in response to my last blog post which can essentially be boiled down as follows: won’t somebody think of the landlords?

I suspect many readers of this post won’t feel instant sympathy for landlords, but – as Lord Hope reminded us in his judgment in Salvesen v Riddell – landlords have rights too. There will be some landlords who could find themselves in a sticky situation if the mortgage holidays that secured lenders have been talking about do not fully emerge. Furthermore, existing rules about the enforcement of standard securities (i.e. mortgages, in terms of the Conveyancing and Feudal Reform (Scotland) Act 1970) do afford some protection to residential debtors (owing to reforms made by the Home Owner and Debtor Protection (Scotland) Act 2010), but these do not extend to non-resident landlords. Rapacious landlords might be in the line of sights of some people, but it might be that secured lenders also need to be considered. This is definitely something to monitor.

Moving away from the rented sector but staying in the housing market, as noted there are no changes to the protections of residents who could be facing mortgage debt issues (save of course the strange new protection of civil justice grinding to a halt). There are however some changes in relation to bankruptcy legislation that might help home owners who are faced with non-mortgage-related debt enforcement action.

What else does the Coronavirus Bill do? An awful lot indeed. I see it proposes something not at all controversial about jury trials. Hmm.

I’ll conclude with a much more controversial point: in a Scots law context I tend to spell “dwellinghouse” as a compound word, but the Coronavirus Bill uses a hyphen. Crazy times indeed.

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