Residential property
01 Aug 2018 News

The Community Right to Buy - abandoned or neglected land

You might not think that you have any abandoned or neglected land, but it’s worth a quick review to ensure that that 2 acres site next to the village that you are hoping to sell to a housebuilder isn’t vulnerable to a community right to buy.    

The existing community right to buy

The existing Community Right to Buy (CRtB) was originally introduced by the Land Reform (Scotland) Act 2003 and allows communities to buy land for the benefit of the local community.  The right is “pre-emptive” - it can only be exercised if the owner wishes to sell, and the Community Body should register an interest before land is put on the market, although there is a mechanism for late applications.

The community right to buy “abandoned or neglected” land

This right is effective from 27 June 2018.  It was introduced by the Community Empowerment (Scotland) Act 2015, and allows community bodies to purchase land which is abandoned, neglected or “causing harm to the environmental wellbeing of” the community.  None of these terms are defined, and are for the Scottish Ministers to decide.  There is however a right to appeal to the Lands Tribunal for Scotland against the Ministers decision.

The right applies to all land in Scotland, with very limited exclusions. Crucially, unlike the “ordinary” community right to buy under Part 2 of the Land Reform (Scotland) Act 2003, the new provisions are an absolute right to buy, and can be exercised even if the owner does not want to sell.  The sale must however be in the public interest and compatible with furthering the achievement of sustainable development in relation to the land.

The right is exercised by the Community Body making an application to the Scottish Ministers for consent to buy the land. The Scottish Ministers may only grant consent if they are satisfied that various criteria are met.  These include:-

  • The exercise is in the public interest,
  • The exercise is compatible with furthering the aim of sustainable development,
  • The achievement of the aim of sustainable development would be unlikely if the owner were to remain the owner of the land,
  • The owner of the land (and any creditor) have been correctly identified,
  • A significant number of members of the community have an interest in the land (or the land is sufficiently near to land the community has a connection with),
  • The owner is not subject to any legal impediment which would prevent him or her from selling the land,
  • The community must have tried to buy the land other than under the legislation.

The price to be paid is to be fixed by a valuer appointed by the Ministers, which is expected to be the District Valuer.  In addition, the landowner, or any other person who has suffered loss as a result of the process is entitled to compensation from the community body (including costs in relation to abortive transfers). 

The Scottish Government has recently published a raft of regulations in relation to the detail as to how this community right to buy can be exercised, dealing with matters such as the form an application should take and detailed ballot procedures to ascertain the wishes of the community, as well as the process for appointment of the valuer.  Further secondary legislation dealing with the details is likely to follow.

In addition, it is expected that a further right to buy, for the purposes of “sustainable Development” under the Land Reform (Scotland) Act 2016 will come into force in the first half of 2019.  The various rights to buy, and how they interact with each other, is extremely complex. Gillespie Macandrew can provide specialist advice to any member who might be affected.

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