Office of Public Sector Information
PART 2 continued CHAPTER 3 continued
(1) Where the owner of land in respect of which a community interest is registered or, as the case may be, a creditor in a standard security with a right to sell such land proposes to transfer that land (or any land of which that land forms part) by way of a transfer under this Part of this Act, the owner or, as the case may be, such a creditor shall notify that fact to—
(a) the community body, or bodies, in respect of which the interest is registered; and
(b) Ministers.
(2) Notification under subsection (1) above shall be given in such form and otherwise in accordance with such provisions as are prescribed.
(3) Subsection (1) above operates so as to require notification of a proposal to transfer land in respect of which no community interest has been registered only where that proposed transfer also relates to land in respect of which a community interest has been registered.
(4) Where notification under subsection (1) above is given by a creditor in a standard security with a right to sell the land, references in the following sections of this Part of this Act to the owner of the land shall, for the purposes of determining the procedure which is to apply in respect of the sale of the land by that creditor, be deemed to be references to that creditor.
(1) On receipt of notification under section 48 above from an owner of land, Ministers shall direct the Keeper to enter particulars of the notification in the Register.
(2) Not later than 7 days after such receipt Ministers shall—
(a) send to the community body which has registered the interest in the land a notice in the prescribed form seeking its confirmation in writing that it will exercise its right to buy the land; and
(b) send to the owner of the land a notice in the prescribed form narrating their compliance with paragraph (a) above.
(3) A notice under subsection (2)(a) above shall specify the date referred to in and narrate the effect of subsection (4) below.
(4) If, by the date specified in the notice, being a date not later than 30 days after it was sent, the community body has not caused its confirmation to be received by Ministers, Ministers shall be deemed to have received written notice from the community body under subsection (1) of section 54 below that it will not exercise its right to buy the land and subsections (2) to (4) of that section shall apply accordingly.
(5) Ministers shall send a copy of—
(a) the notice sent under subsection (2)(a) above; and
(b) any confirmation received by them in pursuance of this section,
to the owner of the land and to the Keeper.
(6) Any failure to comply with the time limit specified in subsection (2) above does not affect the validity of anything done under this section.
(1) If, on an application made to it by a community body which has registered an interest in land, the Lands Tribunal determine that—
(a) the owner of that land, or a creditor in a standard security with a right to sell that land, has acted in breach of a prohibition under—
(i) subsection (5)(e) of section 37 above; or
(ii) section 40(1) above; and
(b) each of the conditions set out in subsection (2) below is met,
the Tribunal shall notify Ministers of that fact.
(2) Those conditions are—
(a) that the action referred to in subsection (1)(a) above occurred during the period of ten years immediately prior to the date on which the application was made;
(b) that the land has, during such period, not ceased to be registrable land;
(c) that the community interest in the land which had been registered, or applied for, before the action referred to in subsection (1)(a) above remains in effect or another has, since then, been registered; and
(d) that Ministers have not, on or after the date on which the action referred to in subsection (1)(a) above occurred, received, or been deemed to have received, written notice under subsection (1) of section 54 below from the community body which had, on that date, registered, or applied to register, an interest in the land.
(3) On receipt of notice under subsection (1) above Ministers shall—
(a) give notice of the Tribunal’s determination to each community body which—
(i) had registered, or had applied to register, an interest in the land on the date on which the action referred to in subsection (1)(a) above occurred; and
(ii) has such an interest on the date on which the notice is served; and
(b) send a copy of the notice to the owner of the land and to the Keeper.
(4) A notice under subsection (3) above shall narrate the effect of subsection (5) below.
(5) Where notice is given by Ministers under subsection (3) above the owner of the land is, for the purposes of this Part of this Act, deemed to have, on the date on which notice was given by Ministers, given notice under section 48(1) above that a transfer of the land is proposed.
(1) A community body shall not proceed to buy land under this Part of this Act without—
(a) the approval of the community; and
(b) the consent of Ministers.
(2) The community are to be taken as having given their approval for the purposes of subsections (1) above and (3) below if Ministers are satisfied—
(a) that—
(i) at least half of the members of the community, as defined for the purposes of section 34(1)(a) above, have voted in a ballot conducted by the community body on the question whether the community body should buy the land; or
(ii) where less than half of the members of the community have so voted, the proportion which did vote is, in the circumstances, sufficient to justify the community body’s proceeding to buy the land; and
(b) that the majority of those voting have voted in favour of the proposition that the community body buy the land.
(3) Ministers shall not consent for the purposes of subsection (1) above unless the community have given their approval and Ministers are satisfied—
(a) that the land is registrable land;
(b) that the community body continues to comply with the provisions of section 34 above;
(c) that what the community body proposes to do with the land is compatible with furthering the achievement of sustainable development;
(d) that the proposed purchase of the land is in the public interest; and
(e) that there has not, since the date on which they decided the community body’s interest should be registered, been a change in any matters to the extent that, if the application to register the community interest were made afresh, they would decide that the interest is not to be entered in the Register.
(4) A community body may require Ministers to treat as confidential any information or document relating to arrangements for the raising or expenditure of money to enable the land to be put to a particular use, being information or a document made available to Ministers for the purposes of subsection (3) above.
(5) Ministers shall, within the time limit specified in subsection (6) below, send notice of their decision as to consent and their reasons for it in writing to the community body and to the owner of the land and shall direct the Keeper to enter a record of that decision in the Register.
(6) That time limit is—
(a) where one community body has confirmed that it will exercise its right to buy the land, the 21 days following receipt of notification, under section 52(3) below, of the result of the ballot conducted by the body; or
(b) where two or more community bodies have confirmed that they will exercise their right to buy the land, the 21 days following receipt of such notification in respect of the last of the ballots conducted by those bodies.
(7) Any failure to comply with the time limit specified in subsection (6) above does not affect the validity of anything done under this section.
(1) The ballot shall be conducted as prescribed; and the provisions prescribed shall include provision for the ascertainment and publication of the number of persons eligible to vote in the ballot, the number who did so and the numbers of valid votes respectively cast for and against the proposition mentioned in section 51(2)(b) above.
(2) If the ballot is not so conducted, the right to buy of the community body conducting it is extinguished.
(3) The community body which conducts a ballot shall, within the period set out in subsection (4) below and in the prescribed form of return, notify—
(a) the result;
(b) the number of persons eligible to vote;
(c) the number who voted; and
(d) the number who voted in favour of the proposition mentioned in section 51(2)(b) above,
to Ministers.
(4) The period referred to in subsection (3) above is the period of 28 days beginning with the date—
(a) when the valuer notified the community body under section 60(2) below of the assessed value of the land and any moveable property; or
(b) where the price assessed by the appointed valuer is the subject of appeal, the date on which the price is determined on appeal as mentioned in subsection (2) of section 56 below or settled as mentioned in subsection (2)(a) of that section.
Where the land in which a community interest has been registered is salmon fishings or mineral rights, Ministers shall not consent under section 51(1) above to the exercise of the right to buy unless they are (additionally to the matters as to which they are to be satisfied under section 51(3) above) satisfied that—
(a) the salmon fishings are in waters which are within or contiguous to;
(b) where in separate ownership from the land, the mineral rights are exercisable within,
land which the community body is, at the same time, exercising its right to buy or already owns.
(1) If, at any time, a community body which has registered a community interest decides that it will not exercise its right to buy the land, it shall give Ministers written notice of its decision.
(2) On receipt of a notice under subsection (1) above, Ministers shall—
(a) send a copy of it to the Keeper and direct the Keeper to delete the community interest from the Register; and
(b) notify the owner of the land of that fact.
(3) Where, when that notice is given, that right to buy has arisen, the right is then extinguished.
(4) Nothing in or done under subsections (1) to (3) above prevents a community body from registering a community interest in the same land for a second or subsequent time.
(5) If, at any time after the owner of land has given notice under section 48(1) above but before the owner has concluded missives with a community body for the sale and purchase of the land in respect of which a right to buy has arisen, the owner of the land decides not to proceed further with the proposed transfer the owner shall give written notice of that fact to—
(a) Ministers; and
(b) each community body which has registered an interest in the land.
(6) Ministers shall send a copy of the notice given under subsection (5) above to the Keeper.
(7) Where a notice is given under subsection (5) above, the right to buy the land which arose under section 47 above is extinguished.
(8) Subsections (5) and (7) above do not apply where the right to buy land has arisen and is being exercised by virtue of the owner of land being deemed, by section 50(5) above, to have provided notice under section 48(1) above.
(9) Nothing in subsection (7) above prevents a right to buy land from arising for a second or subsequent time.
(1) Only one community body may exercise the right to buy land in which two or more community bodies have registered community interests.
(2) Where two or more community bodies have confirmed that they will exercise their rights to buy such land it is for Ministers to decide which one is to proceed.
(3) On Ministers so deciding—
(a) the other community body’s right to buy the land is extinguished; and
(b) they shall—
(i) direct the Keeper to delete its interest from the Register; and
(ii) notify the owner of the land and the community bodies of that fact.
(4) Where a community body has confirmed that it will buy the land as respects which a crofting community body has applied to Ministers under section 73 below for consent to exercise the right to buy, it is for Ministers to decide which body is to proceed.
(5) Where Ministers decide that the crofting community body is to proceed—
(a) the community body’s right to buy the land is extinguished; and
(b) they shall—
(i) direct the Keeper to delete its interest from the Register; and
(ii) notify the owner of the land, the crofting community body and the community body of that fact.
(1) It is for the community body to make the offer to buy in exercise of the right conferred by this Part of this Act.
(2) The offer shall be at a price—
(a) agreed between the community body and the owner of the land; or
(b) where no such agreement is reached, equal to—
(i) the value assessed by the appointed valuer; or
(ii) if that value is the subject of an appeal under section 62 below, the value determined by the appeal,
and shall specify the date of entry and of payment of the price in accordance with subsection (3) below.
(3) The date of entry and of payment of the price shall be—
(a) a date not later than 6 months from the date when the community body sent the confirmation sought by Ministers under section 49(2)(a) above of its intention to buy;
(b) where the price assessed by the appointed valuer is the subject of an appeal under section 62 below which has not, within the period of 4 months after the date when the community body sent that confirmation, been—
(i) determined; or
(ii) abandoned following agreement between the community body and the owner of the land,
a date not later than 2 months after the appeal is so determined or, as the case may be, abandoned; or
(c) such later date as may be agreed between the community body and the owner of the land.
(4) The offer may include such other reasonable conditions as are necessary or expedient to secure the efficient progress and completion of the transfer.
(5) If a community body has not, within the period fixed by or agreed under subsection (3) above, done any of the things mentioned in subsection (6) below, the community body’s right to buy the land is extinguished and Ministers shall—
(a) direct the Keeper to delete its interest in the land from the Register; and
(b) notify the owner of the land of that fact.
(6) The things referred to in subsection (5) above are—
(a) concluding missives with the owner of the land for its sale to the community body;
(b) if the community body has not so concluded missives, taking all steps which, in the opinion of the Lands Tribunal, it could reasonably have taken in the time available towards so concluding missives short of applying to the Lands Tribunal for an order under section 57 below; and
(c) where—
(i) paragraph (b) above applies;
(ii) all such steps as are there mentioned have been taken; and
(iii) there has been, in the opinion of the Lands Tribunal, reasonably sufficient time also to apply to the Lands Tribunal for an order under section 57 below,
applying to the Lands Tribunal accordingly.
(1) If, on application made to it by the owner of the land or the community body, the Lands Tribunal is satisfied that, following the making of an offer in pursuance of section 56 above, the owner of the land or the community body has unreasonably delayed the progress of transferring title to the land to the community body, the Tribunal may order the owner of the land or, as the case may be, the community body to take such remedial action as is specified in the order and to do so within such time as is so specified.
(2) If a community body—
(a) fails to comply with an order under subsection (1) above; and
(b) has not, within the time in which remedial action specified in such order is required to be taken, given notice under section 54 above to Ministers that it no longer wishes to exercise its right to buy the land,
the Lands Tribunal may make an order extinguishing its right to buy the land and, where the Tribunal makes such an order, it shall send a copy of the order to Ministers and the owner of the land.
(3) Ministers shall, if an order is made under subsection (2) above—
(a) direct the Keeper to delete the community body’s interest from the Register; and
(b) notify the owner of the land of that fact.
(4) If an owner of land—
(a) fails to comply with an order under subsection (1) above; and
(b) has not, within the time in which remedial action specified in such order is required to be taken, given notice under section 54 above to Ministers and the community body that the owner of the land no longer wishes to proceed with the transfer of the land,
the Lands Tribunal may make an order authorising the community body to acquire the land subject to such terms and conditions as may be specified in the order and requiring the owner of the land to transfer the land to the community body in accordance with such terms and conditions.
(5) If an owner of land refuses or fails to effect a transfer of land in pursuance of an order under subsection (4) above in accordance with such terms and conditions as may be specified in the order, the Lands Tribunal may authorise its principal clerk to adjust, execute and deliver such deeds or other documents as are necessary to complete the transfer to the like force and effect as if the owner had acted in the manner required by the order.
(1) Where a right to buy land arises, and may be exercised, by virtue of Ministers sending notice under section 50(3) above, subsections (2) to (6) below apply in place of sections 56 and 57 above in relation to the exercise of that right.
(2) It is for the community body to secure the expeditious exercise of such a right to buy and, in particular—
(a) to prepare the documents necessary to effect the transfer; and
(b) in so doing, to ensure that the land in respect of which the right to buy has arisen is the same as the land to be transferred.
(3) The community body shall pay a price—
(a) equal to the value assessed by the appointed valuer; or
(b) determined by an appeal.
(4) The owner of the land being bought is obliged—
(a) to make available to the community body such deeds and other documents as are sufficient to enable the body to proceed to complete its title to the land; and
(b) to transfer title accordingly.
(5) If the owner of the land refuses or fails to make those deeds and other documents available or they cannot be found, the Lands Tribunal may, on the application of the community body, order the owner or any other person appearing to the Tribunal to have those deeds and documents to produce them.
(6) If the owner of the land refuses or fails to effect such transfer as is mentioned in subsection (4) above, the Lands Tribunal may, on the application of the community body, authorise its principal clerk to adjust, execute and deliver such deeds or other documents as will complete such transfer to the like force and effect as if done by the owner.
(1) Ministers shall, within 7 days of the receipt of a confirmation, sought by them under section 49(2)(a) above, that a community body will exercise its right to buy the land, appoint a valuer, being a person who appears to Ministers to be suitably qualified, independent and to have knowledge and experience of valuing land of a kind which is similar to the land being bought, to assess the value of the land.
(2) The validity of anything done under this section is not affected by any failure by Ministers to comply with the time limit specified in subsection (1) above.
(3) In assessing the value of land in pursuance of an appointment under subsection (1) above, a valuer—
(a) does not act on behalf of the owner of the land or the community body which is exercising its right to buy the land; and
(b) shall act as an expert and not as an arbiter.
(4) The value to be assessed is the market value of the land—
(a) as at the date of notification under section 48(1) above which gave rise to the right to buy the land; or
(b) in a case where the community body’s interest was registered in pursuance of an application to which section 39 above applied, as at the date of Ministers' receipt of that application.
(5) Where the land the value of which is to be assessed includes salmon fishings or mineral rights, the value of those fishings or rights shall be separately assessed.
(6) The “market value” of land, for the purposes of subsection (4) above, is the aggregate of—
(a) the value it would have on the open market as between a seller and a buyer both of whom are, as respects the transaction, willing; and
(b) where a community body is exercising a right to buy which has arisen in relation to part only of the land in respect of which the owner has given notice under section 48(1) above that a transfer is proposed, the amount of any diminution in the value of the other part of that land which is attributable to the fact that part only of the land is being bought by the body.
(7) In assessing, for those purposes, the value which land would have in the circumstances mentioned in subsection (6)(a) above—
(a) account may be taken, insofar as a seller and a buyer of the land such as are mentioned in subsection (6) above would do so, of any factor attributable to the known existence of a person who (not being the community body which is exercising its right to buy the land) would be willing to buy the land at a price higher than other persons because of a characteristic of the land which relates peculiarly to that person’s interest in buying it;
(b) no account shall be taken of—
(i) the registration of an interest in or the exercise of a right to buy the land by a community body under this Part of this Act;
(ii) the absence of the period of time during which the land would, on the open market, be likely to be advertised and exposed for sale;
(iii) any depreciation in the value of any other land owned by the seller;
(iv) the expenses of the valuation or otherwise related to the sale and purchase of the land.
(8) Where the proposed transfer which gave rise to a community body’s right to buy land was conditional upon moveable property belonging to the owner of the land and used in connection with it being sold with the land, the appointment of the valuer shall be extended to include the valuation of that moveable property.
(9) In any case where that appointment is so extended the moveable property shall be valued separately from the land, individual items of moveable property shall be valued separately from each other and the provisions of this section relating to the assessment of the value of land shall, so far as appropriate, apply for the purposes of the valuation of the moveable property.
(10) The expense of a valuation under this section shall be met by Ministers.
(1) In carrying out a valuation under section 59 above, the valuer shall invite the owner of the land and the community body which is exercising its right to buy the land to make written representations about the value of the land and any moveable property being bought with the land and shall consider any representations made accordingly.
(2) The valuer shall, within the period set out in subsection (3) below, notify Ministers, the owner of the land and the community body which is exercising its right to buy the land of the assessed value of the land and of any moveable property which has been valued.
(3) The period referred to in subsection (2) above is the period of 6 weeks beginning with the date of appointment of the valuer or such other longer period as Ministers may, on an application by the valuer, fix.
(4) The validity of anything done under this Part of this Act is not affected by any failure by a valuer to comply with the time limit specified in subsection (3) above.
(1) An owner of land may, by summary application, appeal to the sheriff against—
(a) a decision by Ministers that a community interest in the land is to be entered in the Register; or
(b) a decision by Ministers to give consent to the exercise by a community body of its right to buy the land.
(2) A community body may, by summary application, appeal to the sheriff against—
(a) a decision by Ministers that its community interest is not to be entered in the Register; or
(b) a decision by Ministers not to give consent to the exercise by the community body of its right to buy.
(3) A person who is a member of a community as defined for the purposes of section 34(1)(a) above in relation to a community body or who has any interest in the land giving rise to a right which is legally enforceable by that person may, by summary application, appeal to the sheriff against—
(a) a decision by Ministers that a community interest in land is to be entered in the Register on the application of the community body; or
(b) a decision by Ministers to consent to the exercise of the community body’s right to buy land.
(4) An appeal under subsection (1), (2) or (3) above shall be lodged within 28 days of the date on which Ministers decided whether to enter the community interest or, as the case may be, whether to consent to the exercise of the right to buy land.
(5) The sheriff in whose sheriffdom the land or any part of it is situated has jurisdiction to hear an appeal under this section.
(6) Where an appeal is made—
(a) under subsection (1) above the owner shall intimate that fact to—
(i) the community body; and
(ii) Ministers;
(b) under subsection (2) above the community body shall intimate that fact to—
(i) the owner; and
(ii) Ministers; or
(c) under subsection (3) above the member of the community shall intimate that fact to—
(i) the community body;
(ii) the owner; and
(iii) Ministers.
(7) The decision of the sheriff in an appeal under this section—
(a) may require rectification of the Register;
(b) may impose conditions upon the appellant;
(c) is final.
(1) The owner of the land and the community body which is exercising its right to buy the land may appeal to the Lands Tribunal against the valuation carried out under section 59 above.
(2) An appeal under this section shall state the grounds on which it is being made and shall be lodged within 21 days of the date of notification under section 60 above.
(3) In an appeal under this section, the Lands Tribunal may reassess the value of—
(a) the land;
(b) any moveable property used in connection with, and being sold with, the land; or
(c) both the land and any such moveable property.
(4) The valuer whose valuation is appealed against may be a witness in the appeal proceedings.
(5) The hearing of an appeal under this section shall begin not later than the first sitting day after the expiry of the period of four months beginning with the day on which the appeal was lodged.
(6) In subsection (5) above, a “sitting day” is a day when the Lands Tribunal normally sits.
(7) The Lands Tribunal shall give reasons for its decision on an appeal under this section and issue a written statement of those reasons within 4 weeks of the hearing of the appeal.
(8) The validity of anything done under this Part of this Act is not affected by any failure of the Lands Tribunal to comply with the time limit specified in subsection (7) above.
(9) Ministers are not competent parties to any appeal under this section by reason only that they appointed the valuer whose valuation is the subject of the appeal.
(10) Ministers' powers under the Lands Tribunal Act 1949 (c. 42) to make rules as respects that Tribunal extend to such rules as may be necessary or expedient to give full effect to this section.
(1) Any person (other than a community body) who has incurred loss or expense—
(a) in complying with the procedural requirements of this Part of this Act;
(b) as a result of failure by a community body to comply with an order of the Lands Tribunal under section 57 above;
(c) attributable to a prohibition imposed under subsection (5)(e) of section 37 above; or
(d) as a result of the operation of paragraph (a) or (b) of section 56(3) above,
is entitled to compensation from Ministers of such amount as they may determine.
(2) The reference in subsection (1)(d) above to loss or expense incurred as a result of the operation of paragraph (a) or (b) of section 56(3) above is a reference to loss or expense incurred which would be likely not to have been incurred in a sale of the land to a person who, not being a community body, would not have had the benefit of the provision of those paragraphs.
(3) Where the community body and the owner of the land agree, under paragraph (c) of section 56(3) above, that the date of entry and payment of price shall be on a date after the last date on which that date could, by the operation of paragraphs (a) or (b) of that section, otherwise have been, no compensation shall be payable for any loss or expense attributable to any period occurring after that last date.
(4) A person who has incurred loss or expense as a result of the suspension under this Act of a right of pre emption, redemption or reversion enjoyed by that person is entitled to compensation.
(5) The procedure for recovering losses and expenses under this section shall be as prescribed.
Land Reform (Scotland) Act 2003