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Section 5 — Application to sheriff for annulment of certain decisions

Tenements (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:15 pm on 16th September 2004.

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Amendment 80 not moved.

Photo of Murray Tosh Murray Tosh Conservative

Group 4 is on applications to the sheriff for annulment of certain decisions. Amendment 3, in the name of the minister, is grouped with amendments 4, 5 and 37.

Photo of Mary Mulligan Mary Mulligan Labour

I am sure that we are all grateful to Dennis Canavan for that experience. Those who thought that the Tenement (Scotland) Bill was not important have not yet had that experience.

Amendments 5 and 37 will clarify who can apply to the sheriff court under section 5 for annulment of a decision that is taken by a majority of owners under whichever management scheme applies to the tenement. Although the bill ensures that majority voting will become the norm for tenements in Scotland, the power of the majority will not be unfettered, as an individual who did not vote in favour of a decision will have the right to apply to the sheriff for an annulment of a decision of the majority. The sheriff will be able to grant an annulment if he or she is satisfied either that the relevant decision is not in the best interests of all the owners taken as a group, or that it is unfairly prejudicial to one or more of the owners.

Amendment 5 provides that those who can seek to have a majority decision overturned are, first, the owner at the time that the decision was made and, secondly, a new owner. The owner at the time that the decision was made may not have been in favour of the decision or may have expressed no view, perhaps because they were not present. A new owner who was not the owner at the time of the decision must also be included to deal with the situation of a change in ownership because, under section 11, the incoming owner may be severally liable with the former owner.

Amendments 3 and 4 reflect the new definition of a management scheme that will be introduced by amendments 33 and 43, which will be discussed under group 14. Amendments 3 and 4 simply make it clear that all tenements will be subject to a management scheme, whether that be a tenement management scheme, the development management scheme, the burdens in the title deeds or a combination of the burdens and the individual rules of the tenement management scheme.

I move amendment 3.

Amendment 3 agreed to.

Amendments 4 and 5 moved—[Mrs Mary Mulligan]—and agreed to.

Photo of Murray Tosh Murray Tosh Conservative

Group 5 is on the meaning of "owner". Amendment 6, in the name of the minister, is grouped with amendments 7, 34 to 36 and 41.

Photo of Mary Mulligan Mary Mulligan Labour 3:30 pm, 16th September 2004

Amendments 6 and 7 will clarify that if two or more persons own a flat, either or any of them may raise an action in the sheriff court under section 5. The amendments will also make it clear that the 28-day period within which an application to the sheriff must be made cannot be started for all co-owners by service of notice of a decision on just one of them. The purpose of the amendments is to protect each owner where there are two or more co-owners of a flat. Each owner must have equal rights and the action or inaction of a co-owner must not remove those rights.

The remaining amendments in the group are technical drafting amendments that are designed to ensure that the references to "owner of a flat" and

"owner of a part of a tenement" work properly.

I move amendment 6.

Amendment 6 agreed to.

Amendment 7 moved—[Mrs Mary Mulligan]—and agreed to.

Photo of Murray Tosh Murray Tosh Conservative

Group 6 is on the giving of notice. Amendment 8, in the name of the minister, is grouped with amendments 46, 57 to 59 and 71.

Photo of Mary Mulligan Mary Mulligan Labour

Amendments 46 and 71 will make a technical change to the rules for giving notice to owners of decisions that are made under the bill or the tenement management scheme. Section 25A provides that a notice can be sent to the flat in question if the name of the owner is not known, but it is of course possible for the owner's name to be known while his or her whereabouts are a mystery. Amendments 46 and 71 will provide that, in that case, it will be sufficient for the notice to be sent to the flat. However, the person who sends the notice will have to have made "reasonable inquiry" as to where the owner is.

Amendments 8 and 57 to 59 are technical drafting amendments that will ensure that the language that is used in the bill is consistent.

I move amendment 8.

Amendment 8 agreed to.