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Section 11 — Liability of owner and successors for certain costs

Tenements (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:30 pm on 16th September 2004.

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Photo of Murray Tosh Murray Tosh Conservative 3:30 pm, 16th September 2004

We now come to group 9. Amendment 21, in the name of the minister, is grouped with amendments 22, 22A, 24, 81, 38, 42, 45 and 72. I require the minister to move amendment 21. I do not think that it is necessary for her to say anything further.

Amendment 21 moved—[Mrs Mary Mulligan].

Photo of Annabel Goldie Annabel Goldie Conservative

I come to the aid of the minister—she is not the first person to become confused by the Tenements (Scotland) Bill. There were many furrowed brows and perspiring heads in the Justice 2 Committee.

The Executive's amendments to section 11 are welcome, as they acknowledge the concerns of the Justice 2 Committee. As the minister indicated, two amendments were lodged at stage 2 to try to avoid the situation in which a hapless purchaser becomes liable for a seller's obligations without knowing anything about it. I appreciate the attitude that the minister has adopted, as the amendments that have been lodged in her name accept the full spirit of the concerns that were expressed by the Justice 2 Committee and which I personally advocated as a member of that committee.

The reason why I lodged amendment 22A is that even though the Executive's amendment 22 is excellent, I am trying to make it a little better. Any purchaser who is buying a property, which is an important financial commitment, wants to know as soon as possible what the likely obligations of acquiring that property will be. Under the Executive's amendment, the purchaser will be liable but they will at least know about that liability because a notice can be registered until 14 days before the date of settlement. I thought that it might be desirable, for the sake of the purchaser, to make that date a little earlier, so my amendment 22A seeks to bring the date forward to the date of conclusion of missives.

Photo of Mike Pringle Mike Pringle Liberal Democrat

Section 11 probably exercised the committee more than any other section of the bill. There was considerable discussion on it and a considerable number of people gave evidence. I was certainly persuaded to agree with the committee's view. In my experience as a councillor, purchasers came to me on two occasions to ask me to resolve problems whereby owners who had sold their properties had disappeared. I am delighted that the minister listened and has lodged amendments at stage 3. They are different from the amendments that were lodged by Annabel Goldie and Nicola Sturgeon at stage 2, and what we now have is something that will work extremely well for purchasers, who were in an invidious position. The amendments will oblige not only sellers but sellers' lawyers to ensure that they give the information to the purchaser and the purchaser's solicitor at the point of sale. That can only benefit the huge number of people throughout Scotland who purchase tenement flats.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 3:45 pm, 16th September 2004

I concur with the points that Annabel Goldie made; the amendments to section 11 are welcome. We can never make the purchase of property risk free—given the circumstances and costs involved, there will always be difficulties—but the law can seek to make matters as transparent as possible and to make information readily available so that people can find out what the factual situation is and can get a clear remedy as quickly as possible. That is the purpose of section 11, and it is greatly welcome.

On the points that Annabel Goldie made on her amendment 22A, I had the opportunity of discussing matters with the minister, and I will be supporting the amendment. The minister may be technically correct in saying that matters are addressed and clarified in the schedule, but terminology is important. People do not like to have to look at schedules to find out what is being referred to.

The terminology of missives is quite clear in Scots law, and it is understood, not just by practising lawyers but by those who participate in the process, that there are two aspects to the purchasing of property: the conclusion of missives and the creation of the contract and, subsequently, the handing over of the property and the passing on of the money. The minister is correct to say that that is referred to in the schedule, and it could be argued that the nomenclature change proposed by Miss Goldie is superfluous, but it is important that matters are as clear as possible. Section 11 should be as transparent as possible, and we should make clear the position to which we refer, without having to flick through several pages.

The minister may be legally correct, but in the interests of clarity and transparency Miss Goldie's amendment 22A is welcome. It will not undermine the ethos of the bill, but it will make the bill more accessible to lawyers and other practitioners who flick through it, by making it clear that risk transfers when missives are concluded.

Photo of Mary Mulligan Mary Mulligan Labour

I realise that I am taking my life in my hands by discussing legal points with two lawyers, but I will do it anyway.

I acknowledge that Annabel Goldie's amendment 22A is meant to be helpful. The concern is that the bill's definition, which refers to the date when the new owner acquired right to the flat, might give rise to confusion, and that providing for the date on which "missives were concluded" might be more certain. However, I do not share that concern. The phrase "acquisition date" is the established phrase for the date on which a purchaser acquires right to a property. It is familiar to conveyancing solicitors from legislation such as the Conveyancing and Feudal Reform (Scotland) Act 1970—with which I am sure all members are familiar—and it has been used generally in recent legislation. It is also used elsewhere in the bill. Essentially, a person has right to a flat once that person has delivered disposition for that flat. We would prefer to stick with the established definition, which is in line with other statutes.

Moreover, I suggest in the nicest possible way that amendment 22A is defective, because it deals only with the normal purchase and sale situation where there will be missives of sale. Not all transfers of flats will require missives, for example transfers of property following the owner's death. I ask Annabel Goldie not to move amendment 22A.

Amendment 21 agreed to.

Amendment 22 moved—Mrs Mary Mulligan.

Amendment 22A moved—Miss Annabel Goldie.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 22A be agreed to. Are we all agreed?



Division number 2

For: Aitken, Bill, Baird, Shiona, Ballance, Chris, Brocklebank, Mr Ted, Davidson, Mr David, Douglas-Hamilton, Lord James, Fabiani, Linda, Fergusson, Alex, Fox, Colin, Fraser, Murdo, Gibson, Rob, Goldie, Miss Annabel, Grahame, Christine, Harvie, Patrick, Ingram, Mr Adam, Johnstone, Alex, MacAskill, Mr Kenny, Marwick, Tricia, Maxwell, Mr Stewart, McFee, Mr Bruce, Milne, Mrs Nanette, Mitchell, Margaret, Neil, Alex, Robison, Shona, Scanlon, Mary, Scott, John, Sheridan, Tommy, Welsh, Mr Andrew, White, Ms Sandra
Against: Alexander, Ms Wendy, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Eadie, Helen, Ferguson, Patricia, Glen, Marlyn, Godman, Trish, Gorrie, Donald, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Maclean, Kate, Macmillan, Maureen, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stone, Mr Jamie, Swinburne, John, Watson, Mike, Whitefield, Karen, Wilson, Allan

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 29, Against 57, Abstentions 0.

Amendment 22A disagreed to.

Amendment 22 agreed to.

Amendment 23 moved—[Mrs Mary Mulligan]—and agreed to.