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Tenements (Scotland) Bill

– in the Scottish Parliament at 4:00 pm on 16th September 2004.

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Photo of Trish Godman Trish Godman Labour 4:00 pm, 16th September 2004

The next item of business is the debate on motion S2M-1493, in the name of Margaret Curran, that the Tenements (Scotland) Bill be passed.

Photo of Margaret Curran Margaret Curran Labour 4:13 pm, 16th September 2004

I am pleased to move the motion this afternoon to pass the Tenements (Scotland) Bill, which, if members agree to it, will be the first piece of legislation to be passed in this magnificent new Parliament building. It seems particularly appropriate that the first piece of legislation to be passed here should concern buildings and should be a bill that affects the lives of many Scots.

I am sure that most of us in this chamber have lived in a tenement at some point in our lives. Some may even, like me, have been born in one. Tenement living has been a feature of Scottish life for hundreds of years and examples of ancient tenement buildings may be seen not far from here in the Royal Mile. In modern times, however, nearly 1.5 million Scots continue to live in tenement properties, so the proper management of tenements is indeed an urgent matter for the attention of Parliament.

The bill does not simply cover the sandstone and granite buildings that we all think of as tenements. Mary Mulligan and I are dutifully informed that the bill covers all property where ownership is divided horizontally. Modern blocks of flats, high rise towers, four-in-a-block properties and converted villas all come within the ambit of the bill. Commercial properties such as office blocks are also included, so it is wide ranging and the measures are of great consequence. The bill is a law reform measure, but it also represents a commonsense modernisation of the law that will improve the daily lives of people who live or work in tenement property.

In the past there has been widespread frustration about the absence in the existing common law of a proper system of management and decision making in cases in which the title deeds of individual tenements make no provision on the matter. The basic common-law rule has been that every owner in a tenement must agree before repairs can be carried out, unless the title deeds stipulate that majority decision making is allowed. As we know, it is difficult to get everyone to agree, so very often nothing gets done. The common-law rule does not help people; it just gets in their way.

The tenement management scheme that the bill proposes will solve that problem. The scheme will enable a majority of owners to take a decision that will be binding on all owners. All owners will have to contribute their share of the cost of common repairs. Owners will be empowered to take responsibility for the condition of their property. The housing improvement task force was clear in its belief that the responsibility for the upkeep of houses in the private sector lies first and foremost with owners and that there is a need for greater awareness and acceptance of their responsibilities on the part of owners.

Of course, many tenements already have adequate arrangements, which will not be overturned. Similarly, future developers will be able to put in place their own management schemes to suit the individual circumstances. The Justice 2 Committee supported the policy of supplementing and underpinning gaps or deficiencies in title deeds rather than imposing one new set of rules on all tenements.

I am grateful to the Justice 2 Committee for its careful consideration of the bill and to the other interested parties who suggested amendments during either the consultation process or the bill's passage through Parliament. I am sure that I do not say this for the first or the last time: the committees of the Parliament are often a credit to the legislative process that is enshrined in the Parliament.

Members have acknowledged that the Executive has sought to modify the bill in response to concerns. As we heard, amendments have been made to section 11 to protect incoming owners from outstanding liabilities for repair work that has been carried out but not paid for—a matter that accounted for a substantial part of the stage 1 debate. An amendment was made to section 15 to reflect Annabel Goldie's concerns about the requirement for compulsory insurance for tenement flats and an amendment has been made to the tenement management scheme to permit a majority of owners to install an entry system, as a result of representations from Sarah Boyack. I am grateful to the members of the Justice 2 Committee for making those suggestions. The amendments clearly improve the bill.

The bill represents the third and final part of the Executive's programme of property law reform and follows the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003. If the motion is agreed to this afternoon, we intend that the bill will become law on 28 November, at the same time as the other two pieces of legislation. All the reforms have resulted from reports of the Scottish Law Commission and I take this opportunity to pay tribute to the commission's work. The commission carried out an exhaustive review of Scots property law in recent years, which has led to the imminent abolition—long overdue—of the obsolete feudal system of land tenure and the replacement of that system by a system of simple, outright ownership of property.

It is appropriate that I pay tribute to the work of Mary Mulligan. I think that it is obvious to members that she shouldered the burden of negotiations on the detail of the bill. I heard the many compliments that she received from members about how she conducted her work and it is clear to me that there might be something in that consensual approach to politics—perhaps I should learn something from Mary Mulligan as we conduct our work. That will be a challenge, but I promise to try.

It is also particularly appropriate to thank the team of officials who worked on the bill. There is talk in the press today of the role of the civil service and the need for reform, but I think that Mary Mulligan and I would both say that the team that Joyce Lugton led was extraordinarily professional in its work—unless there is something that we did not ask and do not know about, which might become clear in time. The team produced work of the highest standard, worked well with ministers and made every attempt to meet the needs of the Justice 2 Committee, so the officials' work deserves tribute.

This bill ensures that every tenement in Scotland will have workable management arrangements. Every tenement will have a mechanism for ensuring that necessary repairs are carried out and that owners can reach decisions on other matters of mutual interest and concern. The bill will allow many outstanding tenement repairs to proceed. It provides a robust framework in law for the management and maintenance of existing and future tenement buildings.

I move,

That the Parliament agrees that the Tenements (Scotland) Bill be passed.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 4:20 pm, 16th September 2004

Following on from what Margaret Curran said about the work of civil servants, I want to say that they have, in many instances, been maligned unfairly. I was contemplating the points that were made on amendment 22A and, on reflection, I would say that the advice of officials to the minister was correct and that my political judgment was incorrect. I had forgotten about the scenario of a transfer upon death. It may be unlikely that such a dispute would arise, but I accept that the advice given to the minister was correct and that my political judgment was wrong. We should acknowledge that the civil service does an excellent job.

It may not be a hair-shirt mentality, but we have been making a great deal of the fact that this chamber has been pilloried. However, it is now about moving on and making legislation in Scotland. It may not be earth-shattering stuff, but it is stuff of considerable importance. Without this institution, it is likely that we would only have got round to addressing these matters—in some form of consolidated act—some five or 10 years in the future. We would not have been able to address a matter that is of fundamental importance for many people. It is not earth-shattering to the economy, and it does not knock Scotland and the world off its axis, but it does make a significant improvement for many people and for the general community.

Tenements are an important part of Scottish life. They are not unique to Scotland but they are a distinctive part of life. If it was not for the tenement, our whole culture and society would not necessarily have evolved as it has. However, society has changed, which is why this legislation is necessary. There are now more student flats, not only in Edinburgh but in many places where universities and colleges have grown up. There is also the growth of buying to let. As a result, in many stairs in which a common repair is needed it is not possible for people to meet their neighbours. That is not because society has moved on and people do not interact as we did before, when people lived together; it is because people simply do not know who the other owners are, because they are absentee landlords—they are elsewhere. We have to address that problem. We have to be able to litigate properly, rather than ending up in court because there has been a stairheid rammy after people got upset. A significant amount of money can be involved.

This legislation is important. As I said earlier when we were debating the amendments, it will not necessarily take the risk out of purchasing a property. That risk will always be there. However, we must have transparency and the right to proceed when there are problems.

The minister was right to oppose the points made by Mr Canavan. We should try to resolve matters through mediation, because nobody wishes to go to court. The first stage should be to see whether everybody in the stair can meet together and agree. If that cannot be done, we should see whether there can be some formal mediation system in which some attempt at brokering can be made—with either local or central Government involvement. If that fails, we have to be able to have recourse to litigation, because substantial amounts of money can be involved.

We can never ensure that there will not be a risk of a bill being left outstanding or of absentee landlords or others not paying their share. When that happens, there will have to be litigation. However, we can ensure that people know their rights and have a clear recourse to litigation. That is why we have no hesitation in saying that we fully support this bill. I again put on record my error of judgment and my recognition that the civil servants got it right.

Photo of Annabel Goldie Annabel Goldie Conservative 4:24 pm, 16th September 2004

The Tenements (Scotland) Bill probably does not have the people of Partick raising their glasses or the folk in Auchtermuchty jigging in the streets. I did not hear from the public galleries many gasps of delight and excitement as we worked our way through stage 3. However, often what is not in gaudy colours is the substantive fabric of what matters in life.

It is important to recognise that the bill is a significant piece of legislation that, in fairness, it would probably have been difficult to find time in a Westminster timetable to pursue in the detail in which it has been pursued here. Although I may not have been a fan of devolution before 1999, I accept that one of the virtues of the system is that it enables a legislature in Scotland to give detailed attention to such bills.

I pay tribute to my colleagues on the Justice 2 Committee, who have done a commendable job in trying to understand highly technical legislation. In paying tribute to them, I also have to pay tribute to the drafting team. There must have been times when members of the drafting team wished that we would all go away for a holiday somewhere and perhaps arrange for the Justice 2 Committee to be bereft of lawyers for a while. The drafting team has taken a very technical issue, has dealt with the views that have been expressed and has done a creditable job in translating those into sensible legislative provisions.

I thank the minister for her comments about the committee and the drafting team. I certainly would not like to see the Parliament with a passive Margaret Curran in non-feisty guise. That would be a deterioration of the situation. I say to her that she should keep her pecker up and we will look forward to continuing exchanges. This may be a rare occasion on which we are significantly in agreement about a piece of legislation. It is good that we are, as the legislation will make a significant difference to property ownership in Scotland.

The amendment to section 11 was an important recognition by the Executive of something wider than just the position of a purchaser buying a flat and finding it incumbent on them to pay for repairs of which they were completely unaware. It is right that, whenever possible, the Parliament tries to recognise and uphold good principles of Scots law. There is much in our Scots law and Scottish legal system that is unique and distinctive. Perhaps more important, it works well and has worked well over centuries. The fundamental principle of buying property has been based on our registration of title system that was the envy of the world for many years. One of the cardinal principles of that was transparency—long before devolution was ever heard of—which meant that someone could go to that register and know exactly what burdens, obligations, liabilities and responsibilities went with the property that they proposed to acquire. It has been very important that that principle of Scots law has been recognised and honoured in the bill.

I hope that the bill will make a significant contribution to improving the regulation of arrangements for those who live in tenement properties and properties of the type defined in the bill. It is a good, solid step forward. As Kenny MacAskill said, there may be technical aspects that we have not got right or aspects about which only time and practice will tell. However, one of the features of the Parliament—especially in its committee system—is its review of legislation. That may be a legitimate task for us in future.

I commend the bill, which will certainly have the support of the Conservative group.

Photo of Mike Pringle Mike Pringle Liberal Democrat 4:28 pm, 16th September 2004

I congratulate the civil servants and the drafting people who must have had an extremely difficult time in compiling the bill. It is very technical. As the minister said, it is the third part of the jigsaw, and it is great that it is going to become law as soon as November. It will make a difference.

During committee proceedings, we dealt with things called pertinents. I had never heard of a pertinent before. There was also considerable discussion of such things as chimney stacks, flues and water tanks. At one point, another member of the committee said to me, "I've heard enough about chimney stacks, flues and water tanks." It is technical; however, the bill will allow a modern system of management and maintenance to develop in tenements. In my constituency we have a large number of tenements, and I agree entirely with what Sarah Boyack said. People have approached me many times with problems about door entry systems, not being able to find owners and not being able to proceed with a repair because of the lack of unanimous agreement throughout the stair.

One of the major aspects of the bill is the fact that, if a group of people in a stair forms a majority, they will not need to worry about owners of whom they cannot get a hold. I remember one case in which an owner lived in Ceylon and there was no way in which the stair could get a unanimous decision, so the problem dragged on and on over years and years. I remember another instance in which pretty well everyone in a stair was in agreement about getting repairs done—they were major repairs; underpinning of the property was needed. There were 16 owners and only one owner refused to have anything to do with the repair work. The result was that the council eventually took over the repair works and the matter went on for a number of years. That set of repairs on the tenement was never completed because of the intransigence of one person, but that will simply not happen in future. That is one of the key aspects of the bill, and it will bring huge benefits to many people who live in tenements.

Where title deeds are defective, the bill will address the problem. Again, my experience tells me that that is a very welcome addition. If the title deeds are deficient, the tenement management scheme will rule, and there will be no problem.

The one contentious issue, to which I referred earlier, was purchasers' liability. When the bill was introduced, perhaps the minister, civil servants and draftsmen had not appreciated the problem. The committee decided unanimously to address it, and the minister listened. The matter involved one or two small technical difficulties at one point, but those have been resolved and the minister has introduced amendments on the matter. I am delighted, because those amendments will have huge benefits to huge numbers of my constituents.

I agree entirely with the comments that Annabel Goldie and Kenny MacAskill have made. I welcome the bill. There is no doubt that, as the minister has said, it will become law quickly, and that is a great advantage to many people who live in tenements.

Photo of Karen Whitefield Karen Whitefield Labour 4:32 pm, 16th September 2004

I welcome the passing of the Tenements (Scotland) Bill, which concludes the Executive's programme of property law reform, following the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003. The bill, which followed from the recommendations of the housing improvement task force, ensures that Scotland now has property law fit for the 21 st century.

I, too, add my thanks to all who were involved in the passage of the bill, especially our committee clerks. Not every member of the committee had the detailed conveyancing knowledge that our convener did, and our clerks' advice was invaluable. I would also like to say a special thanks to the minister, Mary Mulligan, who was always happy to engage with the committee and committee members to discuss our concerns and find ways to address them.

The bill aims to ensure that basic repair and maintenance work is carried out in tenemental properties and it seeks to protect those who are willing to pay for such work by placing legal responsibilities on all owners in tenemental properties. The bill, as amended today, will achieve those aims and will help to protect a large number of properties throughout Scotland.

The introduction of tenement management schemes will provide a safety net where title deeds do not clearly set out joint repair and maintenance responsibilities. At the beginning of our deliberations on the bill, I believed that the TMS should sweep aside all existing title deeds, as the housing improvement task force originally suggested. However, it is now my belief that the Executive was right not to do that and that the scheme as proposed offers greater protection and flexibility.

I am pleased that the Executive was able to respond to the concerns that the Justice 2 Committee raised during stage 2. The amendments that the Executive has lodged are reasonable and sensible responses to those concerns. In particular, the amendments on purchaser liability for work that has been done strike the right balance between the need to protect a purchaser's interest and the need to protect other owners in a tenement. I also welcome Executive amendment 29, which removes the requirement to use a common insurance policy and gives tenement owners greater flexibility. That will ensure that owners are not required to overturn the way in which their tenements are insured.

I know that many colleagues sympathised with the intention in Dennis Canavan's amendment 79 to create an ombudsman for tenements—who could fail to be moved by his constituents' experiences?—but it is right to give the Executive time to research best practice in mediation, to ensure that any schemes that are introduced are meaningful and effective.

I welcome the Executive's amendments to allow tenement owners to install door-entry systems by a majority vote. It is right that improvements should require a unanimous vote of tenement owners, as they are a matter of choice rather than necessity. However, secure entry systems benefit an entire tenement and could protect a building's fabric. My colleague Sarah Boyack brought that important point to the Justice 2 Committee's attention and we are all aware of how pleased she is with the Executive's moves on the matter.

Many of the laws and practices that are reformed by the bill, and by the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003, were hundreds of years old. For many of those years, Westminster had neither the time nor the willingness to modernise those practices. Devolution has ensured that Scotland has a set of property and land laws that was created in and designed for life in 21st century Scotland. That is exactly why the Parliament was created. I am pleased to support the bill's passing.

Photo of Colin Fox Colin Fox SSP 4:37 pm, 16th September 2004

I put on record my support and that of my party for the bill—there goes anybody's last hope that the cosy consensus would be shattered.

I, too, am a member of the Justice 2 Committee, which scrutinised the bill. I welcome the efforts in the bill to set a uniform clear standard for title deeds and instructions to tenement owners on common repairs and maintenance. The bill makes several welcome proposals to clarify liability for costs and repairs for tenement owners and especially for new tenement owners.

I also welcome the tightening of obligations on owners and the clarification of the meanings of many liabilities. As Karen Whitefield said, a big part of the bill is the tenement management scheme, which I welcome.

I broadly welcome the bill. I was glad that the minister took on board—not only in her remarks today but in her conversations with the committee—many of the amendments that were produced as a consequence of the committee's scrutiny of the bill.

I acknowledge that the bill is the third part of the property and land reform legislation that the Parliament has passed. It is a fair point that the bill, along with the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003, would in all likelihood not have been passed in the Westminster Parliament; that underlines this Parliament's purpose.

I concur with other Justice 2 Committee members in thanking the committee clerks for helping us to understand a complicated bill. It remains to be seen how the bill will work in practice, but I hope that it creates benefits for tenement owners throughout Scotland.

Photo of Trish Godman Trish Godman Labour

I would be grateful if members were slightly quieter than they have been.

Photo of Patrick Harvie Patrick Harvie Green 4:39 pm, 16th September 2004

It is a pleasure to add the Green party's voice in support of the bill at stage 3. The bill develops the Executive's property law reform programme and is a significant step forward.

The reforms have been widely welcomed. Like others, I congratulate the Executive, the Justice 2 Committee and the Scottish Law Commission on their work to bring the bill to its current stage.

The Green group of MSPs supports the policy intentions of the bill and the measures in it. Given that tenements represent more than a quarter of our housing stock—a much higher proportion than in other parts of the United Kingdom—the bill will impact on many people, including those who were mentioned by the minister who live in other types of buildings that we do not usually associate with tenements, and which will be covered. The bill will ensure that they benefit from a system of management and maintenance. I hope that that means that we, as MSPs, hear fewer complaints and calls for help from residents who are having difficulties in resolving issues related to repairs and improvements. In Glasgow, 60 per cent of residents—my good self included—live in tenements and all members will be aware of such issues being brought to us.

Some tenement properties are among the best housing that we have to offer, but others are among the worst. If they are kept in good condition and there is a sense of community and friendship among the residents, tenements offer a terrific way to live and one that probably has a lot to say about the future, not just the past, of housing in Scotland. Such good cohesive community spirit still exists and there is much that we can do to encourage it.

As I say, the bill has received widespread support and has created a sense of hope for the slightly more ambitious ideas that could perhaps show up in the forthcoming housing bill. I hope that the minister is aware of some of the ideas that it was perhaps inappropriate to include in a tidying-up bill, but which many individuals and organisations hope to see in the housing (Scotland) bill for when we come to consider it.

I end by saying that I am very pleased to support the Tenements (Scotland) Bill today, and that I am very hopeful for an ambitious housing bill in the future.

Photo of Mary Mulligan Mary Mulligan Labour 4:42 pm, 16th September 2004

I start by adding my thanks to those of other members: first, to the committees of the Parliament who have scrutinised the bill, and secondly, to the members who have participated in the debate. I also add my thanks to the bill team who have supported me and responded appropriately to the committee. They supported me even when I changed the order of the amendments—just to check whether anybody was paying attention.

I will pick up on a couple of points that have been made in the closing speeches this afternoon. I recognise that, good though the bill is, other issues still need to be examined. One of the issues that was raised by Kenny MacAskill and others centres on absent owners. Although we have partly addressed that issue through the amendments that Cathie Craigie introduced to the Antisocial Behaviour etc (Scotland) Bill on identifying absent landlords and establishing a register of them, I acknowledge that not every absent owner is a landlord, and so is therefore not necessarily encompassed within the register. We are therefore committed to consulting during the lead-up to the housing bill on how we could identify those who are owners but not landlords, in order to ensure that they have a say in the work that needs to be carried out on the tenements, thereby ensuring that our tenements are properly maintained and managed.

As has been said, the bill has been a model for how Parliament is supposed to operate. A full and detailed consultation process was conducted by the Scottish Law Commission, which produced the original draft of the bill, and the Executive then issued a consultation paper on which a wide variety of people commented. A considerable number of meetings were held with stakeholders and all the points that were raised were thoroughly considered. That was all informed by the work of the housing improvement task force, so the ground was well prepared before the bill was introduced in January.

The main policy issues were then carefully and thoroughly considered by the Justice 2 Committee and the committee's stage 1 report demonstrated the degree of consensus that exists around the bill. As members will have seen this afternoon, many of the points that were raised by members during consideration at stage 2 have reappeared as Executive amendments at stage 3. We believe that those amendments and the detailed stage 2 discussions have strengthened the bill. Like Mike Pringle, I remember the many details about chimney stacks and water tanks—they will live with me for some time to come.

As many members have said, this afternoon we have been able to appreciate the value of having a Scottish Parliament. Even Kenny MacAskill's comments about the advantages of having the Parliament show that the work that we do here is making a difference to the people of Scotland. Perhaps that will persuade Kenny MacAskill to rest with the will of the Scottish people, which is the Scottish Parliament as we have it today.

Photo of Mary Mulligan Mary Mulligan Labour

Well, I must.

After the bill is passed this afternoon, it will become an act that will make a real difference to the many Scots who have lived, currently live or will live in the tenements. I commend the bill to Parliament.