Community Empowerment (Scotland) Act 2015: asset transfer guidance for community transfer bodies
Guidance for community bodies on the statutory asset transfer scheme.
16. After Agreement
Community Transfer Body's Offer
16.1. Section 83 of the Act sets out the next steps after a relevant authority has issued a decision notice agreeing to an asset transfer request. The same process applies whether the request was agreed to initially or following a review or appeal.
16.2. In response to the decision notice, the community transfer body must submit an offer to take ownership of the land, lease it or take up the rights covered by the request. You must do this by the date stated in the decision notice, which has to be at least 6 months from the date of the decision notice. Your offer must reflect the terms and conditions set out in the decision notice; if those terms and conditions are significantly different from those included in the request, and are not acceptable to the community transfer body, they can appeal or request a review (see chapter 17). The offer can also include other reasonable terms and conditions that may be needed to make sure the transfer goes ahead within a reasonable time.
16.3. As you are seeking a transfer of ownership or other rights in land, you will probably need to engage a solicitor (if you haven't already) to advise you about the terms and conditions proposed by the relevant authority, and to represent you in negotiating the contract.
16.4. You can continue to discuss your proposals with the relevant authority while preparing your offer. This is also the time to be confirming applications for funding and making other preparations, now that you have agreement to your request.
16.5. If you do not make your offer by the date set by the relevant authority (and you have not appealed or requested a review in relation to the terms and conditions), the process is at an end. The relevant authority's agreement to transfer the property to the community transfer body has no further effect, and the authority is free to keep it or dispose of it as it wishes.
16.6. Of course, there is no need to wait until the date set to submit your offer. It can be done as soon as you are ready, and may take much less than six months in straightforward cases.
Conclusion of contract
16.7. Once the community transfer body has submitted an offer, there can be further negotiations with the relevant authority to conclude the contract. If the request is for ownership or lease this will be like any other property transaction, with exchanges between lawyers to agree the final wording, although for other rights the process may be simpler.
16.8. The contract must normally be concluded within 6 months of the date of the community transfer body's offer. This does not mean the transfer has to take place within that time, but the date for the transfer, the price or rent and any other terms and conditions must be agreed. The contract may be conditional on other factors that are needed to allow the community proposals to go ahead, such as confirmation of funding or planning permission.
No contract concluded
16.9. If no contract is concluded within 6 months of your offer, and no other action is taken, the process is at an end. The community transfer body has no further claim on the property, and the relevant authority can keep it or dispose of it as they wish. Sometimes this is by mutual consent - perhaps circumstances change, or things don't come together in the way you hoped, and the only sensible option may be to walk away. However, if you are approaching the 6 month deadline and you think there is still progress to be made, you must take action. The community transfer body is in control at this point.
16.10. There are three options available to keep the asset transfer request going beyond 6 months after the offer date:
- agree an extension with the relevant authority,
- apply to the Scottish Ministers for an extension, or
- appeal to the Scottish Ministers, under section 83(6) to determine the terms and conditions of the contract, which the relevant authority can be required to accept.
16.11. An application to the Scottish Ministers for an extension must be made between 6 weeks and 4 weeks before the end of the 6 month period. You should try first to agree an extension with the relevant authority, so you should start discussing that in good time - around 4 months into your negotiations. If the authority is willing, the extension can be agreed at any point, and need not be used if the contract is concluded sooner than expected. There is no limit on how long the extension may be, but there must be an end date.
16.12. If you reach the end of the period, either the original 6 months or an extended period, and no contract has been concluded, the community transfer body can appeal to the Scottish Ministers. This must be done within 10 working days of the end of the period. (This is short, but it is expected that by this time you will have a clear idea of what you want in the contract.) Procedures for making an appeal are set out in chapter 21.
Application to Scottish Ministers for an extension
16.13. The community transfer body can apply to the Scottish Ministers for a direction to extend the time allowed to conclude a contract in relation to an asset transfer request. The community transfer body must make its application between 30 working days (6 weeks) and 20 working days (4 weeks) before the end of the period of 6 months from the date of the community transfer body's offer.
16.14. The application for a direction must include the following information:
A. the name and contact address of the community transfer body
B. the name and contact address of the relevant authority
C. the land to which the asset transfer request relates
D. a statement setting out details of the steps taken by the community transfer body and the relevant authority
(i) to conclude a contract on the basis of the community transfer body's offer, and
(ii) to agree to an extension to the period to conclude a contract.
E. the community body's reasons why a direction should be given
F. the period which, in the community body's view, should be specified in the direction
and must be accompanied by:
G. a copy of the decision notice issued in respect of the asset transfer request
H. a copy of the community transfer body's offer.
A, B, C - names and addresses, and the land to which the request relates
16.15. This information is simply to identify the asset transfer request and provide Scottish Ministers with the necessary contact details.
D - statement of steps taken
16.16. The Scottish Ministers will want to understand why the community transfer body and the relevant authority have not yet been able to conclude a contract, and why they have not agreed to an extension. This section should outline the correspondence and meetings which have taken place and any action taken to address particular concerns in relation to the contract. If external factors such as securing funding or planning permission have an impact on the timing, these should be explained. You should also set out how you have approached the authority to seek an extension of the time limit, and their response.
E, F - reason for making a direction, and period requested
16.17. You must explain why you think Ministers should issue a direction to extend the period, and how long that extension should be. This should show why you believe it is still possible to agree a contract with the relevant authority, how any outstanding issues can be addressed, and how long you expect that to take, taking into account any external factors or processes that have to be completed.
G, H - copy of decision notice and offer
16.18. These documents will help Ministers understand the main issues to be included in the contract. The latest version may be attached under D, if you feel this is helpful.
Relevant authority's response, and decision
16.19. At the same time as making the application to the Scottish Ministers, the community transfer body must send a copy of the application to the relevant authority. They have 10 working days to send any comments to the Scottish Ministers and the community transfer body.
16.20. Having considered the application and any comments made by the relevant authority, the Scottish Ministers will decide whether or not to make the direction as requested. The direction will be copied to both the relevant authority and the community transfer body, and will state the period within which the contract must be concluded.
Email: Jean Waddie
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House
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