11. Suspension of rights over the land
The Scottish Government considers that the following rights, if they were to be exercised, may prevent a Part 3A application from being properly considered. Therefore it is considering whether to suspend some or all of these rights whilst a Part 3A application is being considered by Ministers. Any suspension of rights will be lifted on a date as listed under section 97N(1)and 97N(3) date of prohibition and suspension of rights above:
- Pre-emption rights, except those arising from option agreements, which allow a party to purchase property if the landowner sells that property;
- Redemption rights and reversion rights which give another party the right to take back property from the owner at any time, not just when the landowner sells the property;
- Rights deriving from any option to purchase which apply where parties have agreed that land may be sold by the owner to a prospective purchaser, either at some point in the future or only if certain circumstances apply (e.g. obtaining planning permission);
- Any right of pre-emption granted under Part 2 of the 2003 Act;
- An asset transfer request made under Part 5 of the 2015 Act.
Question 9: Do you agree with the above proposals?
There were seven responses to this question. Four were in agreement and three were not.
Question 9a: If not, please explain
There were three responses to this question.
Community Land Advisory Service considered that the suspension of rights might not be within scope of the powers in the Act. It believed that any suspension would not be enforceable against the community body (as the Act does allow for this) and would be lost if the community gained ownership; the former owner could be found in breach of contract.
Scottish Land & Estates and another respondent appreciated the logic of suspending rights. However, they thought that the proposals were unclear, particularly when comparing some rights against others. Both provided detailed examples to illustrate their point.
Question 9b: Are there any other rights that you believe
should suspended? If so, please give details
There were four responses to this question. However, three respondents stated that they had no other examples to add.
The final respondent stated that practical commercial issues should also be considered in order to prevent arbitrary results.
Question 9c: Are there any of these rights that you believe
should not be suspended?
There were four responses to this question. One respondent stated that it had no suggestions, while another two referred to their previous answers.
The final respondent suggested that there was no need for a right of pre-emption under the Community Right to Buy in Part 2 of the Land Reform (Scotland) Act 2003, or an asset transfer, to be on the list.
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