4 A classification of land ownership barriers
This section presents a classification of landownership barriers to community land-based activities within which there are seven distinct categories. These relate to deficiencies in ownership rights (two categories), land owner behaviour (three categories), external factors affecting communities (one category), and finally internal factors affecting the behaviour of communities (one category).
The classification scheme draws heavily on the framework proposed by Adams et al. (2001) but is extended in three ways. First, as discussed above, community land based activities may not require outright ownership but lesser rights being transferred from landowner to community. This is reflected in the framework. Second, the classification scheme is intended to reflect ownership barriers in both rural and urban contexts as opposed to the urban regeneration context in which Adams et al.'s framework was developed. Finally, the scheme recognises that there may be barriers arising from a community's lack of desire and/or capacity to secure land or land rights even if they are available. An overview of the classification scheme is provided in Table 2. Each type of barrier is described in detail below. Again the description of the barriers relies heavily on Adams et al., (2001) but links the discussion to the wider land reform agenda.
Although each barrier is distinct in nature, it was clear from stage 2 of the study (based on interviews with key informants) that community developments could be constrained by more than one barrier, sometimes sequentially, but often simultaneously. Indeed in 40 of the 75 case studies, more than one barrier to community activities was identified. For example, a lack of information on ownership was often an initial barrier, but overcoming this barrier did not then mean that other barriers did not subsequently arise. Similarly, there were obvious links between certain categories of barriers with, for example, owner unwillingness to sell or lease land often conflated with issues of ownership rights being divided. Likewise, community concerns in relation to liabilities were often a direct result of characteristics of the land tenure system. Despite this complication, we consider the classification scheme as a useful means of highlighting distinct constraints to community land-based activities, each of which may require different means of resolution through negotiation, regulation or policy.
The conflation of different barriers means that it often takes considerable time for communities to secure land rights. This in itself can be a barrier to developments as it increases the risk of a reduction in community capacity for any particular development and also it increases the likelihood of a sale to an alternative buyer. However there is a counter argument that time helps to ensure that the rights that are transferred are appropriate and the transfer takes place in a manner which meets the needs of all parties.
Categories of barriers
Deficiencies in ownership rights
A. Ownership unknown or unclear
A.1 Information on title deeds are incomplete, missing or difficult to access
A.2 Ownership in dispute
A.3 Owner lacks legal capacity (including executors/administrators)
B. Ownership rights divided
B.1 Land held in Trust [functionality of Trust]
B.2 Land subject to leases or licences [or subordinate real rights]
B.3 Land subject to mortgages or other securities
B.4 Land subject to restrictive Title conditions/real burdens
B.5 Land subject to servitudes or rights of way
B.6 Land subject to options or conditional contracts
C. Assembly of ownership required
C.1 Ransom strips
C.2 Multiple ownership
D. Unacceptable terms
D.1 Restrictive terms of conditions of sale/transfer of lesser rights
D.2 Different valuations
E. Owner unwilling to sell or lease land
E.1 Retention for continued current use (includes for occupation/investment/making available to others on non-profit basis)
E.2 Retention for control or protection/conservation
E.3 Retention for subsequent own development
E.4 Retention for subsequent sale (due to indecision, postponement, uncertainty or speculation)
External factors affecting communities
F. Structural barriers facing communities
F.1 Inability to raise funding
F.2 Regulations and limitations to advisory support
F.3 Lack of legitimacy
Internal factors affecting communities
G. Community constraints and decisions
G.1 Potential liabilities of ownership disproportionate to community benefits
G.2 Differing community aspirations
G.3 Lack of community capacity
G.4 Lack of willingness to engage with landowner
A Ownership unknown or unclear
Information on land ownership in Scotland is available in the General Register of Sasines, but the information held is often highly complex and costly to access. The Land Register provides another source of information on ownership and property boundaries, but it is a relatively new initiative with properties only included if a transaction has taken place since 2003 or information has been provided voluntarily. To date, 58% of properties in Scotland are registered with these properties accounting for just 28% of Scotland land mass (Land Reform Consultation document, 2014). The Scottish Government, acting on the recommendations of the Land Reform Review Group (2014), has a commitment to complete the register within a 10 year time frame, starting with registration of all land in public ownership. However, some argue that the information will still fall short of that required and available in some other countries in the form of cadastral maps.
While the lack of information on land ownership is problematic for all potential purchasers and/or land users, it creates particular difficulties for community groups who may not have an experience in the land market. In particular it can create uncertainty and a feeling of disempowerment. It is thus a clear barrier to community land-based activities and may inhibit actions being progressed past their very early stages of conception. However, whilst this was a frequently mentioned barrier by key informants and appeared in several case studies, it was often surmountable given appropriate time and support (e.g. legal advice, financial support, expert help with land registry search, etc.).
B Ownership rights divided
Land ownership is in effect the ownership of a bundle of rights and entitlements in relation to the use of land. Each of these may be traded separately. As a result a community land-based activity may be inhibited by an inability to acquire a particular property right.
The division of land rights and associated barriers comes in various forms. Land may be held in trust (with all trustees having to agree to any proposed change in rights), or may be subject to leases or licences which inhibit any transfer of rights until the lease or licence is surrendered or expires. Case studies described by the interviewees included delays encountered whilst agreement was sought from all members of a landowning Trust, as well as the delay imposed on community land acquisition by leases. Interestingly, in the urban context, Adams et al. (2001) found that leases and licenses were the most prevalent form of disruption to the development of brownfield developments but that, in this context, their impact was limited due to their short term nature and/or the fact that tenants were often willing to surrender their rights in return for cash payments.
The case studies highlighted several other types of barriers within this category including: pre-existing options on a piece of land (from other potential developers) which can stop a transfer of rights taking place; land may be subject to servitudes (for example, rights of way or rights of light); mortgage agreements or legal charges that serve as loan collateral or, finally, land may be subject to title conditions or real burdens put in place by an original vendor which restricts the type of use that can take place. Such conditions can restrict, for example, commercial or industrial use of land in a scenic or residential area, effectively prioritising a particular type of land use over any other.
In the context of the land reform debate, real burdens have been highlighted as a potential barrier to several rural community land-based activities on land owned by charities. For example, in their response to the LRRG's call for evidence, the National Trust for Scotland pointed out that the Trust is responsible for overseeing Conservation Agreements, put in place by owners to safeguard aspects of natural or cultural heritage. These agreements transfer with the property. Similarly, the RSPB's submission to the same call noted that, as a charitable organisation, "it is a requirement of charity law that assets (including land) are managed for the furtherance of the charitable objectives. Environmental protection or improvement, as well as education, science and volunteering are all charitable purposes recognised by Scottish charity law."
C Assembly of different ownership or user rights required
Depending on the nature of the proposed community-land based activity, land ownership or rights may be divided across more than one individual. This requires the community getting agreement from all concerned individuals which is costly and can be difficult, with the last owner able to exert monopoly powers.
In their work on brownfield developments, Adams et al., (2001) found problems of assembling rights across multiple owners was found to be the most difficult barrier to overcome, resulting in significant or very significant disruptions in 85% of the cases where this barrier was identified. The case studies described by the interviewees in this study also included examples of community development delays caused by multiple ownership.
As previously noted, larger scale developments or developments of a linear nature (e.g. paths/cycle ways) are more likely to require the assembly of user rights and there are several well publicised examples where community-led developments have apparently been blocked by the decisions of a single or few land owners.
A particular type of barrier associated with the need to assemble property rights across individuals is the presence of ransom strips, that is small areas of land incapable for development in isolation but essential to the overall proposed development or activity on adjacent land. The interviewees highlighted case studies where this was an issue in terms of securing grid access for community renewables, as well as access to proposed sites for affordable housing, community parks, new community halls, and community woodlands (e.g. vehicular access to forestry track to remove timber). Key informants suggested that in some cases ransom strips may be strategically purchased by or retained by land speculators. From a community's perspective the demands of ransom strip owners can represent an insurmountable barrier to a planned activity. Provisions in the Community Empowerment (Scotland) Act 2015 are expected to have a role in addressing this type of barrier.
D Unacceptable terms
This form of barrier occurs when the landowner is willing to either sell or lease land but not on terms acceptable to the community. This may be due to restrictive terms of the conditions of sale. For example, in the context of urban regeneration, Adams et al. (2001) note that Local Authorities are often reluctant to sell the land outright and instead restrict disposals to long leaseholds which may or may not meet community (or community funder) aspirations. However the most frequently occurring reason for disagreement identified by the interviewees was large differences in the valuation of land by the buyer (community group) and seller (landowner). Every property (land and associated buildings) is unique and the land market relies heavily on valuations provided by surveyors. Changes in the macroeconomy can affect the supply of and demand for properties and their market value, as well as the lending criteria of funders. As a result properties are often on the market for considerable periods of time and there can be a mismatch between the valuation given to landowners when the market was buoyant and the price offered by buyers at a different stage of the property cycle. In such circumstances, sellers are often reluctant to adjust their expectations downwards, and sale price expectations remain high, as described in the interviewee case studies. Even beyond these market related problems, the valuations provided by surveyors can vary as a result of differences in their assessment of the condition of the property, its potential for generating income, and choice of comparables (that is the price recently fetched for properties considered similar to that under consideration).
One particular issue raised by key informants which relates to this barrier is the consequence of a property being granted planning permission for a particular use at a particular point in time. This significantly increases the value of that property to the landlord and can place it out of the reach of funding available to the community.
This highlights a more general point on the interdependency between land ownership barriers and land use planning. The nature of the planning system is such that it can generate rent seeking behaviour whereby land owners hold land and either apply for planning permission (and extensions) or object to other proposals for planning in order to increase the value of the land (Adams et al., 2001; Keogh, and Evans, 1992). The more flexible the planning regime, the greater the possibility that planning may indirectly act as a barrier to community land-based activities through the incentives it gives to landowners.
E Unwilling owner
There are various reasons why a land owner may be unwilling to sell land or surrender lessor rights to a community:
1) Retention for continued current use
2) Retention for control or protection
3) Retention for subsequent (own) development
4) Retention for subsequent sale
The first three reasons are more likely to be associated with the behaviour of industrial and former landed property owners types identified in section 3 as opposed to owners whose main purpose is to hold land as an investment asset. In contrast the fourth reason (retention for subsequent sale) is equally applicable to all land owner types. Such behaviour may be due to speculation (based on the assumption that by postponing the transfer of rights, a better a higher value may be achieved) or simply land owner indecision and uncertainty.
The key informants identified several examples of case studies where it was difficult to explain a landowner's unwillingness for sale. In some cases, this was attributed to a lack of willingness of a landowner to engage with communities in negotiations. In urban contexts, the lack of any identifiable reason for unwillingness to surrender property rights has been labelled "corporate inertia" and is argued to disproportionately affect small plots of urban land owned by organisations who overall have extensive land holdings but whose main business or interest is not in land or property (Adams et al., 2001).
In rural areas, problems associated with owner unwillingness have often been linked to the issue of scale of ownership. Large areas in rural Scotland are owned by relatively few people. As a consequence, a lack of support for proposed community land-based activities by a single land owner can have disproportionate local impacts. As MacGregor notes (1993), in relation to rural land use:
"In many areas of Scotland, large land owners play a crucial role in local development: they are the rural planners."
F Structural barriers facing communities
The case studies highlighted some barriers to community land based activities which could be considered structural in so far as they relate to the external environment within which communities operate. In this way they are distinct from the barriers categories described under section G below which relate to internal community characteristics or decisions. In particular, the interviewees highlighted the following three categories of barriers to community land based activities:
- Inability to raise required funding
- Limitations to advisory support
- Lack of legitimacy
The current policy agenda favours asset transfer to communities with some community funders (e.g. The Big Lottery Fund) making asset ownership a condition of funding. This means that the level of funding sought by communities is often high and may be beyond that possible for the community to raise (e.g. above the limit for Scottish Land Fund grant funding). The issue is not only related to the level of funding: A number of funders (including, for example, the Coalfields Regeneration Trust) refuse to provide support for projects on land owned by the public sector on the basis that the development should be funded through the public sector owner and that the public sector would benefit from the support. While the logic of this is clear, this approach can inhibit community activities from stimulating change.
Another reason identified by the informants as a barrier to community activities is the level of advisory support available, particularly at critical stages of the development process (e.g. during Local Development Plan reviews or when managing opposition). In particular, advisory and funding support for the alternative of leases and management partnership arrangements is not well developed. A further related issue is that advisors may not be approached by the community in time to negotiate secure land access for community land-based activity.
Finally, community groups may suffer from a lack of legitimacy which discourages landowners from selling or leasing property rights to the group. This may be because landowners consider potential income flows from community projects as more risky than from other proposed purchaser/users or it may be due to perceived reputational problems should the community group subsequently fail in its ambitions. The key informants suggested that this was a particular issue for public sector landowners due their accountability to wider communities and tax-payers. In general, established community groups are recognised as having greater legitimacy due to the timescales required in building community capacity and reputation.
G Community constraints and decisions
The final category of barrier to land-based activities relates to the ability and willingness of communities to take on the responsibility of land ownership.
The alternative reasons for this category of barrier are:
- The potential liabilities of ownership are disproportionate to community benefits
- Differing community aspirations
- A lack of community capacity
- Lack of willingness to engage with landowner
In relation to the first, when the liabilities associated with owning the land become clear, a community may withdraw from a development even if the landowner is happy to surrender ownership rights. Another, more straightforward example of disproportionate liabilities identified in the case studies was where the scale of land for sale/lease exceeds that required by the community group and the landowner is, for financial reasons, unwilling to break the sale into smaller lot sizes.
Several of the informants highlighted case studies where different opinions within a community either delayed or inhibited community activities. Different aspirations within a community may relate to the perceptions of community priorities (e.g. affordable housing versus allotments), and/or their level of reliance on communal activities (i.e. contributing to community capacity rather than individual interests). Alternatively, they may arise from differences in opinion about a community's capacity and skills base.
Turning to community capacity, a growing number of studies have shown that this varies considerably both across and within rural and urban areas (Skerratt, 2013; Middlemiss and Parish, 2010). The issue is attracting strong policy attention and there is considerable government support for mechanisms which can spread best practice and increase community capacity in areas where need is greater. It remains the case, however, that even if a landowner is willing to transfer property interests, the community may not be aware of opportunities, processes or funding streams, or may not be willing or able to take on the associated responsibilities. The key informants described communities who were willing, but unable to progress land-based activities due to lack of further volunteer time (i.e. beyond existing community activities).. Thus there are potentially demand-side ownership barriers which may inhibit community activities, as well as interdependencies between the two sides (demand and supply).
Finally a barrier may be associated with a lack of willingness of a community to negotiate with a land owner, at times due to personality clashes. Some key informants suggested that this was associated with the community's unwillingness to consider anything less than outright ownership of land.
Email: Richard Murray