17. January 2011 · Comments Off on Long Leases (Scotland) Bill II · Categories: Common Good, Edinburgh, Land Rights, Legal affairs, Long Leases Bill

I will be in Parliament tomorrow (Tuesday 18 January) giving evidence to the Justice Committee on the Long Leases (Scotland) Bill. I will be seeking to exempt common good land from the provisions of the bill which allows for all land held on a lease of over 175 years and with over 100 years left to run to be converted automatically to full ownership.

The case which inspires my interest in this is that of the Waverley Market, referred to in a previous post. I remain of the view that this land forms part of the Common Good of the City of Edinburgh but, in their evidence (available here at LL5), the Council continue to refute this. What is interesting about the Council’s evidence is that it contines to avoid specifying the precise legal grounds, either statutory or derived from case law, upon which its position rests. Attempts are underway to find out what these grounds are but until they become clear, I have good authority for my assertion that the site is common good.

The Council’s argument (which is laid out plainly in their evidence) is that because it was a fruit and vegetable market, hence it was common good. Accordingly, in 1938, when it ceased to be a market, it ceased to be common good.

My argument is that the market has nothing to do with this. The site became part of the common good as a consequence of being acquired by the Common Good Fund as part of the land assembly for the New Town in the late 19th century. Furthermore, markets were speficially removed from the common good by Section 145 of the Edinburgh Corporation Act 1967 (by which time Waverley Market was no longer a market). This highlights my argument that common good status can only be removed by statute, by court order, or by selling the property outright to a third party.

Incidentally, what really happened in the 1930s was that the Edinburgh Corporation Act of 1933 provided that all market rights (which were held by citizens and gave them legal rights to take their produce to market) would be abolished if and when the market was closed. It was then closed and moved in 1938 which is the point at which the Council claims that the common good status disappeared. In fact, all that happened was that it ceased to be a market and was still common good (and is referred to as common good in a later Act of 1950).

Despite the specific disagreement over the Waverley Market, I welcome the fact that the City of Edinburgh Council support the exemption of common good land from the provisions of the Long Leases Bill. They also argue for an exemption for where the grassum (an initial payment on a long lease) divided by the term of the lease is over £100. This matches the existing exemption for all commercial leases with an annual rent of over £100. This suggests that such a situation applies to the Waverley Market but I do not know since I have not seen the lease for a long time.

07. January 2011 · Comments Off on Long Leases (Scotland) Bill · Categories: Common Good, Edinburgh, Land Reform, Land Rights, Legal affairs, Poor had no Lawyers

I have today submitted written evidence to the Scottish Parliament’s Justice Committee on the Long Leases (Scotland) Bill. It focusses on the impact the Bill will have on common good land.

Those following this matter may also be interested in this extract from the papers presented at the 11 January 2001 Justice Committee meeting which contains a dismal letter from Fergus Ewing, Minister for Community Safety and a good analysis of the links between the Bill and common good prepared by Scottish Parliament Information Centre.

Earlier post on this topic here.

Yesterday, the Scottish Government published its draft Long Leases Bill which is designed to convert any lease of over 175 years (with at least 100 years left to run) to full ownership. This follows a consultation earlier this year (responses here) which, in turn, followed a report from the Scottish Law Commission on the topic (Report No. 204 on SLC website).

The evidence of the existence of long leases was derived from the Land Register in a survey of only four counties. It is not surprising, therefore that it did not pick up on the important issue of leases of common good property, most of which are in the Register of Sasines. Common Good land will often have been let on long leases as an alternative to sale to get over the problem of inalienability.

I drew this problem to the attention of the Government in June 2010 but it is clear from the Policy Memorandum (see link to Bill above) that they have declined to take my concerns on board although they have decided to amend the bill to exclude all leases of over £100 per year.

What this means is that the Waverley Market in Edinburgh (pictured), a part of the common good fund of the City of Edinburgh, which is currently let on a 206 year lease to a company owned by David Murray for 1p per year will become his automatically without him paying anything for it. The Common Good Fund of the City of Edinburgh will then have lost an asset worth about £50 million.

The Scottish Government knows this (see my response in link above) and thus we now need to mobilise effort to amend this in Parliament. Remember, that this may well affect common good property across all of Scotland’s 196 burghs.

The story of this scandal is told in Chapter 24 of my new book, The Poor Had No Lawyers.

UPDATE Fri 12 Nov – Scottish Parliament Justice Committee to discuss how to deal with this bill at its meeting of 16th November (see papers for meeting). Officials are proposing a 5 week consultation to 31 Dec (half the normal 12 week minimum recommended). They regard this as a “technical” bill. Clerks express some doubt as to whether the Parliament has the time to complete the pasage of the Bill before it dissolves at end of March.