Register of Applications by Community Bodies to Buy Land

General

It is a general application condition in terms of section 22(1)(c) of the Land Registration etc. (Scotland) Act 2012, that an application for registration must not fall to be rejected by virtue of a prohibition in an enactment. In terms of section 23(1)(b) for a disposition or notice of title inducing first registration, and section 26(1)(a) for registrable deeds submitted as dealings or transfers of part, the registrable deed must be valid. 

Further, in terms of section 21(2) and (3), to the extent that an applicant does not satisfy the Keeper that the general application conditions, and the conditions of registration applying to specific application types are met, the Keeper must reject the application for registration. 

Once an application is received and the details appear on the RoACBL, then a prohibition is placed on the owner of the land in the application. This prohibits the owner from transferring the land or taking action with a view to transfer the land. A disposition in breach of this prohibition is of no effect, that is, void.

 Points to note about RoACBL

• RoACBL is kept by the Keeper.
• Decisions on community right to buy registration are made by Scottish Ministers; those about registration of the agricultural tenant's right to buy are made within RoS.
• Any person enquiring about the community body right to buy process should be referred to the Scottish Government website for guidance.

Background

The background to the Community Right to Buy Legislation is noted here: https://www.gov.scot/policies/land-reform/community-right-to-buy/

The RoACBL register (Register of Applications by Community Bodies to Buy Land) contains applications by community bodies to buy land, in order to bring it back into productive use for the benefit of their local community.

The RoACBL Register consists of two parts:

• The first is a register of information and documents relating to applications for the right to buy abandoned, neglected or detrimental land. It was launched on 27 June 2018. This relates to Part 3A of the Land Reform (Scotland) Act 2003  (“Part 3A”).
• The second part is a register of applications for the right to buy land for further sustainable development. It became live on 26 April 2020. This relates to Part 5 of the Land Reform (Scotland) Act 2016 (“Part 5”).

Although there is already in place a Community Right to Buy (as set out in Part 2 of the Land Reform (Scotland) Act 2003) (“Part 2”) the major difference with Parts 3A and 5 is that these contain a compulsory purchase power, meaning that a properly constituted community body may seek Ministerial approval for the transfer of land (or in respect of a of tenant’s interest in terms of Part 5) even where the owner of the land or tenant does not wish to sell the land or tenant’s interest - both private and public land may be sought.

As well as land, a Community Body can also purchase salmon fishings and mineral rights.

Part 5 also introduces the right to buy a tenant’s interest (although this does not include a croft tenancy or the tenancy of a dwelling house) – this right is not included in the earlier Legislation in Part 2 and Part 3A.

Part 5 also introduces the option that the Community Body can nominate a 3^rd Party to purchase the land &c on their behalf.

Community Right to Buy registration process:

The Community body submits their Application to purchase the land to the Community Land Team, who act on behalf of Scottish Ministers. A determination is taken as to whether the application is accepted based on the content of the application. If the application is accepted it is then emailed by the Community Land to RoS, with the appropriate details of what is to go on the RoACBL.

The Other Registers Domain Team [CAJR] updates the Repository. The Repository includes details of the application to SG, along with maps and other documents and that SG consider should be included in the record for public viewing – public access to view the register is free.

Once notified by CAJR, MBM create an index for the application on the mapping system to alert registration staff that there is an application lodged with Scottish Ministers for a Community Body to make a compulsory purchase of the land.

Prohibition on disposal of land

Once an application is accepted by Scottish Ministers and registered by the Keeper in the RoACBL, three key things happen:

• (i) a prohibition preventing an owner and, where applicable, tenant from transferring or taking steps to transfer the land or tenant’s interest is in place.
• (ii) Scottish Ministers must invite various people, including the land owner and, where relevant a tenant whose interest is being sought, and any creditor in a standard security over the land or proposed third party purchaser, to send them their views on the application within 60 days of the invitation to do so.
• (iii) Give public notice of the application as soon as reasonably practicable. They must also give the date by which views from the interested parties are to be received by them and invite persons to send their views within 60 days from publication of the notice.

The Register itself will show the “Status” of an application, this will either be “Pending” or “Declined”.

• Pending: Scottish Minsters are considering the application within the 6 months’ time frame
• Declined: Scottish Ministers have declined the application on further consideration (the application is not removed from the RoACBL until after the 6 months period has passed)

How will registration officer know application may be affected by RoACBL?

First registration or voluntary registration

If the subjects affected by the pending or registered interest of a community body in RoACBL are not registered in the Land Register when Map Base Maintenance compare the information in the RoACBL, then the registration in RoACBL should be identified from an index entry either at Manual PI stage or by the plans officer completing the plans settle process. 

 Form of NANs

The NAN will take one of the following forms:

Application ABxxxxx entered on RoACBL affects the Subjects in this Title. Please refer all applications to the legal senior caseworker workbasket via CMS. Please DO NOT remove this note on subsequent Applications.

or

Application ABxxxx entered on the RoACBL affects the Subjects in this Title. Please refer all applications after <enter todays date> to the legal senior caseworker workbasket via CMS. Please DO NOT remove this note on subsequent Applications.

Dealing or transfer of part

When a pending application is made in the RoACBL, affected registered titles will be identified by Map Base Maintenance and a Next Application Note ('NAN') entered on relevant title sheet or title sheets if the affected subjects (or any part of those subjects) are registered in the Land Register or are undergoing first registration. 

The role of the registration officer once affected application identified

Party named in the transfer deed:

The Disposition should be in favour of the Community Body, named in the RoCABL register or, in the case of Part 5 applications, the named third party in the RoCABL register.

Standard Securities:

In respect of part 3 applications

Any heritable security which burdened the land before title is granted to the Part 3 community body, ceases to do so on the registration in the Land Register of Scotland of the Part 3 community body’s purchaser’s interest in the land.

In respect of part 5 applications

Any heritable security which burdened the land or tenant’s interest immediately before (a) title is granted to the Part 5 community body or, as the case may be, to the third party purchaser, or (b) the tenant’s interest is assigned to the Part 5 community body or, as the case may be, to the third party purchaser, ceases to do so on the registration in the Land Register of Scotland of the Part 5 community body’s or third party purchaser’s interest in the land.

A relevant application for registration of a disposition, including a disposition of minerals or salmon fishings (and any applications which it is, or should be, attached to) should be referred to the Senior Advisor Service. This is so even where the application purports to be an exempt transfer, or contains a declaration indicating that it is such an exempt transfer. A referral should be made even if the RoACBL registration appears to be more than 5 years ago. Whether rejection is required, or other action requires to be taken, will be confirmed by the senior caseworker to the registration officer.

In any case of a registrable deed other than a disposition, the NAN should be retained on the LRS title workdesk as the prohibition will continue to apply and the right to buy may arise in relation to a transfer by that disponee within the lifetime of the RoACBL registration (5 years).

If, after referral, the registration officer is advised to proceed with processing the application, for example because it is accepted that the transfer is exempt, the registration officer should, again, not remove the NAN from the title workdesk. The NAN should also be carried forward onto the LRS title workdesk of a Transfer of Part, if the transfer is not to the Community Body and was claimed to be exempt.

Form of exemption declaration in a disposition

There are a number of exempt transfers not affected by a registered or pending community interest. Where a transfer falls within one of the exempt categories, the deed giving effect to the transfer must, by virtue of section 43, contain an appropriate declaration specifying which provision of section 40(4) operates to make the transfer an exempt one. Additionally, transfers under section 40(4) paragraphs (a), (e) or (h) must also contain a declaration that the transfer does not form part of a scheme, arrangement or series, the purpose of or effect of which is to avoid the provisions of the Act. 

There is no statutory style of declaration. However, exempt dispositions submitted for registration have contained a form of declaration similar to the following which might be used where a disposition is a transfer otherwise than for value under section 40(4)(a) of the 2003 Act:

"Declaring that subsection (4)(a) of section 40 of the Land Reform (Scotland) Act 2003 operates to make the transfer effected by this deed one to which subsection (1) of that section does not apply and that the transfer does not form part of a scheme or arrangement and is not one of a series, such as is mentioned in said subsection (1)"

Additional notification of rejection to Scottish Ministers

In terms of section 42 of the 2012 Act, where an application for registration is rejected on the basis that the Keeper is not satisfied that the application does not relate to a transfer prohibited either by section 40(1) or section 37(5)(e) of the 2003 Act, the rejection must be notified to Scottish Ministers and a copy of the application supplied. 

This duty does not apply where the reason for rejection is that the transaction appears to be exempt, but the declaration that it is exempt and the provision of 40(4) of the 2003 Act under which it is exempt is not included in the disposition being registered. 

Whether Scottish Ministers require to be notified of rejection in a particular case is a matter for the Senior Advisor Service referral point who should seek further guidance if required.

If the registrable deed is a disposition or other conveyance of land and is granted after the date when an application affecting the land in the disposition is either pending or registered in the RCIL, but the disposition does not contain an exemption declaration as set out above, the application for registration may require to be rejected in terms of the general application condition in section 22(1)(c) of the 2012 Act. Where a disposition is not an exempt transfer (so it is not merely that an exemption declaration has been omitted from the disposition), it will also be invalid. As a result, such an application would also be in breach of the condition of registration that the registrable deed is valid, under section 23(1)(b) for a disposition or notice of title inducing first registration, or section 26(1)(a) for registrable deeds submitted as dealings or transfers of part.

The decision to reject, and also whether the rejection of the application should also be notified to Scottish Ministers, is made by the Senior Advisor Service who should seek further guidance if required.

Asset transfer requests

Part 5 of the Community Empowerment (Scotland) Act 2015 allows community bodies to make asset transfer requests to any of a number of public authorities. Such requests allow community bodies to either seek ownership or lease of land or buildings for which they believe better use can be made, or else request rights to manage, occupy or make use of such land for specific purposes.

Prohibition on disposal of land

Once an asset transfer request has been made, an authority may not normally sell, lease or otherwise dispose of the land to which the request relates to any person other than the community body. As soon as an authority is prevented from disposing of land as a consequence of a transfer request, any contract under which the authority is obliged to sell, lease or otherwise dispose of the land to a person other than the community body or, in the case of a Part 5 application, the nominated 3^rd Party, is void.

This prohibition on disposal does not apply if the land has already been advertised for sale or lease, or if the authority entered in negotiations or began the process to transfer the land to another person prior to the request being made. Such prohibition may also be lifted by direction from Scottish Ministers if sufficient justification is provided as to why the prohibition should be removed.

Role of the registration officer

Registration staff should not undertake a search of public authority asset registers to ascertain if any asset transfer requests have been made. Should evidence of a breach of the above prohibition come to light, a senior adviser should be alerted in the first instance.