UK: A New Power Of Compulsory Sale? The New Community Right To Buy Abandoned, Neglected Or Detrimental Land

Last Updated: 20 July 2018
Article by Gordon Aitken and Yvonne Allan

The Land Reform (Scotland) Act 2003 brought about a statutory right for communities to purchase land in Scotland. Being more of a right of first refusal over land than a right to buy, it lacks teeth: if the landowner never takes any step to sell the affected land, the community's right to buy is never triggered.

Now qualifying community bodies have access to power with perhaps more bite by virtue of the community right to buy abandoned, neglected or detrimental land which came into force on 27 June 2018.

A successful application by a community body will result in an order requiring the land to be sold.

What sort of land could be affected?

Qualifying community bodies can make an application to the Scottish Ministers to purchase "eligible land".

Eligible land is land:

  • which is wholly or mainly abandoned or neglected; or
  • the use or management of which is such that it results in or causes harm directly or indirectly to the environmental wellbeing of a relevant community – i.e. "detrimental" land.

It includes bridges, inland waters, canals and the foreshore.

Aspects that will be relevant to whether land is abandoned or neglected include the physical condition of the land and any buildings, the length of time the current situation has persisted, and the extent to which there is a risk to public safety. Mitigating factors include whether the land is a nature reserve, or whether it includes a scheduled monument. The current use and management of the land is also relevant – so, if there is in fact an ongoing legitimate use, it will be much less likely that a community application will be granted.

Eligible land does not include:

  • Land on which there is a building or other structure which is an individual's home (unless it is occupied under a tenancy) and other associated land (for example, land used for storage of possessions or vehicles used by the occupants of the house).
  • Some types of croft land.
  • Land which is owned or occupied by the Crown in its capacity as ultimate heir (for example because of a landowner's insolvency, or a landowner who has died with no heirs).
  • Land held or used by a Minister of the Crown or government department, and rights to petrol, coal, gold or silver.

The list of exclusions could be expanded in future.

Who can make an application?

Applications can only be made by qualifying community bodies. Generally it must be a charitable or non-profit organisation or company, or a community benefit organisation, in each case with a minimum of 10 members.

The headline point here is that an application cannot be made by an individual with an axe to grind; there needs to be a formal community body behind the move.

How does the community body make the decision as to whether to submit an application?

The community body must hold a ballot of the members of the community within the six months preceding the date of the application. In the ballot, at least half the members of the community must vote, with a majority of those voting supporting the purchase.

How is an application made?

There are certain pieces of information that must be included in any application. For example, the community body must set out the reasons why they consider the purchase to be in the public interest and compatible with furthering the achievement of sustainable development of the land. They must also justify why they consider the land to be abandoned or neglected, or detrimental land.

A copy of the application should also be sent to the landowner and to any creditors holding securities over the land, and be registered with Registers of Scotland.

The restriction period

This begins on the day on which the application is submitted to Registers of Scotland, and ends (generally speaking) when the transfer completes, or when the application is withdrawn or deemed withdrawn, or when the community body's appeal options are exhausted.

During the restriction period, the landowner is prohibited from transferring the land or taking steps with a view to transferring the land (for example, advertising the land for sale). There are exceptions to this rule: for example, the land may be gifted, or transferred between group companies, and a sale may proceed if missives were concluded before the application appeared on the Register.

What do the Scottish Ministers do following receipt of an application?

Upon receipt of an application, Ministers must invite the landowner, any tenant, any creditor, and any other person whom the Ministers consider has an interest in the application to send views on the application within 60 days.

The owner is also invited to provide information on specific issues, such as whether it would be in the public interest for consent to be given by the Scottish Ministers (and, if not, why not), and how the owner will further the sustainable development of the land if it remains the owner. Any landowner who receives such an invitation should take it seriously and ensure that its position is made clear to the Scottish Ministers as soon as possible, and in all events within the 60-day period. Failure to respond may make it more likely that an application will be granted.

How will the Scottish Ministers make their decision?

Ministers must not consent to the application unless they are satisfied that the land is eligible land, and that other fairly stringent criteria are satisfied. This includes a requirement for the community body to have tried (and failed) to acquire the land via voluntary means.

If the application relates to detrimental land, there are some additional requirements to be satisfied, including that the community body has contacted any relevant regulators who might have powers to remedy the harm being caused (although there is no obligation to wait for the regulator to act).

If the Scottish Ministers approve an application, what happens next?

The community body must notify the Scottish Ministers and the landowner of its intention to proceed to buy the land within 21 days of the Scottish Ministers' approval. If this does not happen, the application is deemed to have been withdrawn. In practice, this means that community bodies should ensure they have access to the necessary funds before they proceed with the application to the Scottish Ministers. The community body can still change its mind and withdraw from the purchase at a later date but it may find itself liable for the landowner's costs in that event.

Can the landowner or the community body appeal against the Scottish Ministers' decision?

Yes, they can appeal to the Sheriff Court. In addition, a heritable creditor with a power of sale can appeal against a decision by the Scottish Ministers to consent to a sale, as can a disgruntled member of the community who does not agree with the community's decision to buy the land (which would presumably leave them somewhat unpopular within their community!). Appeals must be lodged within 28 days of the Scottish Ministers' decision and the Sheriff's decision is final.

What compensation is payable to the landowner?

Payment for the value of the land must be made to the landowner no later than six months after the date of the Scottish Ministers' consent (except where there have been delays in the valuation or due to appeals, in which case the deadline is two months from when the valuation is completed or the appeal is determined).

If payment is not made by these deadlines, the community body's application is treated as having been withdrawn.

In addition, a landowner may recover compensation from a community body for loss where a community body fails to proceed with a purchase. Community bodies can apply for grant aid from the Scottish Ministers in certain circumstances to help them pay such compensation.

Any loss caused to a landowner where the application was ultimately refused can be claimed by the landowner from the Scottish Ministers.

How is the valuation of the land established?

The Scottish Ministers should appoint a valuer within seven days of giving consent for a purchase. The valuer acts as an expert and not as an arbiter. Their assessment is to be based on the open market value of the land (with a willing seller and buyer) as at the date when the Scottish Ministers' consent was given. Compensation is also payable for any depreciation in value of the landowner's remaining land, and costs of disturbance to the landowner as a result of the land transfer. The Scottish Ministers cover the expenses of the valuation. The valuer has eight weeks from their appointment to make their decision.

Alternatively, the landowner and the community body can agree a valuation voluntarily.

The landowner and the community body both have a right of appeal to the Lands Tribunal in relation to the valuation. Appeals must be lodged within 21 days of the valuer's decision.

What happens to any existing securities?

Any existing securities are discharged to the extent that they relate to the application land (but remain live in respect of any other land covered by the security). It is worth noting that the community body must pay the creditor(s) under any security the amounts to which they are entitled before making any payment to the landowner. In practice that means the community body will need to obtain a redemption figure via the landowner, or go directly to the lender if the landowner is not co-operative.

Are there controls to stop the legislation being misused by "shell" or "fake" community bodies?

There are saving provisions that prevent a community body changing its governance structure and internal rules after acquiring land through this process, unless they have consent from Scottish Ministers. This prevents a shell body being created for the purposes of the right to buy, only for its constitution to be changed and effectively privatised at a later date. The Scottish Ministers have the power to compulsorily acquire the land if such a change is made in contravention of these rules.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions