SUBMISSION FROM GREENBELT GROUP ACTION
Introduction
1. Greenbelt Group Action is a campaign group made up of homeowners from
estates across the UK who have been working actively since 2007 to tackle the
problems we are experiencing with land-owning land maintenance companies.
2. Over the past three years we have worked with a wide range of public sector
bodies, academics and other specialists in a bid to educate ourselves about the
nature of the land-owning land maintenance industry and the legalities
surrounding our situation.
3. Our aim is to unite estates and to push for changes in legislation and public
policy.
4. We are currently in touch with around 150 estates across the UK – mostly in
Scotland – that have reported problems.
5. We have also set up websites in a bid to unite ourselves with homeowners that
might be beholden to other land-owning land maintenance companies.
6. We suspect that up to 50,000 homes in Scotland are caught up in the single
model of ownership scenario at present and that this number is growing all the
time.
7. Our relationship with these companies is governed by burdens inserted into out
Title Deeds by developers that mandate us to pay a particular land-owning
maintenance company – and only that company - in perpetuity - the sum of its
choosing for maintaining public open spaces and other key pieces of the public
infrastructure such as SUDs ponds, forests and flood defence systems that might
be located near our homes - or may be some considerable distance away from it.
8. These companies typically charge many times over the market rate and
systematically fail to deliver services to the standards outlined in our Title Deeds,
and yet homeowners have no rights in law to replace them. In other words, we
have absolutely no ability whatsoever to obtain value for money or to free
ourselves from a failing provider.
9. It is important to note that due, we suspect, to well-documented doubts regarding
the legality of the business model [e.g. the Title Conditions (Scotland) Act 2003,
Section 3 subsections 6&7, which expressly forbids the creation of burdens
containing on-going monopolies or the inclusion of named suppliers in title
deeds], land-owning land maintenance companies do not use the court system in
the same way as traditional factors, but instead rely on threats and arbitrary late
payment fees to extract payment for services not rendered.
10. We believe land banking - or “land hoarding” as it is sometimes known - is one of
the prime reasons why developers opt for the single model of ownership on new
estates.
11. From what we can tell most of the major developers in the UK now take
advantage of this service and use this model of land maintenance in preference
to any other. In other words, we suspect the single-model of ownership is now
the industry norm and is set to affect a large proportion of the new-build housing
stock in the UK in the years to come.
12. The problem certainly appears to be escalating rapidly and in recent months we
have noticed the following new trends:
 owners in new-build flats telling us that they are being asked to pay land
maintenance fees for the upkeep of the broader development as well as
factoring fees for the maintenance of communal land around their block
 that a number of traditional factors [e.g. Hacking and Paterson] appear to be
starting to act as land-owning land maintenance companies.
13. As far as we can tell, the Factoring (Scotland) Bill is the first piece of legislation in
the UK that attempts to recognise the problems we are experiencing – and whilst,
due to the complexity of our situation, it is only able to address a portion of the
issues we are facing - we very much appreciate the fact that an attempt has been
made by Patricia Ferguson and her team to include land-owning land
maintenance companies within in the Bill.
14. In welcoming the Factoring (Scotland) Bill and the many benefits it may afford us,
we also believe that further legislation is needed to address the very specific
difficulties being encountered by homeowners trapped in our situation.
Feedback on the Bill
Part 1, Section 2, Subsection 1c – [Meaning of “property factor”]
15. It is critical that the definition of “property factor” in relation to land maintenance
companies is water-tight not only in this Section of the Property Factors
(Scotland) Bill, but throughout the entire document – otherwise it will most
certainly be subject to challenge by land maintenance companies.
16. One solution may be to use their own terminology – i.e. companies operating the
single model of ownership.
Part 1, Section 5, Subsection 2c – [Section 4: considerations]
17. This section mentions that a deciding criterion for registration is whether a
property factor has “contravened any provision of the law relating to tenements,
property or debt.” Given the doubts over the single model of ownership in
relation to Section 3, Subsections 6&7 of the Title Conditions (Scotland) Act 2003
and other areas of law such as Unfair Terms in Consumer Contracts legislation,
which has been found to apply to land and property law [legal references
available on request], we would suggest that this section of the Bill might be
expanded to encompass other areas of legislation such as land and consumer
law.
Part 1, Section 9, Subsection 2b – [Effect of refusal to enter in register or
removal from register]
18. This section entitles homeowners to “appoint new property factors (or to decide to
manage their properties without appointing a property factor) in accordance with
the procedures made in relation to such decisions in their title deeds or, as the
case may be, the Tenement Management Scheme.”
19. Under the single model of ownership, there is no mechanism in homeowners’
Title Deeds [or in the Title Conditions (Scotland) Act 2003 at present] that would
enable homeowners to appoint alternative providers should their land-owning
land maintenance company be refused entry to or be removed from the register.
Even if legislation is passed that will enable us to dismiss a land-owning land
maintenance company and appoint factors to manage their land, this situation will
always be a source of resentment and nervousness for communities. The
situation will be further complicated by the fact that communities may be unable
to find the expertise to manage some of the features present on modern estates
that they are mandated to pay for such as flood defence systems and SUDs
ponds.
20. Perhaps some kind of provision could be made in this part of the Bill that should a
land-owning land maintenance company be refused entry to or removed from the
register, that the developer – who remains ultimately responsible under the terms
of the original planning conditions for the success of the land maintenance
solution it chooses – should be made to step in and pick up the cost of and
responsibility for the maintenance moving forward.
Part 1, Section 13, Subsection 1 – [Code of conduct]
21. As mentioned above, we would hope that one of the “minimum standards of
practice for registered property factors” is that their business model is fair and
adheres to relevant current legislation such as the Title Conditions (Scotland) Act
2003 which expressly forbids the creation of on-going monopolies in Title Deeds.
22. The effectiveness of this piece of legislation will rest ultimately on the credibility of
the Code of Conduct and how well it is enforced.
23. One thing we’ve seen often is that land-owning land maintenance companies
learn quickly from their mistakes and dream up workarounds and new abuses
easily in response to any restrictions placed upon them. It will be vital that the
code of conduct is refreshed regularly to deal with new practises in this industry.
Part 2, Section 16, Subsections 1a and 2 – [Application to homeowner housing
panel]
24. Under the section a “homeowner may apply to the homeowner housing panel for
determination of whether a property factor has failed (a) to comply with any term
of contract between the homeowner and the property factor (the “contractual
duties”).”
25. There is considerable debate at present as highlighted in an on-going case in
Perth Sheriff Court at present [Edmund A. Forbes V Greenbelt Group Limited] as
to whether the land maintenance burdens in our Title Deeds constitute a contract.
In light of this, it may be worth adding the words “term of contract or burden” to
this section of the Bill.
Part 2, Section 17, Subsection 2c – [Referral to homeowner housing
committee]
26. This part of the Act would allow the president of the homeowner housing panel to
reject an application by a homeowner “where the homeowner has previously
made an identical or substantially similar application in relation to the same
property.”
27. Due to the fact that homeowners in our situation have no ability to escape from a
failing land-owning land maintenance company [i.e. no ability to solve our own
problems], it’s conceivable that a homeowner might bring a similar complaint to
the panel on a fairly regular basis – perhaps annually. We would ask that the
wording in this section is amended to reflect our specific circumstances.
Part 2, Section 18, Subsections 1a and 4 – [Determination by homeowner
housing committee]
28. Same comment as above in relation to the use of the term “contract” rather than
burden.
Paula Hoogerbrugge
Greenbelt Group Action