There are various paths community groups can follow to secure ownership of land or buildings for the benefit of the community, from direct negotiation with the landowner or bidding on the open market, to use of formal schemes and land reform legislation. An overview of a range of these processes is given in the following paragraphs. The circumstances and opportunities can be very different from one community to another, so an early discussion with an advisor will provide further detail and support particular to each project.
Many community purchases of land and/or buildings take place outwith formal schemes or legislation, through approaching the landowner to discuss a potential sale. Where the landowner is a willing seller a negotiated sale or transfer to the community can take place at a timescale suitable for both parties. Each case is different, but many of the stages involved in the formal schemes (such as demonstrating community support and developing a business plan) are still necessary or desirable in showing the community, directors of the community group and potential funders that the project is viable and locally controlled. A potentially useful measure that can be considered is the use of an option agreement between the owner and the community group, giving the group first option to buy at an agreed price for a stipulated length of time.
A Protocol for Negotiated Sales has been developed by Community Land Scotland working in partnership with Scottish Land & Estates over the last eight months.
The development of the Protocol comes on the back of a 2 year legislative programme which has provided a range of additional rights for communities who may wish to purchase land. It is however recognised that taking the legislative route can be more onerous, for both landowners and communities, than reaching a sale via negotiation and the Protocol is designed therefore to facilitate more negotiated sales.
There are various components to the Protocol, including flowcharts, a summary of community rights in law and case studies, but together they set out recommended processes for both landowner initiated and community initiated negotiated sales of land. The Protocol can be accessed via both Community Land Scotland and Scottish Land and Estate websites
As with any potential property buyer, communities have the option to bid on the open market for a property that is advertised for sale. Timescales in this scenario can be uncertain as a closing date can be set at any time. Noting an interest with the selling solicitor will ensure that the group is informed of any closing date set. A conditional offer can be made subject to the community being able to raise the necessary funds within a stated period. An unconditional offer shouldn’t be made unless the funds are available.
Many public bodies, including local authorities, have an asset transfer policy which provides a process for transferring ownership of publicly owned land and buildings to a local community group. Practice varies widely; an initial approach to the relevant public body regarding their overall process or a particular asset will indicate what their basic requirements and expected timelines are. Support is available through the Community Ownership Support Service, run by the Development Trusts Association Scotland, to help groups and public bodies through the transfer process.
Further information on these provisions, and the recent amendments through the Community Empowerment (Scotland) Act 2015, can be obtained from the Scottish Government Community Land Team.
Transfer of Crofting Estates (Scotland) Act 1997
This legislation enables the transfer of crofting estates owned by Scottish Ministers to an approved body, and can also include mineral, sporting or other rights associated with the land. Suitable groups must be representative of the crofting community and should be able to demonstrate that their plans on taking ownership would be for the benefit of residents on the estate.
Under this scheme, an eligible community body can apply to purchase or lease land from Forestry Commission Scotland. Usually this is after FCS has declared the land surplus to their requirements, and prior to it being sold on the open market, but communities can also apply to acquire land still under operational management.
Eligibility requirements are broadly similar to those for community bodies under the Land Reform (Scotland) Act.
The application process requires the community to provide information about a number of things: the community’s connection with the land; the level of community support for the proposal; the group's capacity to manage the land; how the project fits with principles of sustainable development; why the proposal would be in the public interest; and whether it would interfere with management of the national forest estate. If the community’s application is successful, it has 18 months to raise the necessary funds and conclude the purchase.
Full information can be found in the National Forest Land Scheme Guidance document produced by Forestry Commission Scotland, available on the left hand side, and on their website.