Community Rights to Buy in Scotland under review

As the UK Government launches its English Devolution and Community Empowerment Bill introducing a new community right buy, the Scottish Government has issued a Consultation looking to refine and update the existing community rights to buy in Scotland.

The Present Position

Scotland currently has four community rights to buy (CRTBs).

(1) Original CRTB

The first, introduced in 2004, allows Community Bodies created in accordance with the legislation to apply to the Scottish Ministers to register an interest in buying a property in Scotland. If their application is successful, the owner of the property must not begin negotiations to sell the property or put the property on the market for sale without first offering the property to the Community Body.

The Community Body must then follow the process and raise funding if they wish to proceed to buy the property. The price to be paid is assessed and determined by the independent valuer appointed by the Scottish Ministers. They have eight months to complete the process.

This CRTB is a pre-emptive right to buy. It does not force the owner to sell the property to the Community Body – the owner may choose to sell or hold on to their property.

Initially, the original CRTB was restricted to mainly rural areas but was extended to the whole of Scotland in 2016. The Consultation notes that there have been 175 successful applications which have completed under the CRTB and resulted in community ownership of land and property.

(2) Crofting CRTB

The original CRTB was accompanied by the Crofting CRTB.

It is different because it is a compulsory right to purchase giving crofting communities the right to apply to the Scottish Government to require the owner of land to sell it to the community at market value. If the community is successful, the owner must sell the land whether they wish to or not. This right has never been used to its conclusion but, according to the CRTB Consultation paper, it has been a ‘key aspect in several successful crofting community buy outs.’

(3) Abandoned, Neglected or Detrimental Land and (4) Furthering Sustainable Development

Two further compulsory CRTBs were introduced in 2016 and 2020.

First, the Community Right to Buy Abandoned, Neglected or Detrimental Land for which the community must be able to evidence that the owner of the land has allowed it to deteriorate to such an extent that it is causing harm to the environmental wellbeing of the community. There have been no successful applications to buy using this CRTB.

Secondly, the Right to Buy Land to Further Sustainable Development for which the community must be able to demonstrate that they could use the asset in a much more sustainable and beneficial way when compared to its current use. So far, the only successful application to exercise this CRTB has been the application by the community group Poets’ Neuk to buy a derelict area in St Andrews.

The Consultation

What is the Scottish Government reviewing?

Merger

The Scottish Government is proposing a merger of the three compulsory CRTBs.

Each of the rights involves a different type of asset and a slightly different procedure which ‘reflects the differing levels of “interference” in the owner’s legal rights.’

Any merger of the three rights will involve deciding which conditions to retain and which to remove. The Consultation confirms that some specific conditions which will continue to apply only to the Crofting CRTB but a decision will have to be made on whether the merged compulsory CRTB should be based on the condition of the land or the current owner’s use of the land.

The CRTB to further Sustainable Development currently permits third party purchasers to be nominated by a Community Body to exercise the right to buy. Consultees are asked whether this right should be included if the compulsory rights to buy are merged and the conditions which may apply to any such third party.

The common themes among all CRTBs are the furthering of sustainable development and a public interest test, both concepts which have never been defined in any of the guidance or legislation. Non-legislative steps intended to improve the CRTBs are set out in the Consultation and include providing more guidance on matters such as what is meant by sustainable development and a public interest test. The Consultation also sets out 36 proposals from the review process which the Scottish Government will not take forward.

Late applications

Late applications to register or exercise a CRTB are currently permitted after the owner of the land has taken steps to transfer the property. More stringent conditions apply to late applications in terms of timings and support that must be evidenced. There has been a drop in the number of late applications which the Consultation suggests may be in part due to changes in market practices with some properties being sold “off market.”

The Scottish Government is therefore reviewing the late application process and poses questions on what community groups should be expected to have done before they apply and whether an owner could be prevented from withdrawing a property from sale if the community submits a late application.

Creating a Community Body and Community Support

The rules on creating a Community Body are also under review. Currently, at least 75% of the members of a Community Body must be resident and eligible to vote in a local election in the geographical area covered by the community. Those that meet the residency requirement are known as Ordinary Members and they must be in control of the Community Body. The Scottish Government is asking whether the threshold should be reduced to 50% because some community groups have struggled to meet the 75% threshold. They also ask if 10% attendance by Ordinary Members at General Meetings is enough ‘to ensure a representative local voice in decision making’.

Ultimately, whether a CRTB is to progress depends on a ballot of the community and in effect, 25% support from the community to proceed with the CRTB. The Consultation is questioning whether 25% is too high a target for a ballot and whether support could be evidenced by setting other thresholds.

Interplay between CRTBs and Option Agreements

An application to register an interest to buy or to secure one of the compulsory CRTBs must be declined by the Scottish Ministers if missives have already been concluded, i.e. a contract to sell the land is already in place. This includes missives granting an option to buy to a third party which may or may not be exercised at a date in the future.

The review is asking whether the treatment of such option agreements should change and poses the following questions:

• Should the existence of option agreements (although not their details) be something that an asset owner must make known to community groups that have applied for a right to buy the asset?
• Rather than automatically requiring that an application is declined, should an application for a right to buy proceed through assessment, and then, if approved, take second place to the option agreement, meaning that if the option is not taken up, then the community body right to buy will apply?
• Should there be a limitation on the types of option agreement that cause an application to be declined? For example, should they only be relevant if not between members of the same family, or companies within the same group?

Extension of timescales

When a Community Body is successful in registering an interest to buy land under the original non-compulsory CRTB procedure, their interest is registered against the title to the land and the owner is prohibited from selling the land without first offering it to the Community Body for five years. The Community Body must re-apply to register their interest when the five years expire. The Scottish Government is asking whether this five-year period should be extended ‘as the process can be time consuming and complex for some groups’.

Consultees are also asked whether unsuccessful applicants should have more than the current 28 days to appeal against a rejection of their application by the Scottish Ministers.

Next steps

The Consultation closes on 5 October 2025. The Scottish Government plans to analyse the responses and issue a final set of proposals for the consideration of the Scottish Ministers by December 2025.