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Scottish estates Q&A

This section of the site contains some of the information we've gathered about Greenbelt Group and other land-owning land maintenance companies over the years, including Scottish Woodlands and Ethical Maintenance.

It represents our best attempts at understanding the situation and is shared in good faith in a bid to empower homeowners to find their own way forward.  

Nothing on this website constitutes legal advice and we do not recommend one course of action over another.  We would always recommend that you speak to a solicitor before deciding how to act.  If in doubt, please speak to the campaign solicitors Balfour Manson, which managed our legal action against Greenbelt Group and is very knowledgeable in this field.

What can you tell me about Greenbelt Group, or Greenbelt as it now calls itself?
How can I find out more about land owning land maintenance companies?

Do I have to pay?
What happens if I don't pay?
Will I be taken to court?
Will it affect my credit rating if I don't pay?
Will Greenbelt Group approach my mortgage lender?
Can I sell my home without paying?
Is it true that debt in Scotland isn't recoverable after five years?
Can I get rid of this company or switch provider?
If I can't get rid of Greenbelt Group, how can I protect myself?
I just want to sort things out with Greenbelt Group - what can I do?
Can my local authority step in if Greenbelt Group doesn't maintain the land?

My solicitor didn't advise me fully about this, can I sue them?
Who else can I report the problems I'm having to?
I still have questions, how can I find out more?
And finally...

What can you tell me about Greenbelt Group, or Greenbelt as it now calls itself?
It's important to say that Greenbelt Group is not a 'factor' in the traditional sense - it's a relatively new type of company known as a land-owning land maintenance or land management company.

In the past, developers had two main options when choosing how to maintain open spaces around new estates:

  1. they could transfer ownership of the land to a local authority along with a commuted sum which would enable the council to maintain the land in perpetuity
  2. they could transfer ownership of the land to residents and place burdens in their title deeds which mandated them to work as a community to appoint a factor of their choice to maintain the estate - and most importantly, they could replace them if things went wrong.

However, over the past decade or so, the vast majority of developers in Scotland appear to have chosen to transfer ownership of open spaces to land-owning land maintenance companies such as Greenbelt Group and to place burdens in the title deeds of homeowners mandating them to pay that particular company, and only that company, the sum of that company’s choosing for as long as they remain in their homes.  

As in any scenario where customers are unable to switch providers, there's no incentive for these companies to deal fairly with homeowners. The issues surrounding land-owning land maintenance companies have been well documented in:

  • a 2009 market study into Scottish property managers by the Office of Fair Trading - which highlighted numerous problems and recommended that Consumer Focus Scotland mount a test case against a land-owning land maintenance company
  • a 2011 report into land-owning land maintenance companies by Consumer Focus Scotland in which it:
    • ‚Äčcommissioned IPSOS MORI to undertake an extensive door-to-door survey of Greenbelt Group customers.  The survey showed that around two-thirds Greenbelt Group’s customers were dissatisfied with the company’s service and would switch provider if they could
    • a legal opinion by Lord Colin Tyre QC which raised significant concerns about the land-owning land maintenance business model
  • a 2013 enquiry by the Justice Committee of the Scottish Parliament into the effectiveness of the Title Conditions (Scotland) Act 2003, which contains interesting opinions from leading academics on the land owning land maintenance business model
  • extensive media and Parliamentary coverage - including a 2008 BBC TV documentary entitled Scotland’s property nightmare – which sparked a high-profile campaign by the Glasgow Evening Times to introduce legislation to regulate the conduct of factors and land-owning land maintenance companies.  This piece of legislation, The Property Factors (Scotland) Act 2011 came into force on 1st October 2012.

IMPORTANT NOTE: During a court case in Perth a few years ago, Greenbelt Group's solicitors provided the pursuer (a homeowner) with a copy of an underlying agreement between Greenbelt Group and a developer.  As you can see, this document showed that the developer transferred land to Greenbelt Group on the understanding that the land would be handed back if the developer succeeded in gaining planning permission to build on it in the future. 

How can I find out more about land owning land maintenance companies?
More information on the history of these companies, their business strategy, stakeholders and directors can be founds on websites such as:

Copies of key documents such as annual returns and accounts can be downloaded for £1 from the Companies House website.

Our experience is that these companies are not large faceless corporations, but relatively small companies owned and run by the major shareholders.

Do I have to pay?
Greenbelt claims that we are obliged to pay an Annual Maintenance Fee based on the burdens in our title deeds, however the recent test case in the Lands Tribunal for Scotland highlighted a few important points:

  • that homeowners have the legal right to withhold payment if they believe services haven't been delivered or if charges are in dispute
  • that land owning land maintenance companies have no legal right to charge homeowners based on the burdens in the deeds until they've taken ownership of the land - you can check who owns the open spaces on your estate by contacting your local planning department or the Registers Of Scotland - in other words the burdens don't become active until the transfer of land from the developer to a land owning lands maintenance company has taken place
  • that the burdens in the deeds may not be enforceable unless the information reflects accurately what you're being charged for - for example, if information was not specified in your title deeds at the point of sale (e.g. the exact area of land and features to be managed, or if your deeds refer to documents not included with your deeds) your burdens may not be enforceable as shown in the test case.  If you think this scenario applies on your estate, you may wish to consider applying to The Lands Tribunal for Scotland to have your budens extinguished - quoting the test case. There are costs and risks associated with this course of action and we recommend heavily speaking to the campaign solicitors, Mark Boni at Balfour Manson, if you are considering this as an option.  Many solicitors now work on a no-win-no-fee basis, which makes access to justice affordable for the ordinary person.  We took the test case to court by paying an insurance premium to cover the costs if we lost.   Some homeowners are also now writing directly to The Keeper of the Registers of Scotland and asking for their burdens to be amended as they believe the scenario they're in is the same as outlined in the test case.

What happens if I don't pay?
From our personal experience, as long-term non payers and from having corresponded with homeowners from estates across the UK since 2007, we can say that Greenbelt will almost certainly:

  • continue to bill you whilst you're in the property
  • add late payment charges
  • send letters threatening you with court action
  • they may also try to intervene in the sale of your home if you or any of the solicitors involved contact them during this process - as they are obliged to do if the company is mentioned in your deeds
  • their debt collection department, or agents, may call you if you give the company your phone number and you may receive letters repeating the usual demands.

Like all companies pursuing you for monies they believe you owe to them, land owning land maintenance companies must abide by certain rules.  If you feel alone, there are various debt management or debt advisory services that can negotiate on your behalf - particularly if you're experiencing hardship.

Will I be taken to court?
Up until the court case, Greenbelt Group certainly didn't take people to court as standard, however this may have changed.  Your best bet is to join HorNet - the Homeowners' Rights Network - which has active forums and a lively Facebook page which will give you a flavour or what Greenbelt Group and other land owning lands maintenance companies are up to at the moment.   

Will it affect my credit rating if I don't pay?
We've never heard of anyone being affected in this way.  If in doubt, you can check your credit rating for free and put a note against any entry you disagree with.  For example you could say you were in dispute with a company over non delivery or the legality of the charges.
‚Äč  As we understand it, Greenbelt is not a credit provider, so short of gaining a court judgement against us, and us failing to pay this, we fail to see how Greenbelt could do anything to affect our credit scores.  More information on credit scores is available here.

Will Greenbelt approach my mortgage lender?
Greenbelt certainly tried this in the past, although we haven't heard of any examples of this recently.  

The Council of Mortgage Lenders has condemned this practise and has written to its members to alert them to Greenbelt Group's actions. We would be extremely surprised if you lender took an approach of this kind seriously, and from our experience, any issues homeowners have had have been rectified very quickly.  

You could also send your lender a copy of this letter from the Council of Mortgage Lenders to Greenbelt Group.

Can I sell my home without paying?
Yes, but it's not easy! 

Conveyancing solicitors in Scotland use a checklist of standard clauses called Combined Standard Clauses to agree the Missives, or contract of sale.  This checklist is a starting point for negotiation, and any of the clauses in it can be changed and agreed as part of the sale.  

It's very important that you disclose to your buyer - both in the Homebuyer's Report and as part of the sale - that you're in dispute with Greenbelt and why.  If you're disputing the enforceablity of the land maintenance burdens in your deeds based on the test case (i.e. because you don't think your burdens contain the correct information), or if you're withholding payment as you believe services have not been delivered, you can ask your solicitor to send the buyer's solicitor a copy of the judgement in the test case.

If your solicitor tells you it can't be done, and they're not prepared to inform themselves about this issue, it may be worth switching.  If in doubt, we can highly recommend the conveyancing services offered by our campaign solicitors Balfour Manson.  

Is it true that debt in Scotland isn't recoverable after five years?
This appears to be the case with some types of debt.  More information is available from the National Debtline but do speak to a legal adviser if in doubt.

Can I get rid of this company or switch provider?
The only route we know of is the one taken in the test case by residents on the West Myerton estate in Menstrie in Scotland who asked for a declarator (clarification) from The Lands Tribunal for Scotland on whether the burdens mandating them to pay Greenbelt Group were valid.  The burdens were declared invalid by the Tribunal based on the fact that the area of land to be managed was not specified accurately when the title deeds were created.  
We suspect this is the case on other esates in Scotland - especially on larger estates built in phases where the site plans submitted by developers are often complex, vague and subject to change.   As a result of the test case, Greenbelt Group the Keeper for the Registers for Scotland has ammended the burdens for every household on the West Myerton estate to reflect the fact that the burdens mandating homeowners to pay Greenbelt Group are void.  Homeowners are no longer obliged to pay Greenbelt Group and Greenbelt Group will not be involved in the sale of their homes. In response, Greenbelt Group is currently refusing to maintain its own land.  Whether it is entitled to do this is another matter and one that residents are currently exploring with the local authority and other parties.  

As yet we have not heard of a community that has managed to switch provider.  Greenbelt Group owns the land and therefore controls who manages the land. 

An excellent summary of the legal issues surrounding this situation can be found in a recent report from the Justice Committee of the Scottish Parliament [see Secion 69 onwards]

If I can't get rid of Greenbelt Group, how can I protect myself?
How you choose to deal with this issue is a very personal matter and we would urge you to speak to your solicitor before deciding what course of action to take.

We can only tell you what we as individuals have done and that is to withhold payment and not to enter into any kind of correspondence with the company other than to tell it we do not believe that we are in a legally binding agreement with it, that we do not wish to receive its services and that we will not be entering into any further communication. The bills and threats of legal action still arrived but we ignored them whilst we got on with finding a solution in law.

We noticed from very early on in the campaign that a number of police officers were writing to Greenbelt Group to cancel any "contract" they might have.  Interestingly, this positions seems to have been supported by Professor Robert Rennie recently. We recommend highly reading his direct testimony to the Justice Committee of the Scottish Parliament committee and also his written submission.

In these Professor Rennie sets out why he thinks the burdens in our title deeds are not enforceable, how a second time buyer's position may differ from that of a first-time purchaser, and how it might be possible to cancel any implied "contact" you may have with a land-owning land maintenace company.  

It's well worth familiarising yourself with the following documents and sending them to your solicitor along with:

I just want to sort things out with Greenbelt Group - what can I do?
On 1st October 2012, The Property Factors (Scotland) Act 2011 came into force in Scotland.  This piece of legislation - which also covers land-owning land maintenance companies such as Greenbelt Group - is designed to protect homeowners by providing minimum standards that these companies must operate to.

The Act has three main elements: 

  • a compulsory register of all property factors operating in Scotland - Greenbelt Group is included in this register
  • code of conduct that sets out minimum standards of practice with which all registered property factors must comply - well worth a read!!!  One homeowners formulated a letter to Greenbelt Group a few years ago based on the code
  • a Homeowner Housing Panel (HoHP)that homeowners can contact to settle disputes.  The service is free of charge. The panel has the power to grant Enforcement Orders against factors and also recommend that a registered property factor is struck off the register and pervented from operating in Scotland.  It is a criminal offence for a company not to comply with an Enforcement Order or to contining operating if it has been struck off the register.

As you can see using a simple Google search, a number of homeowners have taken Greenbelt Group through the panel, including one homeowner who was awarded a £600 refund.

To add weight to your claim you could also involve your neighbours, your MSP, MP, local elected members and the media.  

We would recommend heavily that you log evidence meticulously - including taking dated photographs - if you plan to take a land owning land maintenance company to the panel.

You can also pursue issues about services and charges through the Sherrif Court system.  

Please note: If you're thinking of building a case against a developer or against a land owning land maintenance company, you may want to consider making a Subject Access Request under the Data Protection Act 1998.  

Can my local authority step in if Greenbelt Group doesn't maintain the land?
Yes.
As shown by this document, local authorities have the power, in principle, to take out planning enforcement notices against land owning land maintenance companies or against developers if the land is not maintained to the standards outlined in the original planning permissions. As proof that this is possible, Perth and Kinross Council has recently taken enforcement action against Greenbelt.  The document above gives a balanced view on the process involved, but technically speaking, whether homeowners pay or not, local authorities have the power to force land maintenance companies (and ultimately the developer if that fails) to maintain open spaces to a pre-agreed standard for all time.  It's worth enlisting the support of your local councillors and your neighbours in this.

My solicitor didn't advise me fully about this, can I sue them?
For many years Scottish Ministers such as Fergus Ewing have been telling us to sue our solicitors if we think we haven't been advised fully about these arrangements.  We haven't heard of anyone doing this, but it doesn't mean it hasn't happened.  

You can make a claim for damages against your solicitor via the Law Society of Scotland's professional indemnity scheme.

You could also raise an action in the courts using a solicitor that practised in professional negligence cases.

From what we can tell, most conveyancing solicitors are simplly flagging to their clients that they have factoring fees to pay.  This in itself is incorrect as Greenbelt Group is not a factor, it is an entirely different entity known legally as a land-owning land maintenance company.  

A lot of people who contact us said that the first time they were fully aware of this situation was when the first bill arrived, and that at no point had they been informed by their solicitor that they had no powers to dismiss the company or negotiate charges.  

We may be wrong, but we believe that every conveyancing professional should have a detailed knowledge of the Title Conditions (Scotland) Act 2003, and should be flagging not only the existence of these burdens in our deeds, but also the likely impacts and pitfalls of not being able to switch supplier.  We also believe they should be informing you of about the test case and ensuring that your burdens are compliant based on the findings of the test case.  The test case has been widely reported in legal journals and through formal information channels in the legal system in Scotland.

Who else can I report the problems I'm having to?
There are a range of individuals and organisations who may be interested in hearing about any problems you're having:

  • your MSP, although in our experience they're utterly useless - especially SNP Ministers, who in our experience, care nothing for ordinary people and have treated their constituents and campaigners with utter contempt for the past 10 years 
  • your local councillor, who may be able to offer practical help in liaising with the planning department.   Click here to find out who your elected members are and how to contact them
  • the planning department at your local council directly - planners may be able to take out enforcement action against a land maintenance company or the developer if the land isn't managed to the standards outlined in the original planning permissions.  You can find out what these are and ask to see all documentation and correspondence relating to your estate by making a Freedom Of Information request
  • the Competition and Markets Authority has recently taken over from the Office of Fair Trading and is the new body responsible for consumer protection across the UK
  • the Family Law at the Scottish Parliament who has had extensive dealings with Greenbelt Group and the many homeowners caught up in this situation.

I still have questions, how can I find out more?
There's a lot of useful information on the West Myerton Residents website.  

And finally..
What we would also say to everyone, is that one of the biggest sources of support in this situation is your neighbours - in our experience, this is a situation which unites estates.  Form a Facebook group for your community - then join with others via the Homeowners Rights Network and you'll soon have a huge reserve of help to draw on. 

A Scottish homeowner expresesses his frustration with the land owning land maintenance model...

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