As well as all the legal arguments outlined by Sir Crispin Agnew QC in the test case, a number of other legal opinions (formal and informal) have been published in recent years which question the land-owning land maintenance business model in Scotland. In addition, we have a letter by the European Commissioner For Consumer Affairs which queries the validity of the model under consumer law across the whole of the UK:
- a submission by Professor Robert Rennie to the Justice Committee of the Scottish Parliament in 2013
- a legal opinion on the land owning land maintenance business model, compiled by Lord Colin Tyre QC in 2011. The opinion was commissioned by Consumer Focus Scotland
- two legal opinions on the business model of the land owning land maintenance company Scottish Woodlands in 2009. They were both commissioned by North Ayrshire Council. As a result of these opinions, North Ayrshire Council advised residents on Montgomerie Park in Irvine that the burdens in their deeds which mandate them to pay this company were unenforceable. They include opinions by Professor Robert Rennie and Chris Haddow QC
- a letter by the European Commissioner for Consumer Affairs in 2007 which she states that European Consumer Law - especially the law on unfair terms in consumer contracts (which must not create an imbalance in power between parties) - may apply in UK property contracts. She mentions a case in the English courts which makes the vital link between consumer law and property law. In other words, she suggests that covenants and burdens could be considered as standard contracts under the Unfair Terms in Consumer Contracts Regulations 1999. This legislation applies across the UK and can be argued in any court in the land. You could try citing this legislation in your local small claims court or in a tribunal. We would recommend highly that any future test cases are fought using consumer law
- an informal chat with a Scottish legal expert in 2007 who gave us some insights into the Title Conditions (Scotland) Act 2003. You can see from the discussion that it's vital to check who owns the land. If the land is held in common ownership, communities have a right to hire and fire land managers using a 2/3rd majority. The only exception to this is for a limited period [for a maximum of five years or whenever the last house is sold, whichever is the soonest] when the developer has the right to appoint a manager. If the land is owned by a land owning land maintenance company, other areas of the Act apply. It's not uncommon for a developer to retain ownership of the land for more than five years (or when the last house is sold) before transfering it to a land owning land maintenance company - in which case, it may be that no-one has a right to charge you for maintenance. As uncovered during the test case, land owning land maintenance companies have no power to charge homeowners based on the burdens in the deeds until they take ownership of the land - the burdens are unenforceable until the land is transferred to them.