Commentary on Sections Procedure following consent Section 64 – completion of transfer
305.Section 64 sets out the process for completing the transfer or assignation of a tenant’s interest.
306.Subsection (1) provides that the consideration payable for the land or tenant’s interest in respect of which the Part 5 right to buy is exercised is the value of that land or interest as assessed under section 65 by the valuer appointed by Ministers.
307.Subsection (2) provides that, subject to subsections (3) to (5), the consideration must be paid not later than six months after the date on which Ministers consented to the right to buy application under section 54.
308.Subsection (3) specifies circumstances where either this payment deadline will not apply or where an alternative deadline will apply. In particular, it allows the landowner, or tenant where the application is to buy a tenant’s interest, and the Part 5 community body, or third party purchaser where relevant, to agree an alternative payment date. It provides that, where the assessment of the valuation of the land or tenant’s interest or determination under section 66 (as the case may be) has not been completed within four months of the date that the Scottish Ministers consent to the application, then payment must be made not later than two months after the date of completion of the valuation or two months after the date when the section 66 determination is made, whichever comes later. Finally, it provides that where the valuation or section 66 determination is subject to an appeal which has not been decided within four months of the date of Ministers’ consent, payment must be paid not later than two months after the date of the decision on the appeal against the valuation or, as the case may be, not later than two months after the date of the decision on the appeal the appeal against the section 66 determination, whichever occurs later.
309.Subsection (4) specifies circumstances where Scottish Ministers may extend the final settlement date on application of any of the parties. This can be done where there is an appeal of a decision or determination in relation to a related application under section 54.
310.Subsection (5) specifies that, where the owner is unable to grant a good and marketable title to the Part 5 community body, or third party purchaser where relevant, by the date of payment, or, where relevant, the tenant is not able to assign the tenant’s interest to the Part 5 community body, or third party purchaser, as appropriate, then payment is to be made to and held by the Lands Tribunal pending either title is granted or the assignation effected or notification to the Lands Tribunal by the Part 5 community body, or third party purchaser where relevant, that it has decided not to complete the transaction.
311.Subsection (6) provides that the Scottish Ministers must within seven days acknowledge receipt of notice not to proceed under subsection (5), copying acknowledgement to the Keeper, the owner of the land, where the application is to buy a tenant’s interest, the tenant, and the Part 5 community body or, as the case may be, the third party purchaser.
312.Subsection (7) specifies that, if the consideration is not paid by the Part 5 community body, or third party purchaser where relevant, by the due date, then confirmation of intention to proceed is treated as withdrawn and so the right to buy will no longer be able to exercised (this subsection does not apply where subsection (5) applies).
313.Subsection (8) provides that, when the Part 5 community body, or third party purchaser is granted title to the land or is assigned the tenant’s interest, any heritable security which burdened the title or assignation immediately before granting of title or assignation will cease to do so once the interest of the Part 5 community body or third party purchaser is registered in the Land Register of Scotland.
314.Subsection (9) provides that a heritable security that related to land or a tenant’s interest other than that acquired through the Part 5 right to buy will continue to apply to that other land or interest.
315.Subsection (10) provides that where land is disburdened of a heritable security on purchase of the land or assignation of a tenant’s interest, then unless the creditors otherwise agree, the Part 5 community body, or third party purchaser where relevant, must pay the creditors under that heritable security whatever sums are due to them.
316.Subsection (11) provides that the Part 5 community body, or third party purchaser where relevant, must deduct any sums paid to a heritable creditor under the provisions of subsection (10) from the amount that the body is due to pay the owner or the tenant. In effect, the landowner or tenant will receive a sum for the land or tenant’s interest which will take account of the sum required to clear any securities.