Asset Transfer under the Community Empowerment (Scotland) Act 2015
There are a number of requirements placed upon "relevant authorities" under the Act. (These authorities are defined in the Act and include local authorities.) Some of the detail, including the manner and procedure for the submission of and dealing with asset transfer requests, is provided via secondary legislation.
Summary of Key Points below but please read the Guidance Notes to the Act for Detail.
Agreement to transfer
The authority must decide whether to agree to or refuse the request.
The relevant authority must agree to an asset transfer request unless there are reasonable grounds for refusing.
In reaching its decision, the authority must take into consideration the following matters -
- the reasons for the request;
- any other information provided in support of the request (whether such other information is contained in the request or otherwise provided);
- whether agreeing to the request would be likely to promote or reduce:
· economic development,
· public health,
· social wellbeing, or
· environmental wellbeing; and
4. any other benefits that might arise if the request were agreed to.
The Act provides that the "community transfer body" (see below) may appeal the decision of the relevant authority. In most cases appeal is either to the Scottish Minsters, or for review by the local authority concerned and then ultimately to the Scottish Minsters.
Register of Land
The Act obliges the relevant authorites to maintain a register of land which, to the best of its knowledge and belief, is owned or leased by the authority. The register is to be made public and be available via website or other electronic means. It should be noted that omission of land from the register will not prevent an asset transfer request.
The authority must publish asset transfer reports yearly detailing the number of asset transfer requests and appeals along with any action taken by the authority to promote the use of asset transfer requests and to support the community transfer body in the making of an asset transfer request.
Community Organisation Eligibility
To become eligible for any form of asset transfer a group needs to be considered to be a "community transfer body". Distinction is made between which type of body can request an asset transfer by way of:
- ownership; and
- lease or eg management.
For ownership, the community transfer body has to be a "community controlled body" as designated under section 19 of the act (see below) AND a "community transfer body" as desginated under section 80 of the act which makes them “a community transfer body eligible to make an asset transfer request for ownership”. Section 80 states they should be:
- A Scottish Charitable Incorporated Organisation (SCIO) the constitution of which includes provision that the organisation must have not fewer than 20 members; or
- A Community Benefit Society (BenCom) the registered rules of which include provision that the society must have not fewer than 20 members; or
- a company the articles of association of which include provision that:
(a) the company must have not fewer than 20 members; and
(b) on the winding up of the company and after satisfaction of its liabilities, its property (including any land, and any rights in relation to land, acquired by it as a result of an asset transfer request under this Part) passes—
(i) to another community transfer body,
(ii) to a charity
(iii) to such community body (within the meaning of section 34 of the Land Reform (Scotland) Act 2003) as may be approved by the Scottish Ministers
(iv) to such crofting community body (within the meaning of section 71 of that Act) as may be so approved, or
(v) in no such community body or crofnting community body is so approved, to the Scottish Ministers or to such charity as the Scottish Ministers may direct.
For lease, management and other rights, the group has to be:
- Community-Controlled Body under section 19 of the act which means a body (whether corporate or unincorporated) which has a written constitution that includes the following—
(a) a definition of the community to which the body relates;
(b) provision that the majority of the members of the body consists of members of that community;
(c) provision that the members of the body, who consist of members of that community, have control of the body;
(d) provision that membership of the body is open to any member of that community;
(e) a statement of the body's aims and purposes, including the promotion of a benefit for that community; and
(f) provision that any surplus funds or assets of the body are to be applied for the benefit of that community.
Making a Request
A community transfer body making an asset transfer request must specify in the request—
- the land to which the request relates;
- the reasons for making the request,
- the benefits which the community transfer body considers will arise if the authority were to agree to the request; and
- if the request is for ownership, the price; or if the request is for a lease or other, the rent, duration and if applicable, the nature and extent of the rights sought.