§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Brandreth.]10.31 pm
§ Mr. Jimmy Hood (Clydesdale)
I have long awaited the opportunity to have this debate, Mr. Deputy Speaker, and I should like to thank Madam Speaker for finally selecting me to have the Adjournment debate.
Last Wednesday, the hon. Member for Banff and Buchan (Mr. Salmond) had a debate on land reform in Scotland. I congratulate him on his success in raising the issue, which I intend to cover in more detail than the hon. Gentleman and the other hon. Members managed to do then. The hon. Gentleman admitted that he exercised some restraint when describing the behaviour and antics of Mr. Brian Hamilton, the so-called "raider of the lost titles", but I can tell the House that I intend to free myself from such restraint. I intend to speak based on my experience of meeting him. My opinion of him is not a good one, and I am sure that, having heard of that man's activities, most will share my view.
I first became aware of the problem through a local councillor for Boghead, Councillor Esther Serrels, deputy provost of South Lanarkshire council. I would like to record my thanks to and appreciation of Councillor Serrels for her outstanding and tireless work on behalf of the people of Boghead and Kirkmuirhill, who have been on the receiving end of those outdated and abused Scottish land laws.
Councillor Serrels arranged a meeting at my constituency office on 26 August, which was also attended by a delegation of Boghead residents. They informed me of a litany of harassment, threats and intimidation. For example, bank accounts had been arrested, sheriff officers had served warrants, bailiffs had evaluated household goods for warrant sales, and threats of evictions had been made, as well as repeated calls of a threatening and intimidating nature. Such calls seem to be a common feature of Mr. Hamilton's tactics.
There was the case of Mr. and Mrs. Reid. Hamilton obtained an eviction order to evict them from the home in which they had lived for the previous 20 years, after a dispute over the ownership. The previous owner was an old lady who had sold the house to the Reids for £500. She gave them a receipt for the sale, but died two weeks later, before conveyancing had been properly completed. Mr. Hamilton reputedly bought the right of claim for ownership from the old lady's family for £4,000. He sued Mr. Reid for £29,000, in addition to £11,000 in back casualty payments.
Hamilton's attitude towards the Reids was vicious and venomous, and his behaviour was abusive and derogatory. He revelled in the torment that he inflicted on the couple.
I attended a public meeting in Boghead, on 11 September 1996, and met members of the community—among whom were some ordinary people who had been living a normal life one minute, but whose lives were threatened and virtually ruined the next. Forty families have been affected in Boghead, but they have received little or no help, except for the comfort of concern expressed by each other, their local councillor and their Member of Parliament, and by some other supporters.
462 I decided to try to meet Mr. Hamilton to see at first hand what type of person threatens and intimidates an 88-year-old pensioner and a young widow and evicts people such as the Reids from their homes. I wrote to him, requesting a meeting. He agreed. I announced that Councillor Serrells and I would travel to Stonehaven, on Friday 27 September 1996, to discuss all the issues. Hamilton immediately released a statement to the press, stating that he would not meet with "that woman Serrells". It seems that Councillor Serrells had said something critical of his conduct—which should surprise no one.
I telephoned Hamilton, and I told him that Councillor Serrells was the local councillor, and that he was objecting to the attendance of one of the most decent, respected and admired women in the county of Lanarkshire. He reluctantly withdrew his objection to her attendance, and she and I set off to meet "the raider of the lost titles".
We decided that our approach would be to express our concerns, as expressed to us by our constituents, and then to listen to him and allow him to talk as much as possible. I was keen to discover what sort of chap he was, and he certainly displayed conduct that could be described as evil. Our meeting lasted for two hours, and the experience was worth the three-hour drive up and the three-hour drive back.
I should say something about how Hamilton behaved and operated in Boghead. Last Wednesday, the hon. Member for Banff and Buchan briefly mentioned George Malone, but—understandably, because of time factors—he did not give a full account of Mr. Malone's treatment. Hamilton had initially demanded £9,000 from George Malone, an 82-year-old pensioner. He then reduced his demand to £4,800 and said, "Pay up and shut up, or I will withdraw my offer." The debt owed to Hamilton for a casualty fee was, in pre-decimalisation money, 1s 7d—or 8.5p in modern currency. Hamilton was trying to intimidate that old man to pay him £9,000 to buy the casualty that he owned on the house. When Mr. Malone passes on, there will be no casualty fee due because the house will pass to his son. When Hamilton agreed during our meeting to drop his demand against Mr. Malone, it may have been influenced by the fact that he was going to get nothing this side of 20 years anyway, although he still owns the casualty for the property. I could cite many more examples but I shall give only a few because of the constraints of time.
Mrs. Anne Judge, a young widow recently bereaved, had her bank account frozen by Hamilton. Bailiffs and sheriffs were sent round to value her property for warrant sales. Her lawyer behaved less than honourably too, by running up further legal bills when he knew that he and/or his firm had failed Mr. and Mrs. Judge by not properly advising her and her then husband of their liabilities when they bought the property. When Hamilton froze their bank account, he had the neck to telephone her to say that he had to do it so that she would push her lawyer into a quick settlement. That young woman had been widowed for only five months and Hamilton had no regard for her well-being. He was driven by greed for money.
In another case, a young couple, Fiona and Hunter Fairley, bought their home as an investment with a view to renovating and improving it. Like Mrs. Judge, Mr. and Mrs. Fairley were not served well by their lawyer, Mr. Scanlon, and subsequently had to sue him. Mr. and Mrs. Fairley were devastated by their experience and put 463 it down on paper for me to consider before speaking in this debate. What the House is about to hear is not an isolated case—indeed, far from it. Their experience is nearer the norm when evaluating Mr. Hamilton's activities and behaviour.
The couple wrote:October 1994I was contacted by Mr. Hamilton concerning the feu on our 999 year lease. I immediately contacted our solicitor at the time (Mr. Scanlon). He said he would retrieve our title deeds to review them.Mr. Hamilton phoned again, explained about the feu and pointed out that it had not been paid for a number of years. As we now owned the property it fell on us to pay for previous owners. At the time Mr. Hamilton seemed friendly. We thought he was working on behalf of the current landlord. We readily accepted any advice he gave us. As he put it he was just doing his job.Mr. Scanlon didn't seem to be bothered about the feu. He thought it would be thrown out of court as it was an old law.… Mr. Hamilton seemed to think that Mr. Scanlon would pass it on to his insurers to pay, as he had not seen the clause in the title of deeds before we bought the house. We thought it best to leave it in the hand of our solicitor as he knew about these things.Mr. Hamilton phoned regularly until the end of February to find what was happening as seemingly he couldn't get in contact with Mr. Scanlon.February. We received a summons to attend a court hearing on behalf of Mr. Hamilton. We contacted our solicitor again. He said he would get a stay of action until we could prepare a case to defend ourselves.March 20th. After phoning Mr. Scanlon repeatedly over the last couple of weeks I eventually got to speak to him. He told me that everything was fine and that he would get in contact with me if anything happened.March 28th. Mr. Hamilton contacted me to say that we were supposed to have been in court on March 14th and that Mr. Scanlon sent another solicitor to court to say that Mr. Scanlon had resigned from our case.The court ruled in favour of Mr. Hamilton.…December. Mr. Hamilton threatened us with sheriff officers. It has been difficult to further the case as Mr. Scanlon is keeping some of our case notes from us.Our new solicitor has written repeatedly asking for the remainder of our file, but Mr. Scanlon is ignoring them.Our solicitor wrote to the Law Society complaining about Mr. Scanlon. I also phoned them.Knock at door. Two men hand me a writ. It said if we don't pay Mr. Hamilton the money that we owe him, sheriff officers will come into our house and value our possessions for sale. Our solicitor contacted Mr. Hamilton's solicitor to ask what was going on. Mr. Hamilton had agreed to wait for his money until we could sue Mr. Scanlon.Two days later I got another phone call from Mr. Hamilton. I asked him what he was playing at sending sheriff officers with a writ after he had said he would wait for his money. He replied that he didn't think our solicitor was keeping on the ball and this was just to scare us so as we would get the ball rolling. I explained that it was Mr. Scanlon who was holding it up.A week before Christmas, took some of our possessions out of our house in case the sheriff officers came back. Was scared in case they took the kids' presents.January. Keep getting phone calls from Mr. Hamilton. He keeps hassling us. Informed our solicitor to write to Mr. Hamilton's solicitor to tell him to stop hassling us and to get in contact through my solicitor and not phone me.464May. The Sun Alliance (Mr. Scanlon's insurers) got in touch with Mr. Hamilton to sort out the mess. They have agreed on a sum for the feu and are trying to agree a sum for buying the casualty clause.June. Mr. Hamilton is still hassling us. He called to inform me that the insurance company might get in touch to offer us a sum of money if we don't claim anything else after they pay the feu to Mr. Hamilton. He said it would be in our own interest if we refused it as they would approach him with a better sum. I refused and said I'd think about it. He then told me that if I accepted the money that they offered then I would still have the clause on the house and if we passed the house to the boys in years to come he would still get his money.Phoned solicitor to write to Mr. Hamilton's solicitor again telling him to stop phoning us.July. At last! Solicitor asked to see us to sign the papers confirming Sun Alliance had paid Mr. Hamilton.Now we don't have this hanging over our heads any more. Sun Alliance also wanted us to sign a letter stating that we won't be making any further claims against Mr. Scanlon. We refused. We are awaiting word from our solicitor on whether the Law Society will reprimand Mr. Scanlon.Those are not the actions of a decent person who was only taking advantage of the law.
Before coming to my conclusions, I want to alert hon. Members to another problem that could potentially devastate private home owners in Scotland—superiorities. Do hon. Members have superiors over their homes?
I recently met a constituent who has given me permission to mention his case here tonight—Mr. Maurice Benyon of 12 South avenue, Carluke. Mr. Benyon lives on what he describes as a Barratt estate in Carluke. He bought a house from Barratt and had extra land where he wanted to build another building. He applied for planning permission but was told by Barratt or its agents that they were the superior of the estate and that he would have to pay them £5,000 for permission to build. The superior can also charge for significant alterations to homes or extensions. The potential for panic and damage to the housing market is overwhelming. That is why this outdated law has to be changed.
I want to draw my remarks to a close. I apologise for the time that I have taken, but I hope that hon. Members agree that the people's stories had to be told. I hope that I have done that tonight.
Mr. Hamilton challenged me to name any individuals who have had to pay him money directly. I can answer his challenge tonight.
The masonic hall in our area paid Mr. Hamilton £6,300; it was not the insurers. The local hairdresser's shop paid him £1,150; it was not the insurers. A plant hire shop paid him £255; it was not the insurers. Mrs. Judge, a recent widow, and Mr. and Mrs. Arlott are still being drawn through the courts, defending themselves from demands for many thousands of pounds.
Mr. Hamilton has sought to portray himself as a man who is only exploiting a bad law, and he says that only lawyers get hurt. The media, while being been critical of him, have assisted in fostering that perception. I met the man and I have seen what he has done to good, decent people, from an 82-year-old pensioner to a recently widowed woman, and many others.
Mr. Hamilton is not just a land speculator. He is an evil, twisted man. He invades people's lives and seeks to destroy them on the altar of making money from a bad law. When I met him, I had the impression that he probably had a very unhappy childhood. He is so 465 embittered. His hatred for Mr. and Mrs. Reid, whom he had never met, but whom he sought to destroy, was sickening to see.
I say to the Hamiltons of this land, "When you seek to deprive people of their dignity, you expose your own lack of it." I say to the Hamiltons of this land, "When you attack and abuse my people, as you did the people of Boghead, you are awakening a determination in me to rid Scotland of your like—the raiders of lost morals." I say to the Minister tonight, "Get off your backside and get the Scottish land laws reformed and modernised to take us into the new millennium without the feudal entrails of the worst moments of our history."
I cannot help but reflect on the comments of my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith) last Wednesday. He reminded us that the 1979 Labour Government were in the process of changing the Scottish land laws to do we are seeking to do now. The Minister today can do what Labour was prevented from doing in 1979. I invite him to get on with it.
§ The Parliamentary Under-Secretary of State for Scotland (Mr. Raymond S. Robertson)
I first congratulate the hon. Member for Clydesdale (Mr. Hood) on securing this Adjournment debate. I thank him for raising again the issue of leasehold casualty payments which, as we have heard in his speech, are causing grave difficulties for some of his constituents.
I understand and appreciate the concerns that the hon. Gentleman has expressed about some of the demands that are being made on his constituents. This matter was touched on briefly in the House last week when, hon. Members will recall, the hon. Member for Banff and Buchan (Mr. Salmond) secured a debate on land tenure and land ownership in Scotland. On that occasion, I expressed my deep concern for owners of leasehold properties, such as those in Boghead in Lanarkshire, who were being confronted by demands for casualty payments.
However, as I told the House then, although the Government are concerned about the severe distress being caused to some tenants, neither Ministers nor their officials have any powers to intervene in individual cases of dispute. Perhaps it would be helpful if I explained some of the background to the problem.
The problem of casualty payments relates specifically to leasehold property. As hon. Members will be aware, very little land in Scotland is held on leasehold tenure. What there is is concentrated in particular geographical areas, reflecting the practice of a few earlier landlords leasing to private householders instead of feuing. Consequently, a preponderance of titles in a small village may be leasehold whereas few if any residential titles in a large town or city will be. Even in areas where leasehold is common, no new long residential leases can now be created following the passing of the Land Tenure Reform (Scotland) Act 1974.
The incidence of casualty clauses in leasehold titles is a further imponderable, but again they appear to be concentrated in individual estates. A casualty is a payment falling due to a superior or landlord on the happening of events of uncertain date or occurrence. They are usually based on one year's net rental value of the property. Casualties relating to properties held on feudal tenure were progressively abolished by the Feudal Casualties 466 (Scotland) Act 1914. The imposition of leasehold casualties in new leases was prohibited by section 16 of the Land Tenure Reform (Scotland) Act 1974.
The landlord continues, however, to have the right to collect casualties that were imposed on a long lease before that date. Therefore, the problem of casualty payments is restricted to a relatively small number of people with existing leasehold casualty clauses in leasehold titles in specific parts of Scotland.
Clearly, solicitors should advise their clients of the existence of such casualties when acting on their behalf in the purchase of a property that is held under a leasehold, as opposed to a feudal title. As leaseholds, and therefore leasehold casualties, are uncommon except in certain geographical areas such as Lanarkshire and are couched in unfamiliar terms, they can easily be overlooked by solicitors.
Until recently, many if not most landlords did not bother to collect casualty payments. Now, however, some new landlords have acquired leasehold interests with the specific intention of collecting long-neglected payments. Tenants may therefore be confronted by an unexpected demand for a payment. In addition, it is possible that landlords may succeed in an attempt to show that incoming tenants are liable for past unclaimed casualties.
Although we all sympathise with the tenants who have been placed in such a position, and I should like to record my own personal distaste for the methods being employed to extract payment, I must reiterate that leasehold casualty payments remain lawful, legitimate burdens on leasehold property.
The duty falls on solicitors acting for clients intending to purchase leasehold property to identify provisions for leasehold casualties in the title deeds and to warn their clients of the possible consequences. If the solicitor fails in that duty, he lays himself open to a claim for negligence against his professional indemnity insurance.
I understand that the landlord of the properties in Boghead is encouraging tenants to make such negligence claims against solicitors who acted for them in the purchase of their properties as a means of making the casualty payments.
The hon. Gentleman asked for legislation in order to alleviate the problem. It would be ideal if we could wave some legislative wand to solve the problems of the tenants in Boghead and elsewhere. Regrettably, in the real world, there is no easy solution.
Existing leasehold casualties cannot simply be abolished without making provision for compensation for the landlords for loss of future income. To do so would be to contravene the principles of the European Convention on Human Rights. Casualty payments that are already due would be unaffected and would remain payable by the tenant. Therefore, nothing can be done to change the present position of the hon. Gentleman's constituents. Their recourse has to be to their solicitors.
I am aware that others have suggested two possible solutions.
§ Mr. Robertson
I did not intend to be offensive. I was merely setting out the position and pointing out to the hon. Gentleman why the action that he has requested is, in part, impossible.
Part 1 of the Long Leases (Scotland) Act 1954 allowed tenants to convert leases into feus for a payment in compensation to the landlord. The Act provided that this could be done only during a period of five years after the passing of the Act.
It has been suggested that that legislation should be resurrected. This would not, however, remove the need to provide for compensation to landlords, nor would it do anything to help tenants where casualty payments are already due.
The other possible solution involves the Feudal Casualties (Scotland) Act 1914, which banned the creation of any new feudal casualties after the commencement of the Act, as has since happened for leasehold casualties in the Land Tenure (Scotland) Act 1974. It also set up a system for redemption of old ones within 15 years, either by agreement or upon payment of compensation by the proprietor to the superior to a scale contained in the Act. Redemption other than by agreement did not apply to any casualties that were already due. That meant that if the feudal superior did not agree, the owner had to compensate him for the loss of income.
Section 23 of the 1914 Act states that the Court of Session may provide by Act of Sederunt for the redemption and extinction ofany rights of the nature substantially of casualties which are not comprised within the scope of this Acton terms seeming to the court to be just and equitable on the analogy of the provisions of the Act.
I understand that the possibility of an Act of Sederunt under section 23 to provide for the compulsory redemption and extinction of leasehold as opposed to feudal casualties has been considered. There were, however, concerns both about the vires of the action 468 proposed, particularly given the likelihood of legal challenge from the more commercially minded landlords, and about the resources that the Court of Session would need in order to determine realistic compensation rates for landlords. In any event, the proposal would do nothing to alleviate the immediate problems in Boghead.
A real solution to the problem of leasehold casualties can come only with reform of the law on long leases in general and as part of a package that involves compensation. The Scottish Law Commission is to look at the law on long residential leases as part of the major review of property law that it is at present undertaking. The commission cannot take matters forward until it has completed its present work on the law of the tenement and feudal system.
No one who was present at the Adjournment debate last week can doubt the strength of feeling of honourable Members from both sides of the House over the need to abolish the remaining aspects of the feudal system. As I made clear at that time, the Government are fully committed to doing so as soon as possible once we have received the commission's report.
Reform of the law of the tenement is also very important and will affect many people in Scotland. It has to be right that the commission tackles work in those vital areas first. I understand that the commission hopes to issue its report on the law of the tenement during 1997 and on abolition of the feudal system thereafter. It will, however, require to devote all its property law resources to achieving that: feudalism has survived for nearly 1,000 years and is deeply embedded in the private law of Scotland. It is an immensely complicated area of law. The abolition of one system of land tenure and its replacement with a new system of absolute ownership requires a great deal of consideration and public consultation. Many conflicting points have already been raised and will have to be taken fully into account.
Once the commission's report on the feudal system is delivered it can turn to leasehold tenure. No legislative solution can help the residents of Boghead whose leasehold casualties are already due. Once again, I wish to express my sympathy for their plight and my hope that their individual difficulties may be speedily resolved.
§ Question put and agreed to.
§ Adjourned accordingly at one minute past Eleven o'clock.