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Lord Kingsland: I am sorry to have sounded churlish in the remarks I uttered. My reading of the modest changes made by the Government is somewhat different from that of the noble Baroness. Nevertheless, I shall take her comments into account and reflect on the matter before Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 29 and 30 not moved.]
Clause 25 [Use and maintenance]:
[Amendments Nos. 31 and 32 not moved.]
Clause 27 [Charges: general prohibition]:
Lord Kingsland moved Amendment No. 33:
- Page 12, line 23, at end insert--
The noble Lord said: Subsections (3) and (4) of Clause 27 provide for the extinguishment of existing charges over commonhold land in so far as they relate to the common parts. There is no provision to compensate a chargee for his loss. It might have been felt unnecessary if consent to an application to register a freehold estate in commonhold land had to be 100 per cent, including that of all proprietors of charges. In that context I refer to Clause 3(1)(c).
Such a provision seems necessary if consent is less than 100 per cent, as proposed in the relevant amendment, or if in some cases, consent is deemed to have been given under Clause 3(2)(e), or if consent is dispensed with under Clause 3(2)(f) or if a charge is not protected by registration or a caution against dealing.
Lord McIntosh of Haringey: In the grouping that was agreed, Amendment No. 33 was included in the group with Amendment No. 1. We shall, of course, try to answer it, but if the noble Lord had wished us to take it out, it would have been helpful to know in advance.
Lord Kingsland: I am most grateful to the Minister. It seems only just and consistent with Article 1 of the first protocol of the European Convention on Human Rights, which, as the Minister knows, refers to the peaceful enjoyment of property, that a chargee can get fair compensation or adequate substituted security before his charge over common parts is extinguished. I beg to move.
Baroness Scotland of Asthal: I am more than happy to repeat what I said when I spoke to this matter earlier today. The noble Lord will remember that I answered this issue in relation to Amendment No. 33 when I commented on Amendment No. 19. I said at that stage in relation to Amendment No. 33 that it provides for chargees to consent to the extinguishing of charges over land that is to become part of the common parts. The Bill already provides for such consents by registered chargees in Clause 3. The arrangements made between the applicant for registration and the chargees as to compensation or the substitution of security seem to us to be a matter to be sorted out between them.
I am afraid that these amendments, as we have already respectfully suggested--and I am happy to repeat it--are defective in almost every respect. They would achieve only the basis for a scheme that would be expensive and unwieldy and, in our view, next to impossible to manage. I think that was the penultimate matter that I dealt with.
Lord Kingsland: I am aware that the Minister had responded to my Amendment No. 33, before I had spoken to it. I hoped that, having heard me speak to it, she would on reflection change her mind. Plainly, she has not done so. In those circumstances, I shall further reflect on the matter. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [New legal mortgages]:
Clause 30 [Form and content: general]:
Lord Kingsland moved Amendment No. 35:
The noble Lord said: There is a large number of amendments in this group, and also some amendments in the group beginning with Amendment No. 26, to which I draw the attention of the Committee.
I shall not deal with each amendment. It will suffice to draw the Committee's attention to the purpose behind this group of amendments. The purpose is to insert on the face of the Bill the details that would be required to establish a commonhold community statement and the provisions for the memorandum and articles of association of the commonhold association.
I had given notice to the Minister, the noble Lord, Lord McIntosh of Haringey, of my intention to do this; and my intention was formilated in an earlier debate that took place in the Grand Committee last winter. I had hoped that the Government would be prepared to accept that these two documents, or at least the framework for them, would form part of schedules to the Bill, in the best traditions of the 1925 property legislation. However, having heard the noble Lord, Lord McIntosh, speak on several occasions on this issue, I despaired of that occurring.
Therefore, the real motive for my amendments today is to get the draft regulations that the Government have kindly published--in both the CCS and the memorandum of association--on to the face of the Bill today, so that at a later stage I shall be in a position to table amendments. The direction in which I wish to take both those schedules is, to some extent, indicated by the other amendments in the group.
The noble Lord, Lord McIntosh, rightly admonished me at Report stage earlier this year for having tabled what I thought the schedules ought to be, rather than what the Government thought the schedules ought to be. I hope I have learned from that experience. I have therefore taken the Government's drafts and tabled them as schedules. If the Government accept that, it would be my intention to amend them on Report and for the matter to be resolved at Third Reading. If, of course, the Government do not accept that approach, I shall have to consider very carefully whether to re-table these amendments at Report stage, seek the support of the House to defeat the Government and then amend the schedules at Third Reading.
I hope that I have said enough to enable the noble Lord, Lord McIntosh, or the noble Baroness, Lady Scotland, to respond to this group of amendments.
Lord Monson: Perhaps I may seek clarification of Amendment No. 192, to which Amendments Nos. 35 and 36 are paving amendments. It is true that Amendment No. 192 is tabled in the name of the noble Lord, Lord Kingsland. It is not a government amendment. However, I believe that in its entirety it replicates the most recent draft commonhold
Why in paragraph 22 is it made obligatory for each unit-holder to insure his or her contents? It is a sensible thing to insure one's contents, but surely it is nobody else's business if one fails to do so. If your contents are stolen or burned, you are the only loser. It does not affect the other unit-holders at all. Of course, paragraph 23 puts teeth into the provisions of paragraph 22. Similarly, paragraph 25 provides that each unit-holder shall maintain the interior of his property, and paragraph 26 gives the teeth to that.
It is clearly right that each unit-holder should ensure that nothing that happens in his unit adversely affects others, such as allowing taps to drip and baths to overflow, but that is covered by paragraph 61. If, for example, a unit-holder demolishes an interior, non-load-bearing partition and fails to re-erect it, why should that be any business of the other unit-holders? It does not affect them in any way. I should be grateful for an explanation of why those two rather onerous provisions are included in the draft.
Lord Kingsland: It would be entirely appropriate for the Government to respond to the noble Lord. It is the Government's draft.
Lord McIntosh of Haringey: We have already debated that specific issue in the absence of the noble Lord, Lord Monson, on an amendment moved by the noble Lord, Lord Williams of Elvel. I refer the noble Lord to Hansard when it is produced.
I have made a rod for my own back. It has been my principle in business all my life that if I have failed to communicate something, that is my fault and not the fault of the person to whom I have failed to make the communication. I was seeking to persuade the noble Lord, Lord Kingsland, to do what I did in opposition on a number of occasions when I thought that the substance of the legislation was contained in various secondary documents, whether codes of conduct, draft memorandum and articles or whatever, and that we could not debate the substance of the Bill effectively unless we had them on its face for the purposes of debate.
It was never my argument that codes of conduct, guidance principles, memorandum and articles, community statements or any such document should stay on the face of the Bill and I do not believe that that is the point the noble Lord is trying to make. I am merely setting the scene because the noble Lord is suggesting that we should leave the matter before the Committee now, debate it at the Report stage and take it off again at Third Reading.
What I did in opposition was rather different. I tried to concentrate the minds of the then government by putting the code of conduct in an amendment and immediately proposing a huge number of amendments to my own. The noble Earl, Lord Caithness, the noble Baroness, Lady Blatch, and other distinguished Ministers thought that that was outrageous, that I was doing things which had never been done before and was abusing the procedures of the House. Generally speaking, I got a lot of stick for it.
However, I believe that I was right and that what the noble Lord, Lord Kingsland, is trying to do is defensible. I just do not believe that he is doing it in the right way. It would have been clearer for all of us if instead of having a number of amendments in this and previous groups he had tabled as the two schedules what are now Amendments Nos. 192 and 193. By the way, they are in the wrong place--of course, they should have appeared in the Marshalled List after Schedule 2. That is the fault of the Public Bill Office and not my fault.
"(6) A charge shall not be extinguished under subsection (3) or (4) unless either--
(a) the chargee first consents in writing,
(b) fair compensation is paid to the chargee for such extinguishment, or
(c) adequate substituted security is provided for the chargee by way of a charge, or charges, on one or more of the commonhold units in the commonhold.
(7) The county court shall have jurisdiction to determine any matter arising under subsection (6) whatever the amount or value of the compensation or security involved."
6 p.m.
Page 13, line 15, leave out "prescribed"
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