FIRST SCHEDULEProvisions as to dwelling-houses rendered uninhabitable
1
Where a dwelling-house is affected by subsidence damage occurring after the passing of this Act, the provisions of this Schedule shall have effect as respects any period (in this Schedule referred to as " the period of dispossession ") during which both the following conditions are satisfied, that is to say—
(a)
that by reason of deterioration due to the subsidence damage in the condition of the dwelling-house, and having regard to the time which will be required to remedy that deterioration, the dwelling-house is not in a reasonably fit state for it to be used as such ; and
(b)
that the dwelling-house is not used as such by or with the authority of the person who immediately before the occurrence of the subsidence damage was entitled to possession thereof (hereinafter in this Schedule referred to as "the occupier ")
2
(1)
Subject to the provisions of this Schedule, in the case of any person ordinarily resident in the dwelling-house during the period immediately preceding the occurrence of the subsidence damage (hereinafter in this Schedule referred to as a " resident") the Board shall so long as the period of dispossession lasts be under an obligation at all times—
(a)
to make available alternative living accommodation which—
(i)
is of a standard comparable to the general standard of the housing accommodation under the management of the local authority for the purposes of Part V of the Housing Act, 1936, or, as the case may be, for the purposes of the Housing (Scotland) Act, 1950, for the area in which the dwelling-house is situated ; and
(ii)
is otherwise reasonable having regard to all the circumstances, including the probable duration of the period of dispossession ; or
(b)
as respects any of the first thirty days of the period of dispossession during which such alternative living accommodation as aforesaid is not made available, to pay to the resident in question the amount, if any, by which the aggregate expenditure reasonably incurred by him by way of rent, rates, food, living accommodation, heating, light and other household expenses exceeds what it would have been if the subsidence damage had not occurred and he had continued to reside in the dwelling-house; or
(c)
as respects any other part of the period of dispossession during which such alternative living accommodation as aforesaid is not made available, to pay to the resident in question the amount aforesaid or the amount which would be payable by way of rent for accommodation equivalent to such alternative living accommodation as aforesaid whichever amount is the less:
Provided that the Board shall not be under any obligation under this sub-paragraph in respect of any part of the period of dispossession during which, irrespective of the subsidence damage, the resident in question would not have been residing at the dwelling-house.
(2)
Where the Board are under an obligation towards a resident by virtue of the foregoing sub-paragraph, the Board shall also be under an obligation with respect to the contents of the dwelling-house to provide, or to pay to that resident any expenditure reasonably incurred by him in providing, for any removal or storage thereof reasonably required during the period of dispossession as a result of the subsidence damage and any removal thereof reasonably required as a result of the termination of the Board's obligations towards that resident under the foregoing sub-paragraph:
Provided that the Board shall not be under any obligation under this sub-paragraph in respect of the contents of any part of the dwelling-house which, immediately before the occurrence of the subsidence damage, was not used for the purposes of a private dweling and the said obligations shall not extend to storage in or removal to any place outside Great Britain.
(3)
Subject to the provisions of sub-paragraph (2) of paragraph 4 of this Schedule, and without prejudice to their liability under the two foregoing sub-paragraphs in respect of any part of the period of dispossession falling before the making of their election, the Board may elect which of the courses open to them under the two foregoing sub-paragraphs they will for the time being adopt in any particular case.
3
(1)
Subject to the two following sub-paragraphs, the obligations of the Board towards any resident under sub-paragraph (1) of the last foregoing paragraph shall cease, notwithstanding that the period of dispossession has not expired—
(a)
if the occupier has ceased (otherwise than by reason of his death) to be entitled to possession of, or, as the case may be, of the site of, the dwelling-house ; or
(b)
on the expiration of a period of six months from the service by the Board on the resident in question of notice in writing of the opinion of the Board that the period of dispossession will continue indefinitely or that the said period will be unreasonably long or that the resident in question will not resume residence at or on the site of the dwelling-house at the expiration of that period.
(2)
Where a damage notice has been served in respect of the dwelling-house, the Board shall not be entitled to serve a notice under sub-paragraph (b) of the foregoing sub-paragraph on the grounds that the period of dispossession will continue indefinitely or will be unreasonably long—
(a)
unless the Board have elected to make a payment in respect of the dwelling-house under subsection (3) or subsection (4) of section one of this Act; or
(b)
while a notice under subsection (2) of section three of this Act is in force with respect to the dwelling-house.
(3)
Any person upon whom a notice under the said paragraph (b) is served may apply to the county court or, where the dwelling-house is situated in Scotland, to the sheriff, and the court or sheriff, if satisfied that there are not reasonable grounds for the opinion of the Board, may declare the notice to be of no effect.
4
(1)
The Board shall not be under any obligation by virtue of (paragraph 2 of this Schedule unless either the owner or the occupier of the dwelling-house is a resident and has given to the Board notice to writing, in such a manner, within such time and containing such particulars as may be prescribed, that in his opinion the condition Specified in sub-paragraph (a) of paragraph 1 of this Schedule is satisfied, and has afforded the Board reasonable facilities to inspect the dwelling-house so far as he was in a position to afford such (facilities.
(2)
As soon as reasonably practicable after receiving from any person a notice under the foregoing sub-paragraph, the Board shall give to that person notice in writing as to whether or not they agree with that person's opinion and, if they so agree, as to the manner in which they propose to discharge their obligations under paragraph 2 of this Schedule, and where in the circumstances of any particular case it appears to the Board appropriate so to do they may serve a separate notice such as aforesaid on any other resident; and where they have so given notice to any resident of an intention to adopt in his case the alternative set out in paragraph (a) or paragraph (c) of sub-paragraph (1) of the said paragraph 2, they shall not adopt in his case the other of those alternatives without his consent, which shall not be unreasonably withheld.
5
(1)
Where, in pursuance of paragraph (a) of sub-paragraph (1) of paragraph 2 of 'this Schedule, the Board have made alternative living accommodation available to a resident, the following provisions of this paragraph shall apply.
(2)
The Board shall be entitled to possession of the accommodation so made available—
(a)
in a case falling within paragraph (b) of sub-paragraph (1) of paragraph 3 of this Schedule, at the expiration of the period of six months mentioned in the said paragraph (b);
(b)
without prejudice to any obligations of the Board under the said paragraph 2 or to the provisions of sub-paragraph (2) of the last foregoing paragraph, at any time not less than one week after the Board have served notice in writing on the resident in question of their intention to take possession ;
and where notice is given under paragraph (b) of this sub-paragraph, the said obligations shall continue until the expiration of the said week or such longer period as may be specified in the notice notwithstanding that the period of dispossession may have expired.
(3)
The Board shall be entitled to recover as a civil debt from the resident in question any amount by which the aggregate expenditure incurred by him by way of rent and rates is less than it would have been if the subsidence damage had not occurred and he had continued to reside in the dwelling-house, reduced by any amount by which that resident shows that the aggregate expenditure reasonably incurred by him by way of food, living accommodation (other than rent or rates), heating, light and other household expenses is greater than it would have been in the circumstances aforesaid:
Provided that the Board shall not be entitled to recover any amount under this sub-paragraph in excess of the amount which would have been payable by way of rent for the alternative living 'accommodation if it had been provided by the local authority for the purposes of Part V of the Housing Act, 1936, or for the purposes off the Housing (Scotland) Act, 1950, for the area in which the dwelling-house is situated.
6
Where no damage notice has been served in respect of the dwelling-house or where the Board have elected to make a payment under subsection (3) or subsection (4) of section one of this Act, then, during any period while the Board are under an obligation by virtue of sub-paragraph (1) of paragraph 2 of this Schedule, they may exercise in the name of the occupier any right with respect to the repair of the dwelling-house exercisable by the occupier against any person other than the Board.
7
Where the Board have elected to make a payment in respect of the dwelling-house under paragraph (b) of subsection (3) of section one of this Act, the Board shall be entitled to recover as a civil debt from the owner of the dwelling-house any amount by which the expenditure of the Board under this Schedule in connection with the dwelling-house exceeds what it would have been if only remedial works had been executed.
8
Where a person entitled to serve a notice under paragraph 4 of this Schedule also has a right apart from this Act to claim from the Board or any other person compensation or damage in respect of any of the matters dealt with by this Schedule, he shall not be entitled to relief in respect of the same matters both under this Schedule and under that other right.
SECOND SCHEDULEDetermination of Amount of Depreciation and Recipients of Certain Payments
1
For the purposes of determining under subsection (4) of section one of this Act the amount of the depreciation in the value of any property affected by subsidence damage which is caused by that damage, the unit of property to be taken into account shall be—
(a)
where any property which has suffered subsidence damage constitutes or is comprised in a rating unit, that rating unit; and
(b)
in any other case, such unit consisting of or comprising property which has suffered subsidence damage as may be determined by agreement between the Board and all persons entitled to serve a damage notice in respect of that damage or, in default of such agreement, in the manner provided by section thirteen of this Act, to be equitable in all the circumstances of the case:
Provided that a rating unit and property not included in any rating unit may, if it is determined as aforesaid to be equitable so to do, be treated for the purposes aforesaid as a single unit of property, and two or more rating units within the same curtilage and belonging to the same owner, or a rating unit part only of which has suffered subsidence damage, may in either case be treated for the purposes aforesaid either—
(i)
as a single unit of property; or
(ii)
as consisting of such separate units of property as may be determined as aforesaid to be equitable in all the circumstances of the case,
as may be so determined.
2
(1)
For the purposes aforesaid the amount of the depreciation in the value of a unit of property caused by any subsidence damage shall be taken to be the amount by which the value of the property in the state in which it was immediately after the occurrence of the damage is less than the value of the property in the state in which it was immediately before the occurrence of the damage, and the value of the property in either of the said states shall be taken to be the amount which it might have been expected to realise in that state on a sale effected immediately after the damage occurred, being in the case of property comprising land or buildings a sale of the fee simple in the open market and with vacant possession subject to—
(a)
any restrictive covenant, easement, quasi-easement, or other right inuring for the benefit of other land ;
(b)
any public right of way, right of common, or other right inuring for the benefit of the public or of any section thereof; and
(c)
any restriction imposed by or under any enactment,
to which the property was subject at the time immediately after the damage occurred, but free from any other incumbrance, and without regard to any liability of the property to become subject after the said time to any restriction by virtue of any enactment other than a closing order under section twelve of the Housing Act, 1936, or section ten of the Local Government (Miscellaneous Provisions) Act, 1953, or under or by virtue of section nine, ten, eleven or thirteen of the Housing (Scotland) Act, 1950:
Provided that—
(i)
except where a demolition order under section eleven of the said Act of 1936, a clearance order under section twenty-six of that Act, a closing order under section ten of the said Act of 1953 or a compulsory purchase order was in force in respect of the property immediately before the date of the occurrence of the damage, if any payment or payments would have fallen to be made under section one of the Slum Clearance (Compensation) Act, 1956, in respect of any person's interest in the property upon a compulsory purchase thereof in pursuance of a notice to treat served immediately before that date, the amount of the depreciation in the value of the property caused by the damage shall not be taken to be less than the amount, if any, by which the full compulsory purchase value within the meaning of the said Act of 1956 of that interest, or of all such interests taken together, for the purposes of that compulsory purchase would have been reduced if the notice to treat had been served immediately after that date;
(ii)
in the case of a unit of property consisting of or comprising property of a kind not normally the subject of sales in the open market, provision may be made by regulations made by the Minister for ascertaining the value of the property in any state by reference to such matters as may be specified in the regulations.
(2)
In determining for the purposes of the foregoing sub-paragraph the value of any property in the state in which it was immediately after the occurrence of the damage, any right to a payment under subsection (4) of section one of this Act in respect of that damage shall be disregarded.
3
A payment under subsection (3) or subsection (5) of section one of this Act shall be made to the person by whom the cost of carrying out the works in question is incurred, or, if that cost is incurred partly by one person and partly by another, shall be apportioned between them in such manner as may be determined by agreement or, in default of agreement, in shares corresponding to their respective shares in the cost.
4
Subject to the provisions of this Act, a payment under subsection (4) of section one of this Act shall be made to the person who is for the time being the owner of the property in question:
Provided that—
(a)
if any other person is liable to make good the whole of the damage to which the payment relates, the payment shall be made to him ;
(b)
if any other person is liable to make good any part of that damage, such part of the amount of the payment shall be paid to him as bears to the whole of that amount the same proportion as .the cost of meeting that liability bears to the cost of making good the whole of the damage.
5
Where the Board are satisfied that the interest in the property in question of any person to whom, apart from the provisions of this paragraph or paragraph 7 of this Schedule, the whole or part of a payment under the said subsection (4) would fall to be paid was, at the time immediately after the damage occurred, subject to a mortgage, the payment or that part thereof shall be paid to the mortgagee, and the mortgagee shall be liable to account therefor as if it had been proceeds of sale of that interest arising under a power of sale exercised by the mortgagee at the said time, except that the mortgagee shall not be entitled to credit for any costs incurred by him in connection with the claiming, ascertainment, apportionment or making of the payment:
Provided that—
(a)
if at the time when the payment is made the debt secured by the mortgage (other than any part thereof representing costs for which the mortgagee would not be entitled to credit) has been paid in full, the payment shall be disposed of as if the interest had not been subject to the mortgage ;
(b)
if the interest was subject to two or more successive mortgages, this paragraph shall have effect with the substitution for references to the mortgagee of references to the first mortgagee, or, if the preceding sub-paragraph has effect in relation to the first mortgage, to the second mortgagee, and so on ; and
(c)
in any case this paragraph shall have effect, as regards any mortgage, subject to any agreement between the mortgagee and the person who apart from that mortgage would have been entitled to receive the payment or part thereof.
6
(1)
The Minister may by regulations make provision as to the person to whom any payment under the said subsection (4) or any part thereof is to be paid in cases where the interest in the property in question of a person to whom, apart from the provisions of this or the next following paragraph, the whole or part of the payment would fall to be paid was at the time immediately after the damage occurred subject to a rentcharge; and any such regulations may apply all or any of the provisions of section twenty-five of the War Damage Act, 1943 (which relates to the rights of owners of rentcharges as to payments for war damage), subject to such adaptations and modifications as may be specified in the regulations.
(2)
In this paragraph the expression " rentcharge" means any annual sum charged on the property, not being rent incidental to a reversion.
7
Where the interest in the property in question of the person to whom, apart from the provisions of this paragraph, the whole or part of a payment under the said subsection (4) would fall to be paid is subject to a settlement or otherwise held in such manner that the person entitled to the interest would not be competent to give an effective discharge for the proceeds of a sale thereof, that payment or that part thereof shall be paid to the person so competent.
8
Where the interest in the property in question of the person to whom the whole or part of a payment under the said subsection (4) falls to be paid, or the proceeds of sale of that interest, are the subject of a devise or bequest, that devise or bequest shall be deemed to include that payment or that part thereof.
9
Where the interest in the property in question of the person to whom the whole or part of a payment under the said subsection (4) falls to be paid is the subject of a contract of sale or of a notice to treat served under an enactment authorising the compulsory acquisition thereof, being a contract made or notice served before the damage occurred, that payment or that part thereof shall, unless the contract is rescinded or the notice ceases to have effect, be held by that person upon trust for the purchaser :
Provided that any lien upon that interest to which that person is entitled by virtue of the contract shall extend to that payment or that part thereof.
10
In the application of this Schedule to Scotland—
(a)
paragraph 7 shall not apply, but where the interest in the property in question of the person to whom the whole or part of a payment under subsection (4) of section one of this Act falls to be paid is subject to a trust within the meaning of the Trusts (Scotland) Act, 1921, or to an entail or to a life-rent, that person shall hold and apply that payment or that part thereof in like manner as if the interest had been acquired under compulsory powers and the payment or that part thereof were the purchase money or compensation for that interest;
(b)
the following expressions have the following meanings respectively, that is to say—
" fee simple " means, in the case of feudal property, the estate or interest of the proprietor of the dominium utile, or, in the case of property other than feudal property, the estate or interest of the owner ;
" incumbrance " means any ground annual or other incumbrance or any liability to pay feuduty ;
" easement " means servitude ;
" mortgage " means—
- (i)
a heritable security within the meaning of the Conveyancing (Scotland) Act, 1924, exclusive of a security by way of ground annual and a real burden ad factum praestandum but inclusive of a security constituted by ex facie absolute disposition ; or
- (ii)
an assignation in security of a lease recorded under the Registration of Leases (Scotland) Act, 1857 ;
and " mortgagee " shall be construed accordingly ;
" rentcharge " means a feuduty or a ground annual.
Short Title | Session and Chapter |
|---|---|
Lands Valuation (Scotland) Act, 1854 | |
Registration of Leases (Scotland) Act, 1857 | |
Tramways Act, 1870 | |
Ancient Monuments Protection Act, 1882 | |
Crofters Holdings (Scotland) Act, 1886 | |
Sheriff Courts (Scotland) Act, 1907 | |
Small Landholders (Scotland) Act, 1911 | |
Ancient Monuments Consolidation and Amendment Act, 1913 | |
Trusts (Scotland) Act, 1921 | |
Conveyancing (Scotland) Act, 1924 | |
Settled Land Act, 1925 | |
Law of Property Act, 1925 | |
Universities and College Estates Act, 1925 | |
Landlord and Tenant Act, 1927 | |
Rating and Valuation (Apportionment) Act, 1928 | |
Doncaster Area Drainage Act, 1929 | |
Land Drainage Act, 1930 | |
County Courts Act, 1934 . | |
Housing Act, 1936 | |
War Damage Act, 1943 | |
Agriculture Act, 1947 | |
Agriculture (Scotland) Act, 1948 | |
Agricultural Holdings Act, 1948 | |
Agricultural Holdings/Scotland) Act, 1949 | |
Coal-Mining (Subsidence) Act, 1950 | |
Housing (Scotland) Act, 1950 | |
Local Government (Miscellaneous Provisions) Act, 1953 | |
Mines and Quarries Act, 1954 | |
Crofters (Scotland) Act, 1955 | |
Slum Clearance (Compensation) Act, 1956 |