Regulation of property factors in Scotland

The Local Government Committee of the Scottish Parliament has made a call for evidence on the Property Factors (Scotland) Bill (the Bill and accompanying documents were drafted with assistance from GLC's Parliamentary and Policy Unit); for further details please see here.  The Scottish Parliament's Information Centre (SPICe) has published a new research briefing on the Bill, which is available here (opens as a PDF).

The SPICe briefing includes experience from the Republic of Ireland, where the Property Services Regulatory Authority (PRSA) has recently been established on an administrative basis. Legislation, currently before the Oireachtas, is intended to establish the PRSA on a statutory basis and will apply to all Property Services Providers (PSPs). PSPs are defined to include all those involved in the purchase, sale and letting of any land or property as well as those involved in the provision of property management services.

Under the proposed legislation, the functions of the PRSA will include operating a licening system covering all providers of property services; setting and enforcing standards for the grant of licences and provision of services; establishing a system of investigation and adjudication of complaints; promoting increased consumer protection and public awareness; and establishing a compensation fund to compensate parties who lose money as a consequence of the dishonesty of a licensee

The PSRA will have power to sanction a licensee up to and including the revocation of a licence and may also impose fines of up to €250,000 where a PSP is found to have engaged in "improper conduct". The Authority may bring a prosecution against a PSP for failing to comply with his or her statutory obligations or against any person providing a property service without a licence which may result in either a large fine or imprisonment or both. Under the new regulatory regime all PSPs are required to contribute to the "Property Services Compensation Fund". Where a person suffers a loss due to the dishonesty of a PSP the Authority may award compensation from the "Fund".

@Orkney Street Seminars: a new series of legal events from GLC

GLC has launched an innovative continuing professional development (CPD) programme - entitled 'Govan Law Centre @Orkney Street Seminars' - with 18 events scheduled between October 2010 and January 2011.  The theme of the series is to provide a high quality strategic analysis of topical legal subjects, not readily available elsewhere, at an affordable price.

The series includes morning sessions on reclaiming bank charges following the Supreme Court's surprise decision last year; tackling property factor disputes; new lines of defence in mortgage repossession cases; as well as 'what you need to know' events designed for legal practitioners, and money advisors. 

Innovative forms of delivery include a series of 'twilight' sessions tailored to suit the specific needs of educational professionals, and 'bite-sized' late afternoon events designed to address the needs of social care and social welfare practitioners.  Events within the series will be of interest to solicitors, professional and volunteer advisors, school teachers, social workers and health care professionals, among others.

GLC's Principal Solicitor, Mike Dailly said:
"It's testimony to the first class legal team at GLC that most of our events will be led by our own award-winning solicitors and social care professionals.  Our relocation to the Orkney Street Enterprise Centre has given us purpose built in-house conference facilities, and the transport links to Central Govan and its Helen Street business corridor compare very favourably to other major UK cities.  This series of seminars represents the first stage in an ambitious and innovative legal educational programme".

The CPD seminar programme is available here (with links to the seminar booking page. Note: a limited number of ultra low cost seminar places may be made available under a GLC discretionary programme to be announced in due course).

Bank charges update from GLC

GLC has received lots of e-mails and messages from citizens across the UK asking for an update on our bank charges cases.  In Scotland, the banks have deployed the strategy of applying to the court to 'remit' cases from the small claims system to the ordinary court procedure on the grounds of complexity.  This can be a powerful tactic in practice.  The Royal Bank of Scotland used the remit rules to thwart a claim for negligence last year.  Once a case leaves the small claims procedure in Scotland the protection against court expenses flies off, and the claimant would be exposed to unlimited expenses in the event of failure.

In the case of Sharp v. Bank of Scotland, the defender applied to remit the case to the ordinary court procedure.  As our client is eligible for civil legal aid this was not a problem (legal aid is not available for small claims in Scotland, but it is for ordinary cause actions). However, we may oppose this in other cases where appropriate, and will disseminate this knowledge if successful.  Accordingly, the case of Sharp will proceed to an Options Hearing next month, and it is likely a 'debate' (a court hearing on all of the legal arguments) will take place shortly thereafter.  This is necessary because the banks defence to a s.140A Consumer Credit Act (CCA) claim is to argue that the banking contract was not a regulated credit agreement.  The banks are also arguing that claims cannot go back before 6 April 2007.

Accordingly, if we can persuade the court that these lines of defence are irrelevant and wrong in law, this would leave claims to be determined on the facts as regards the unfair relationship test and the level of unfairness and consumer detriment.  Of course, in many cases the level of unfairness is severe.  Because cases depend so much on their own facts under the CCA - whether in terms of the transitional arrangements or the unfair relationship test - there may be little point in cases being sisted or stayed. Each case is different, and under the CCA each case is looked at specifically between the parties, the contract between them and the consequences of the charges on that customer. 

GLC will post further updates, but we are unable to make too much detail public at this stage as cases are live, and we cannot prejudice the prospects of our clients.

Govan win at the Scottish Care Accolades in Aviemore

GLC's Prevention of Homelessness Partnership (POHP) - a partnership between Glasgow City Council's South West Community Health Care Partnership, Govan Money Matters Advice Centre and GLC - has been honoured at the 2010 Scottish Care Accolades Awards. This is the 'Oscars' for social care services in Scotland, and the awards are organised by the Scottish Social Services Council and the Scottish Government. The awards ceremony was held in Aviemore this afternoon (Friday 11 June 2010).

The POHP won in the category of 'Partnership working in adult care services'. Collecting the award on behalf of the partnership, POHP co-ordinator, GLC's Alistair Sharp was delighted that our innovative approach to preventing homelessness on a sustained and long term basis had been honoured by our peers in Scotland's social care and health professions. 

Alistair said: "The award is testimony to the hard work of all of the partners involved, and is fantastic recognition at a time when we hope to further develop our service by providing an even earlier system of intervention to prevent homelessness in the South West Glasgow".

A short documentary film of the work of the POHP can be seen here (opens in Real Player). This is a powerful 15 minute documentary of the work of Govan Law Centre and it's local partners in Glasgow's Southside with respect to their innovative work to prevent homelessness on a sustained and holistic basis.

GLC response to draft SSI on lay representation

GLC has expressed a  number of concerns about how the proposed bodies prescribed for the purposes of approving lay representatives in mortgage repossession cases are to be regulated.  We believe these concerns require to be addressed in order to provide the Scottish public with an equivalent level of consumer redress and protection as currently exists as against professional representatives. Our response, written by GLC's Jennifer Laughland, is available here.

Rogue landlords leaving new arrivals 'destitute'

The Evening Times reports that foreign workers are being lured to Glasgow with the promise of jobs and housing only to be left destitute, MSPs have been told.   Eastern Europeans are being charged hundreds of pounds by rogue agencies advertising in their countries, but end up unable to pay rent after they arrive.

The Scottish Parliament equal opportunities committee met in the City Chambers yesterday to discuss immigration and associated problems and heard some shocking examples of exploitation. Govanhill Law Centre told the committee it was dealing with more than 20 people from Czech Republic and Slovakia who became unable to support themselves.

The committee was told: “Local private landlords appear to have entered into informal arrangements with the agencies, allowing the agencies to act as ‘landlord’.

“When the workers are unable to pay their rent, the letting agent or owner of the property tend to harass and intimidate the workers. Several of the workers have been threatened with assault, they have had their gas and electricity cut off too.”

Regulation of property factors on the horizon after centuries of imbalance in Scotland

A Bill to require Property Factors to comply with a statutory code of conduct and be registered has been published by Patricia Ferguson MSP. The Property Factors (Scotland) Bill, which has attracted cross-party support, will make it an offence for a property factor to operate without being registered, and will introduce an accessible form of alternative dispute resolution.

The legislation will lead to the establishment of a code of conduct setting minimum standards of practice expected of registered property factors, and will afford greater protection for homeowners from rogue factors.

The publication of the Bill follows several years of campaigning by Mike Dailly, Principal Solicitor at the Govan Law Centre, who has worked alongside the Maryhill MSP pushing for legislation to clean-up property factoring in Scotland. 

Commenting on the publication of the Bill Patricia Ferguson MSP said: "This is a milestone in the campaign to regulate property factors, and to protect homeowners from the unscrupulous practices of those factors that have brought the whole industry into disrepute".

"It is two and half years since I launched a consultation on my proposal to require the registration of factors, which showed overwhelming support for legislation. Hopes were raised when the Office of Fair Trading carried out a study into Scottish Property Factors, but then dashed when they only recommended a voluntary scheme despite concluding that the system is not working well".

"There was disappointment when the Scottish Government refused to legislate, favouring an industry-led voluntary accreditation scheme similar to that which has already failed homeowners. But the campaign was boosted when my proposal received the support of 45 MSPs from across the political divide to allow a Bill to be introduced, and when the whole Parliament supported a motion welcoming the progress towards legislation".

"The publication of my Bill is yet further progress towards legislation that will ensure better accountability of property managers for their standards and the services that they provide and I hope that it will continue to receive the support of my colleagues in the Scottish Parliament."

GLC's Mike Dailly said: "Property factors must be the only industry in Scotland who are virtually unlicensed and unregulated. When one third of your customers are unhappy with the service you provide it's time for a statutory solution. The Scottish Government are consulting on a voluntary accreditation scheme, but we've had self-regulation for centuries and it hasn't worked. The people of Scotland need a solution with legal teeth, and the Bill provides that solution in a fair and measured way".

"By introducing a formal requirement on all factors to be registered in a national register of property factors, the Bill would ensure that minimum standards of practice were adhered to across Scotland. Individual homeowners would be able to rely on those minimum standards in their day to day dealings with their property factor, and in an extreme case a bad factor could be de-registered to prevent them causing ongoing consumer detriment".

"Where a property factor failed to meet their contractual duty, or failed to reasonably adhere to the minimum standards, a homeowner would be entitled to take their dispute to a new tribunal called the 'homeowner housing committee'. There would be no need for a lawyer, and no legal expenses to worry about. The Bill gives the homeowner housing committee the power to ensure compliance with the contract and minimum standards, and where appropriate, require the factor to made a compensatory award or refund to the homeowner".

Full details of the Bill are available on the Scottish Parliament's website here.

GLC's parliamentary unit assists with 2 new Bills

GLC's Parliamentary & Social Policy Unit has assisted with the policy work and drafting of two Bills introduced in the Scottish Parliament today. 

First, the Protection of Workers (Scotland) Bill (SP Bill 47), sponsored by Hugh Henry MSP, a Bill for an Act of the Scottish Parliament to make it an offence to assault certain persons in the course of or by reason of their employment; and for connected purposes.

Second, the Property Factors (Scotland) Bill (SP Bill 51), sponsored by Patricia Ferguson MSP, a Bill for an Act of the Scottish Parliament to establish a register of property factors and require property factors to be registered; to make provision in relation to the resolution of disputes between homeowners and property factors; and for connected purposes.

The Bills, together with accompanying documents (Explanatory Notes & Financial Memorandum, and Policy Memorandum) are available from the Scottish Parliament's website:

• Property Factors (Scotland) Bill
• Protection of Workers (Scotland) Bill