Public consultation on Property Factors (Scotland) Act 'Code of Conduct'

The Scottish Government has launched 12-week consultation on a proposed statutory Code of Conduct, to be made under the Property Factors (Scotland) Act 2011, which was passed by the Scottish Parliament earlier this year.

Property managers administer communal areas, roofs and stairwells in an estimated 225,000 flats and tenements across Scotland. Land maintenance companies look after the common green space on many new housing estates. The act, which comes into force no later than October 1, 2012, aims to provide protection for homeowners in Scotland who receive services from property factors.

Compulsory registration for all property factors and a tribunal based dispute resolution process for homeowners will be introduced.

Minister for Housing and Transport, Keith Brown said: "Property managers have an important role to play in maintaining and improving housing stock condition and open space. While the majority of property factors provide a good, effective service, the Scottish Parliament voiced concerns about how some property and land management services are delivered".

"The act will provide protection for homeowners in Scotland who receive services and the code of conduct is a central element of that act. “I would urge everyone with an interest in this important issue to respond to the consultation.”

During the consultation period the Scottish Government will hold a series of consultation workshops for property factors and for homeowners and members of the public. The act was introduced as a member’s bill drafted by GLC on behalf of Glasgow MSP, Patricia Ferguson. The Scottish Government supported the bill and worked with Ms Ferguson to make the legislation as effective as possible.

The consultation will run from Monday 26 September until Friday 16 December.

GLC supports Scottish pre-action legal requirement in eviction cases

GLC supports the Scottish Governent's proposal of a pre-action requirement (PAR) for eviction cases in the social rented sector; although the elephant in the room is why not extend this approach to private sector evictions too?

We believe this approach could significantly reduce the number of tenants evicted due to rent arrears in the social rented sector. A PAR has been suggested in a recent Scottish Government consulation paper. Such an approach would require all social landlords to deal with the problem of arrears effectively at an earlier stage. It would also help ensure that court action was only raised as a last resort.

GLC believes the Housing (Scotland) Act 2001 could be amended to ensure that compliance with a PAR prior to raising an eviction action was necessary in order to ensure that proceedings were competent in the same way that service of a valid notice of proceedings is required at present. Failure on a social landlord’s part to comply with the PAR would therefore be a defence to the action on competency grounds.

GLC believes it is important, from a public policy point of view that social tenants are afforded the same protection as homeowners. The introduction or a PAR would bring the protection of social rented tenants in line with the protection being introduced for homeowners in the Home Owner and Debtor Protection (Scotland) Act 2010.

However, GLC is concerned that the Scottish Government's approach could give rise to unintended consequences, unless appropriate safeguards were put in place.  For example, we are concerned that the PAR could be seen as evidence that it is reasonable to evict in terms of section 16 of the Housing (Scotland) Act 2001. GLC is concerned that social landlords could argue that as they have complied with the PAR, and that as their tenants still had arrears, it would be 'reasonable' to evict. We believe that it is important that full consideration is still given to the requirements of section 16.

Although we hope the introduction of a pre-action requirement will reduce the number of cases raised in court we think care must be taken to ensure that the result is not an automatic assumption that all the cases that end up in court must be ones where nothing can be done to assist the tenant and that eviction will be reasonable in these cases.

We also think it is important that landlords continue to work with the tenant to solve the problem of the arrears, even after court action is raised. Our experience is that once the case has been raised in court some landlords become focused on obtaining a decree and are not as willing to negotiate repayment arrangements with tenants. We are concerned that the pre-action requirement may be seen as landlords as all they are required to do to assist a tenant. Instead we believe it should be seen as a minimum level of assistance that must be given before an action can competently be raised. Landlords should still be encourage to engage with tenants and work towards preventing eviction even after court action has been raised.

GLC's full response, led by Lindsay Paterson, Solicitor, to the Scottish Government's consultation is available online here.

National regulator ‘with teeth’ needed to tackle Scotland’s dodgy landlords

Unscrupulous private landlords continue to operate with impunity and under the ‘radar’ of local authority registration schemes according to evidence from Govan and Govanhill Law Centres, submitted to the Scottish Government today, in response to its consultation paper on Scotland’s new Housing Bill.

Lindsay Paterson, solicitor at Govanhill Law Centre said:
“The very landlords who ought not to be landlords because they are not ‘fit and proper’ people continue to operate under the radar – they will never be refused registration or removed from the register as they will never apply to be registered. As things stand therefore, the private landlord registration scheme is not an effective way of ensuring those not fit to be landlords are stopped from renting out properties".

Govan Law Centre (GLC) has highlighted the major inconsistency of local authority resources deployed to private landlord registration schemes (PLRS) across Scotland.

GLC believes Scotland’s private rented sector needs a new national regulator with comparable resources as are available to the national regulator for social landlords in order to protect vulnerable tenants in the private rented sector. The current disjointed and under funded local schemes have failed to work.

GLC is calling for a new national regulatory agency with ‘teeth’, which should require all private landlords to undergo Disclosure Scotland checks in order to help establish whether they are ‘fit and proper’ persons to act as landlords. GLC is particularly concerned with the Scottish Government’s idea of giving private sector landlords the right to undertake ‘DIY evictions’ through a statutory abandonment process.

Mike Dailly, Principal Solicitor at GLC said:
“In our experience all too many private sector landlords routinely ignore the law, so to suggest they should be given the power to carry out a ‘DIY eviction’ in certain circumstances is extremely unwise. Govan Law Centre is concerned that such a power would be automatically abused with many vulnerable tenants and their families being summarily evicted at all hours of the day and night. The Scottish Government’s consultation paper has a lot of good ideas, but this is not one of them”

GLC’s full consultation response is available online here.

The Scottish Government's consultation paper is available online here.