Property Factors (Scotland) Act 2011: property factors - code of conduct

Abusive or intimidating

For a property factor (or a third party acting on their behalf) to communicate to a homeowner in a manner where it is reasonable for the homeowner to form a view that this manner is offensive or insulting and/or for a property factor or a third party acting on their behalf to cause the homeowner fear and alarm including threats of physical and/or non-physical violence against the homeowner.

Authority to Act

A statement that makes clear the basis on which a property factor is acting on behalf of homeowners including any legal basis where applicable.

‘Cooling off’ period

A set period of time after an arrangement is agreed between homeowners and a property factor during which the homeowners can terminate the contract without incurring any penalty notice that may apply.

Collateral warranty

An agreement associated with a primary contract (often concerning building work) which provides for a duty of care to be extended by one of the contracting parties to a third party not party to the original contract.

Commercially sensitive

Information which if disclosed may prejudice the commercial interests of the property factor or any other person, who may be an individual, a company, a public authority or any other legal entity.

Complaint

An expression of dissatisfaction (either orally or in writing) from a homeowner or homeowners in relation to the standards of service provided by their property factor. Whilst complaints can be submitted orally, the Property Factors (Scotland) Act 2011 provides that an application to the First-tier Tribunal cannot be made unless:

a)     the homeowner has notified the property factor in writing as to why the homeowner considers that the property factor has failed to carry out the property factor's duties or, as the case may be, to comply with the section 14 duty, and;

(b)   the property factor has refused to resolve, or unreasonably delayed in attempting to resolve, the homeowner's concern.

Core Service

Factoring services under agreed fee arrangements which do not incur additional ad hoc fees and charges.

Custom and practice

A course of action between a property factor and homeowners which has historically been undertaken in a particular way and is considered by both parties as the norm in the absence of any formal contract or arrangement between a property factor and homeowners.

Delegated authority

Authority granted by homeowners to a property factor to make decisions on their behalf always up to an agreed threshold without the property factor seeking further agreement from the homeowners.

Emergency repair

Where urgent work is required to prevent damage, or in the interests of health and safety, and where there is not time for the property factor to use the normal channels of consultation and decision-making with homeowners.

Enquiries

A request (either orally or in writing) asking for information where the request does not include an expression of dissatisfaction (see “complaint”).

Floating funds (“The Float”)

The collective term for advance payments made by homeowners kept in a maintenance account by a property factor to deal with routine or minor repairs.

Financial Conduct Authority

The conduct regulator for financial services firms and financial markets in the UK.

First-tier Tribunal for Scotland Housing and Property Chamber

It is an independent judicial body that determines tenancy related housing disputes within the private rented sector and matters relating to property factor compliance with the 2011 Act.

The First-tier Tribunal for Scotland (Housing and Property Chamber) performs the functions which used to be carried out by the Private Rented Housing Panel (“prhp”) and the Homeowner Housing Panel (“hohp”).

Homeowner

As defined in section 10(5) of the Property Factors (Scotland) Act 2011.

This may also include owners of commercial premises where these are on land used to any extent for residential purposes, the common parts of which are managed by a property factor.

Housing Association

As defined in section 1 of the Housing Associations Act 1985

In writing

Where the Code requires a property factor or homeowner to communicate in writing’ or ‘provide in writing’ or ‘make available in writing’ any document, this can include a ‘digital format or electronic format.  This would include, for example, providing an accessible reference (a link) to a document that is held online or on a website; access credentials to a customer portal or providing the documents electronically e.g. a word document or spreadsheet attached to an email rather than in writing as hard copy.  Where a factor has a website it is acceptable for the factor to provide information on the website to say how the document can be requested rather than making it available on the website itself.

Land

Can mean both land and any buildings and other structures on that land.

Letting agency work

As defined in section 61 of the Housing (Scotland) Act 2014.

Local Authority

As defined in section 2 of the Local Government etc. (Scotland) Act 1994

Owners’ Association

As defined in Section 2 of the 2011 Act

Professional indemnity insurance

A form of liability insurance which protects a property factor from bearing the full cost of defending a negligence claim by homeowners.

Property factor

As defined in section 2 of the Property Factors (Scotland) Act 2011.

Property factor duties

As defined in section 17(5) of the Property Factors (Scotland) Act 2011.

Property factor enforcement order

As defined in section 20 of the Property Factors (Scotland) Act 2011.

An order requiring a property factor to undertake such action as a First-tier Tribunal considers necessary, and, where appropriate, make payment to a homeowner, as the First-tier Tribunal considers reasonable.

Property factor registered number

A number allocated to a property factor upon registration by Scottish Ministers in accordance with section 13(1) and 13(2) of the Property Factors (Scotland) Act 2011.  A property factor must take all reasonable steps to ensure that this number is included in any document sent to a homeowner.

Property Factors (Scotland) Act 2011 (2011 Act).

An Act of the Scottish Parliament which makes provision for

1. a register of property factors operating in Scotland;
2. a dispute resolution mechanism through the First-tier Tribunal for Scotland (Housing and Property Chamber) to resolve disputes between homeowners and property factors; and
3. the Code of Conduct for Property Factors.

Prudential Regulation Authority

Responsible for the prudential regulation and supervision of insurers.

Public liability insurance

A form of liability insurance which compensates a person if they experience personal injury or damage to their property.

Out-of-hours

The time period which is out-with any standard working hours as set out in a written statement of services provided to a homeowner.

Reasonable

A course of action, consideration or decision which is fair, sensible and appropriate.

Register of property factors (the Register)

The public register prepared and maintained by the Scottish Ministers (or other delegated authority) under section 1 of 2011 Act.

Registered

The property factor is currently entered on the Register with a property factor registered number allocated by Scottish Ministers.

Scottish Ministers

As defined in section 44(2) of the Scotland Act 1998.

Scottish Housing Regulator

Regulates the interests of people who use the services of a social landlord such as a local authority or a housing association.

Self Factoring

Where homeowners have decided to organise their own building management, repair and maintenance. 

Sinking or reserve funds

A fund used to gather monies from homeowners to pay for major repairs. The arrangements are normally written into the title deeds to the property.

Substantial change to the Written Statement of Services (WSS)

Any change to the WSS which is necessary as a result of substantial, amended or additional factoring arrangements, changes to the property factor code of conduct or other relevant legislative requirements (including the finding of a First-tier Tribunal or Upper Tribunal).

Tenement Management Scheme

The tenement management scheme under the Tenements (Scotland) Act 2004 sets out procedures flat owners may need to follow when making 'scheme decisions' about maintaining and repairing common parts, depending on the title deeds.

Tenements (Scotland) Act 2004

(2004 Act)

An Act of the Scottish Parliament which makes provision about the boundaries and pertinents of properties comprised in tenements (as broadly defined in the 2004 Act) and for the regulation of the rights and duties of the owners of properties comprised in tenements.

The Code

The property factor code of conduct as defined in section 14 of the Property Factors (Scotland) Act 2011.

Title Conditions (Scotland) Act 2003

An Act of the Scottish Parliament which makes further provision about real burdens, servitudes and certain other obligations affecting land; to amend the law relating to the ranking of standard securities; and for connected purposes

Title deeds

Title deeds are proof of ownership of land and buildings and contain various rules that apply to the building. 

Unreasonable or excessive

A course of action, consideration or decision where it is reasonable to take the view that the action, consideration or decision is unfair, disproportionate or generally deemed to be beyond what is considered as typical or normal.

Unregistered

Not entered on the Register.

Upper Tribunal for Scotland

The Upper Tribunal hears appeals on decisions of the Chambers of the First-tier Tribunal

Written statement of services (WSS)

A document which sets out the service delivery standards of the business arrangement in place between a property factor and a homeowner, as set out at Section 1 of the Code of Conduct.