Revised code of conduct for registered property factors: consultation

Part Five: Impact of the property factors (Scotland) act 2011

44. Parts 1 – 4 of this consultation paper asked for views in connection with the current code of conduct for property factors and also the draft 'revised' Code being consulted upon.

45. In this final part of the consultation paper we ask for your views on the impact of the requirements of the wider Property Factors (Scotland) Act 2011 (the 2011 Act) ^[34] .

46. In addition to the code of conduct, other features of the Act include provisions for :

• setting out the meaning of 'property factor' 'homeowner' and 'property factor duties' for the purposes of the 2011 Act;
• the Scottish Ministers (or other delegated authority) to prepare and maintain a register of property factors ^[35] which must be available for inspection at all reasonable times and displays the business name and address of the property factor, the name and address of any relevant persons and any dwelling houses, flats or land which the person currently expects to act;
• a person who intends to become a property factor to apply to Scottish Ministers for registration and for that application to specify certain information including business name, address and legal status, names and address of any relevant person(s), any dwelling houses, flats or land which the person expects to act as a property factor ^[36] , and information to assist Scottish Ministers consideration on whether any relevant persons are 'fit and proper' to act as a property factor ^[37] ;
• for any responsible person and /or relevant person(s) to be considered 'fit and proper' by Scottish Ministers in accordance with the considerations under the 2011 Act ^[38] and for Scottish Ministers to decide whether to enter a person on the register or refuse entry;
• the Scottish Ministers to provide any notice of entry to the register, refusal to enter or removal from the register to responsible persons by recorded delivery postal service or by using sheriff officers;
• the Scottish Ministers to ensure that the register of property factors is available for public inspection at all reasonable times;
• a registered property factor to take all reasonable steps to ensure that their property factor registered number is included in any document sent to a homeowner ^[39] ;
• a registered property factor to provide information including informing Scottish Ministers, as soon as practicable, if there are any changes to the information previously supplied in their application and to ensure that the property addresses and land information searchable on the register is updated on an annual basis or as part of any further application to register in accordance with the 2011 Act ^[40] ;
• a property factor to apply for registration every three years and for an application to be submitted to Scottish Ministers on or before the date the current registration expires;
• the Scottish Ministers to remove the entry where no further application is made, and for no opportunity to appeal against that decision to be available to the property factor;
• a homeowner to apply to the Housing and Property Chamber of the First-tier Tribunal for Scotland (First-tier Tribunal) ^[41] in cases where they have notified their property factor in writing of their complaint as to why they consider that their property factor has failed to carry out is duties under the Act or, as the case may be, comply with the Code. The property factor must also have refused to resolve their complaint or unreasonably delayed in attempting to resolve the complaint;
• the Chamber President to decide whether refer an application to the First-tier Tribunal or to reject it after considering certain criteria in accordance with the 2011 Act ^[42] ;
• the First-tier Tribunal to determine whether a property factor has failed to carry out is duties under the Act or, as the case may be, comply with the Code ^[43] ;
• the First-tier Tribunal to make proposed property factor enforcement orders, ^[44] to make, vary or revoke property factor enforcement orders made against a property factor ^[45] and to determine compliance with such orders;
• for the First-tier Tribunal to serve notice on Scottish Ministers where a property factor has failed to comply with a property factor enforcement order ^[46] ;

• the Scottish Ministers to consider and decide whether to remove a property factor from the register in accordance with the 2011 Act;

• for a property factor to appeal any decision by Scottish Ministers to refuse an application to enter the register or to remove its entry from the register during the period of registration;

• for a property factor removed from the register to no longer recover costs, impose charges or lodge notices of potential liability following a relevant date specified by the 2011 Act;

• the Scottish Ministers to place a public notice in relevant newspapers informing of both the consideration of removal, and the actual removal of the property factor from the register and to inform any relevant local authorities of these notices ^[47] ;

• a criminal offence to be introduced in relation to operating as a property factor whilst unregistered (and without reasonable excuse) ^[48] . The offence, if guilty on summary conviction, carries a custodial sentence of up to six months and/or a fine up to level 5 on the standard scale;

• a criminal offence to be introduced where a person knowingly fails to specify information or knowingly provides false information as part of any application to register ^[49] . The offence, if guilty on summary conviction, carries a fine up to level 3 on the standard scale.

• a criminal offence to be introduced where a person, other than a registered property factor uses a number purporting to be a property factor registered number in any document or communication (and without reasonable excuse). The offence, if guilty on summary conviction, carries a fine up to level 3 on the standard scale;

• a criminal offence to be introduced where a property factor fails to inform Scottish Ministers, as soon as practicable, of changes to information displayed or searchable on the register ^[50] . The offence, if guilty on summary conviction, carries a fine up to level 3 on the standard scale;

• a criminal offence to be introduced where a property factor fails to comply with a property factor enforcement order issued by the First-tier Tribunal (without reasonable excuse) ^[51] . The offence, if guilty on summary conviction, carries a fine up to level 3 on the standard scale.

Consultation Question

Question 15: In addition to the Code, do you think the wider requirements of the Property Factors (Scotland) Act 2011 (2011 Act) has led to improvements in the regulation of property factors? Choose from the following options:

The 2011 Act has made significant improvements

The 2011 Act has made some or slight improvements

The 2011 Act has made no improvements

Or

Let us know if you are unsure?

Please explain your answer making reference to the relevant requirement(s) of the 2011 Act where applicable.