Non compliance of a Property Factor Enforcement Order (PFEO): FOI release

Information requested

1. On how many occasions has the First Tier Tribunal referred property factors who have not complied with a PFEO to Scottish Ministers since the Property Factors Act 2011 was introduced?

2. On how many occasions have Scottish Ministers NOT taken further action against property factors referred to it for failure to comply with a PFEO since 2011?

3. On how many occasions have Scottish Ministers fined or imposed further sanctions on property factors since the Property Factors Act 2011?

4. What recourse do homeowners have if a property factor does not comply with an enforcement order imposed by the FTT?

Response

1. On how many occasions has the First Tier Tribunal referred property factors who have not complied with a PFEO to Scottish Ministers since the Property Factors Act 2011 was introduced?
The process for monitoring compliance of a Property Factor Enforcement Order (PFEO) is one for the First-tier Tribunal for Scotland (Housing and Property Chamber) (First-tier Tribunal). However, if the First-tier Tribunal decide that a property factor has not complied with a PFEO they will issue a notice to Scottish Ministers under Section 23(2) of the Property Factors (Scotland) Act 2011 (the 2011 Act). I can confirm that since the 2011 Act came into force, Scottish Ministers have received notices on 58 occasions.

2. On how many occasions have Scottish Ministers NOT taken further action against property factors referred to it for failure to comply with a PFEO since 2011?
We have taken action on all 58 occasions where the First-tier Tribunal have served notice on the Scottish Ministers of a property factor’s failure to comply with a PFEO. This action taken may include keeping the property factor on the register but continuing to monitor their compliance and encouraging them to comply with the code of conduct (the Code); removing the property factor from the register; or refusing the property factor from the register.

The Scottish Ministers have the power to remove a property factor from the register if they consider that the property factor is no longer a fit and proper person or where the property factor has failed to demonstrate compliance with either the property factor Code or any PFEO, or if the property factor has not included the property factor registered number in any document sent to a homeowner.

In considering whether to remove a property factor from the register, Scottish Ministers will look at the specific findings of the First-tier Tribunal, the seriousness of the breaches, whether the property factor has taken steps to address the failures and if the factor has been found to have significantly or repeatedly failed to comply. Until such point in reached, property factors are encouraged to comply with the regime.

3. On how many occasions have Scottish Ministers fined or imposed further sanctions on property factors since the Property Factors Act 2011?
The 2011 Act does not provide Scottish Ministers with powers to fine property factors. A homeowner can apply to have their case considered by the First-tier Tribunal for a determination where they believe that their factor has failed to comply with the Code, or otherwise failed to carry out their property factor duties. It is the First-tier Tribunal that has the power to issue a legally binding PFEO if it finds in the homeowner’s favour. As mentioned in the response to question 2, the Scottish Ministers also take steps to monitor and encourage compliance.

4. What recourse do homeowners have if a property factor does not comply with an enforcement order imposed by the FTT?
It is a criminal offence for a property factor to fail to comply with a PFEO and it is for the First-tier Tribunal to consider making a report to Police Scotland for prosecution in terms of section 24 of the 2011 Act. A homeowner can also report any criminality to Police Scotland and homeowners may also have recourse through the Sheriff Court. Whilst it will not result in compliance with a PFEO, homeowners may decide to dismiss their factor and appoint another as long as a "manager burden" is not in place. Further information can be found from the Under One Roof website at: https://underoneroof.scot/articles/1108/Owners_Associations/Property_Factors__Managers_

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