Property Factors (Scotland) Act 2011: Code of conduct for Property Factors

INTRODUCTION

This Code of Conduct ("the Code") sets out minimum standards of practice for registered property factors and has been prepared in terms of section 14 of the Property Factors (Scotland) Act 2011 ("the Act"). Registered property factors (as defined in section 2 of the Act) are legally required to ensure compliance with the Code in terms of section 14(5) of the Act.

This Code is one of three main elements to the Act. The other two elements are:

• A register of all property factors operating in Scotland (a property factor operating in Scotland without registration is committing a criminal offence in terms of section 12 of the Act);
• A dispute resolution mechanism - the homeowner housing panel.

Who does this Code apply to?

This Code applies to all registered "property factors" as defined by section 2 of the Act.

Broadly, "property factors" means property and land managers operating in Scotland, whether they are private businesses, local authorities or housing associations (see the annex to the Code for the definition of "property factor" which is contained in section 2 of the Act). Local authorities and housing associations will wish to take careful note of section 2(1)(b) in particular, as the provision of the service of managing the common parts of land used to any extent for residential purposes, to homeowners [1] free of charge does not in itself exempt those organisations from having to comply with the provisions of the Act.

What happens if a property factor does not comply with the Code?

Section 16 of the Act establishes a dispute resolution system. A homeowner may apply to the homeowner housing panel for a determination if the homeowner believes that his or her property factor has failed to comply with the Code, or otherwise failed to carry out their duties (section 17(5) of the Act gives a definition of "property factor's duties". See Annex A).

In applying the standards in this Code, the homeowner housing panel and any homeowner housing committee may take into account the title deeds and/or any agreement relating to the land which is managed or maintained by the property factor. A homeowner housing committee may make a "property factor enforcement order", requiring the property factor to take such action or to make such payment to the homeowner as is considered necessary. Failure to comply with such an order without reasonable excuse is a criminal offence in terms of section 24 of the Act.

In addition, the Scottish Ministers can take into account any failure to comply with the Code or with any property factor enforcement order when deciding whether to enter a person on the register of property factors, or to remove a registered property factor from it (see sections 4 and 8 of the Act). A property factor that has been removed from the register or whose application for registration is refused will be committing a criminal offence if they operate as a property factor without registration (section 12(1) and (3)).

How do the requirements of professional bodies and other legislation relate to the Code?

Property factors are responsible for ensuring that they conduct their business in a manner that complies with all relevant legislation in addition to the Act and the Code. In particular this covers duties imposed by legislation relating to consumer protection, financial services, consumer credit licences, title conditions, health and safety, data protection and equalities.

Some property factors will also have specific commitments to meet the regulatory requirements of statutory bodies (such as the Scottish Housing Regulator or the Financial Services Authority), or comply with the rules and codes of practice of professional or trade bodies (such as the Royal Institution of Chartered Surveyors or the Property Managers Association Scotland).

The Code is separate from, and additional to, these other statutory and voluntary requirements.