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Property Factors (Scotland) Act 2011

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Part 2SDispute resolution

F1...S

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Amendments (Textual)

F216

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Amendments (Textual)

Application and referralS

17[F3Application to the First-tier Tribunal]S

(1)A homeowner may apply to the [F4First-tier Tribunal] for determination of whether a property factor has failed—

(a)to carry out the property factor's duties,

(b)to ensure compliance with the property factor code of conduct as required by section 14(5) (the “section 14 duty”).

(2)An application under subsection (1) must set out the homeowner's reasons for considering 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.

(3)No such application may 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.

(4)References in this Act to a failure to carry out a property factor's duties include references to a failure to carry them out to a reasonable standard.

(5)In this Act, “property factor's duties” means, in relation to a homeowner—

(a)duties in relation to the management of the common parts of land owned by the homeowner, or

(b)duties in relation to the management or maintenance of land—

(i)adjoining or neighbouring residential property owned by the homeowner, and

(ii)available for use by the homeowner.

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Amendments (Textual)

Commencement Information

I1S. 17 in force at 1.10.2012, see s. 33(2)

18 [F5Referral to the First-tier Tribunal] S

(1)The [F6Chamber President] must decide whether to––

(a)refer an application under section 17(1) to [F7the First-tier Tribunal] , or

(b)reject the application.

(2)The [F8Chamber President] may reject an application only if the [F8Chamber President] considers––

(a)that it is vexatious or frivolous,

(b)that the homeowner has not afforded the property factor a reasonable opportunity to resolve the dispute,

(c)where the homeowner has previously made an identical or substantially similar application in relation to the same property, that a reasonable period of time has not elapsed between the applications, or

(d)that the dispute to which the application relates has been resolved.

(3)The [F9Chamber President] must make a decision under subsection (1)––

(a)within 14 days of the [F10First-tier Tribunal’s] receipt of the application concerned, or

(b)where the [F9Chamber President] considers––

(i)that the decision cannot be made without further information, or

(ii)that there is a reasonable prospect of the dispute being resolved by the parties,

by such later date as the [F9Chamber President] considers reasonable.

(4)The [F11Chamber President] must, as soon as practicable after rejecting an application, give notice of the rejection––

(a)to the homeowner, and

(b)where the [F11Chamber President] is aware of the name and address of a person who acts for the homeowner in relation to the application, to that person.

(5)Such a notice must––

(a)set out the reasons for the rejection, and

(b)explain the procedure for appealing against it.

[F12(6)In this Act, “Chamber President” means Chamber President of the First-tier Tribunal for Scotland Housing and Property Chamber.]

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Amendments (Textual)

Commencement Information

I2S. 18 in force at 1.10.2012, see s. 33(2)

[F1318A.Delegation of Chamber President’s powersS

(1)The Chamber President may delegate the Chamber President’s functions under section 18 to any legal or ordinary member of the First-tier Tribunal.

(2)A delegation under this section does not affect the Chamber President’s—

(a)responsibility for the carrying out of delegated functions, or

(b)ability to carry out delegated functions.]

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Amendments (Textual)

Property factor enforcement ordersS

19 [F14Determination by the First-tier Tribunal] S

(1)The [F15First-tier Tribunal must, in relation to a homeowner’s application referred to it under section 18(1)(a),] decide—

(a)whether 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)if so, whether to make a property factor enforcement order.

(2)In any case where the [F16First-tier Tribunal] proposes to make a property factor enforcement order, [F17it] must before doing so––

(a)give notice of the proposal to the property factor, and

(b)allow the parties an opportunity to make representations to [F18it] .

(3)If the [F19First-tier Tribunal is] satisfied, after taking account of any representations made under subsection (2)(b), 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, the [F20First-tier Tribunal] must make a property factor enforcement order.

(4)Subject to section 22, no matter adjudicated on by the [F21First-tier Tribunal] may be adjudicated on by another court or tribunal.

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Amendments (Textual)

Commencement Information

I3S. 19 in force at 1.10.2012, see s. 33(2)

20Property factor enforcement ordersS

(1)A property factor enforcement order is an order requiring the property factor to––

(a)execute such action as the [F22First-tier Tribunal] considers necessary,

(b)where appropriate, make such payment to the homeowner as the [F23First-tier Tribunal] considers reasonable.

(2)A property factor enforcement order must specify the period within which any action required must be executed or any payment required must be made.

(3)A property factor enforcement order may specify particular steps which the property factor must take.

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Amendments (Textual)

Commencement Information

I4S. 20 in force at 1.10.2012, see s. 33(2)

21Variation and revocation of property factor enforcement ordersS

(1)[F24Where the First-tier Tribunal has made a property factor enforcement order it] may, at any time––

(a)vary the order in such manner as [F25it considers] reasonable, or

(b)where [F26it considers] that the action required by the order is no longer necessary, revoke it.

(2)Where subsection (3) applies, the [F27First-tier Tribunal] must vary the property factor enforcement order––

(a)so as to extend, or further extend, the period within which any action required by the order must be executed, and

(b)in such other manner as [F28it thinks] fit.

(3)This subsection applies where––

(a)the [F29First-tier Tribunal considers] , on the submission of the property factor or otherwise, that any action required by a property factor enforcement order has not been, or will not be, executed during the period within which the order requires the work to be executed, and

(b)the [F30First-tier Tribunal] ––

(i)[F31considers] that satisfactory progress has been made in executing the action required, or

(ii)[F32has] received a written undertaking from the property factor stating that the action required will be executed by a later date which the [F30First-tier Tribunal] [F31considers] satisfactory.

(4)References in this Act to a property factor enforcement order or to action required by such an order are, where the order has been varied under this section, to be treated as references to the order as so varied or, as the case may be, to action required by the order as so varied.

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Amendments (Textual)

Commencement Information

I5S. 21 in force at 1.10.2012, see s. 33(2)

AppealsS

F3322AppealsS

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Amendments (Textual)

Effect of failure to comply with property factor enforcement orderS

23Effect of failure to comply with property factor enforcement orderS

(1)It is for the [F34First-tier Tribunal] to decide whether a property factor has failed to comply with a property factor enforcement order made by the [F35First-tier Tribunal] .

(2)Where the [F36First-tier Tribunal] [F37decides] that a property factor has failed to comply with the property factor enforcement order, the [F36First-tier Tribunal] must serve notice of the failure on the Scottish Ministers.

(3)The [F38First-tier Tribunal] may not decide that a property factor has failed to comply with a property factor enforcement order––

(a)unless the period within which the order requires any work to be executed has ended, or

(b)if the [F39First-tier Tribunal is] satisfied, on the submission of the property factor or otherwise––

(i)that the property factor is unable to comply with the order because of a lack of necessary rights (of access or otherwise) despite having taken reasonable steps for the purposes of acquiring those rights, or

(ii)that any action required by the order is likely to endanger any person.

(4)Where the [F40First-tier Tribunal is] prevented by reason only of subsection (3)(b) from deciding that a property factor has failed to comply with a property factor enforcement order, the [F41First-tier Tribunal] must serve notice on the Scottish Ministers stating that [F42it considers] the property factor to be unable to comply with the property factor enforcement order.

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Amendments (Textual)

Commencement Information

I6S. 23 in force at 1.10.2012, see s. 33(2)

24Property factor enforcement order: offencesS

(1)A person who, without reasonable excuse, fails to comply with a property factor enforcement order commits an offence.

(2)For the purposes of subsection (1), a person has reasonable excuse for failing to comply with a property factor enforcement order if––

(a)the person is unable to comply with the order because of a lack of necessary rights (of access or otherwise) despite having taken reasonable steps for the purposes of acquiring those rights, or

(b)any action required by the order is likely to endanger any person.

(3)Subsection (2) does not affect the generality of the defence of reasonable excuse.

(4)A person cannot be guilty of an offence under subsection (1) unless the [F43First-tier Tribunal] which made the property factor enforcement order in question [F43has] decided under section 23(1) that the property factor has failed to comply with it (but such a decision does not establish a presumption that the person has committed an offence under subsection (1)).

(5)A person who is guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

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Amendments (Textual)

Commencement Information

I7S. 24 in force at 1.10.2012, see s. 33(2)

GeneralS

F4425Power to make further provision about applications etc.S

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Amendments (Textual)

F4526Recovery of costs from property factors in relation to certain applications and ordersS

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Amendments (Textual)

F4627Annual reportS

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Amendments (Textual)

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