Part 2Dispute resolution

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Application and referral

17F3Application to the First-tier Tribunal

(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.

18F5Referral to the First-tier Tribunal

(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.

F1318A.Delegation of Chamber President’s powers

(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.

Property factor enforcement orders

19F14Determination by the First-tier Tribunal

(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.

20Property factor enforcement orders

(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.

21Variation and revocation of property factor enforcement orders

(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.

Appeals

F3322Appeals

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Effect of failure to comply with property factor enforcement order

23Effect of failure to comply with property factor enforcement order

(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.

24Property factor enforcement order: offences

(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.

General

F4425Power to make further provision about applications etc.

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

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F4627Annual report

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