The First-tier Tribunal for Scotland (Transfer of Functions of the Homeowner Housing Committees) Regulations 2016

Regulation 4

SCHEDULE 1 Transitional and savings provisions

Applications to and proceedings in progress before the hohcs on 1st December 2016 to transfer to the First-tier Tribunal

1.  Any applications referred to the hohcs before 1st December 2016 but not yet determined and any proceedings already in progress before that date involving hohcs shall be transferred to and be completed by the First-tier Tribunal but with so far as possible the same persons hearing and determining the case before the First-tier Tribunal as members of that tribunal as were prior to 1st December 2016 hearing the case as members of the hohcs.

Decisions, directions and orders of the hohcs to continue in force

2.  Any decision (whether or not called a decision), direction or order given or made in applications to and proceedings before the hohcs which is in force immediately before 1st December 2016 remains in force on and after that date as if it were a decision, direction or order of the First-tier Tribunal.

Time limits in respect of applications to and proceedings before the hohcs to carry over to the First-tier Tribunal

3.  Any time limit which has started to run before 1st December 2016 in respect of applications to and proceedings before the hohcs (and which has not expired) shall continue to apply where applications and proceedings are transferred to the First-tier Tribunal.

Unexercised right of appeal to sheriff, if exercised, to be appeal to the Upper Tribunal

4.  Where in respect of a decision of the hohcs before 1st December 2016, there lies a right of appeal to the sheriff, which has not been exercised before that date but is still exercisable, any appeal on or after 1st December 2016 shall be to the Upper Tribunal for Scotland as if the decision had been made by the First-tier Tribunal and the appeal shall be an appeal from the First-tier Tribunal for the purposes of section 46(1) of the 2014 Act.

Savings provision

5.  Where in respect of a decision of the hohcs before 1st December 2016, there lies a right of appeal to the sheriff which has been exercised before that date, the appeal to the sheriff is not affected by these Regulations or the First-tier Tribunal for Scotland (Transfer of Functions of the Homeowner Housing Panel) Regulations 2016(1).

Regulation 5

SCHEDULE 2 Consequential amendments of the Property Factors (Scotland) Act 2011

1.  The Property Factors (Scotland) Act 2011 is amended in accordance with paragraphs 2 to 13.

2.  In section 4 (registration)—

(a) in subsection (4)(b)(iv), for “a homeowner housing committee” substitute “the First-tier Tribunal”; and

(b) after subsection (8) insert—

“(9) In this Act, “First-tier Tribunal” means the First-tier Tribunal for Scotland Housing and Property Chamber.”

3.  In section 5 (section 4: considerations), in subsection (3)(b), for “a homeowner housing committee” substitute “the First-tier Tribunal”.

4.  In section 8 (removal from register), in subsection (2)(c), for “a homeowner housing committee” substitute “the First-tier Tribunal”.

5.  In section 18 (referral to homeowner housing committee), in subsection (1)(a), for “a homeowner housing committee” substitute “the First-tier Tribunal”.

6.  The title to section 18 becomes “Referral to the First-tier Tribunal”.

7.  In section 19 (determination by homeowner housing committee)—

(a) in subsection (1), for the words from “homeowner” to “must” substitute “First-tier Tribunal must, in relation to a homeowner’s application referred to it under section 18(1)(a),”;

(b) in subsection (2)—

(i) in the opening words—

(aa) for “committee” substitute “First-tier Tribunal”;

(bb) for “they” substitute “it”; and

(ii) in paragraph (b), for “them” substitute “it”;

(c) in subsection (3)—

(i) for “committee are” substitute “First-tier Tribunal is”; and

(ii) for “committee” where it subsequently occurs substitute “First-tier Tribunal”;

(d) in subsection (4), for “homeowner housing committee” substitute “First-tier Tribunal”.

8.  The title to section 19 becomes “Determination by the First-tier Tribunal”.

9.  In section 20 (property factor enforcement orders)—

(a) in subsection (1)(a), for “homeowner housing committee” substitute “First-tier Tribunal”; and

(b) in subsection (1)(b), for “committee” substitute “First-tier Tribunal”.

10.  In section 21 (variation and revocation of property factor enforcement orders)—

(a) in subsection (1)—

(i) in the opening words, for the words from “The” to “order” substitute “Where the First-tier Tribunal has made a property factor enforcement order it”;

(ii) in paragraph (a), for “they consider” substitute “it considers”;

(iii) in paragraph (b), for “they consider” substitute “it considers”;

(b) in subsection (2)—

(i) in the opening words, for “committee” substitute “First-tier Tribunal”;

(ii) in paragraph (b), for “they think” substitute “it thinks”;

(c) in subsection (3)—

(i) in paragraph (a), for “committee consider” substitute “First-tier Tribunal considers”; and

(ii) in paragraph (b)—

(aa) for “committee” in both places that it occurs substitute “First-tier Tribunal”;

(bb) for “consider” in both places that it occurs substitute “considers”; and

(cc) for “have” substitute “has”.

11.  In section 23 (effect of failure to comply with property factor enforcement order)—

(a) in subsection (1)—

(i) for “homeowner housing committee” substitute “First-tier Tribunal”; and

(ii) for “committee” where it subsequently occurs substitute “First-tier Tribunal”;

(b) in subsection (2)—

(i) for “committee” in both places that it occurs substitute “First-tier Tribunal”; and

(ii) for “decide” substitute “decides”;

(c) in subsection (3)—

(i) in the opening words, for “committee” substitute “First-tier Tribunal”; and

(ii) in paragraph (b), for “committee are” substitute “First-tier Tribunal is”;

(d) in subsection (4)—

(i) for “committee are” substitute “First-tier Tribunal is”;

(ii) for “committee” where it subsequently occurs substitute “First-tier Tribunal”; and

(iii) for “they consider” substitute “it considers”.

12.  In section 24 (property factor enforcement order: offences), in subsection (4) for “homeowner housing committee” substitute “First-tier Tribunal” and for “have” substitute “has”.

13.  In section 31 (interpretation), after the definition of “applicant” insert—

““First-tier Tribunal” has the meaning given by section 4(9),”.

Regulation 6

SCHEDULE 3 Consequential amendments to the Property Factors (Scotland) Act 2011 Code of Conduct of Property Factors

1.  The Property Factors (Scotland) Act 2011 Code of Conduct of Property Factors, prepared under section 14(1) of the Property Factors (Scotland) Act 2011, laid before the Scottish Parliament on 30th April 2012 and brought into force on 1st October 2012 by the Property Factors (Code of Conduct) (Scotland) Order 2012(2), is amended as follows:

(a) in the Introduction—

(i) remove “and any homeowner housing committee”; and

(ii) for “a homeowner housing committee” substitute “the First-tier Tribunal Housing and Property Chamber”; and

(b) in section 4.2—

(i) remove “and referred to a homeowner housing committee”; and

(ii) for “committee” where it subsequently occurs substitute “tribunal”.

(1)

S.S.I. 2016/336.

(2)

S.S.I. 2012/217.