THE THE HOME HOME OWNER OWNER HOUSING HOUSING PANEL PANEL Their role and recent case decisions Alison Brynes T C Young
Property Factors Act 2011 • Mandatory register of Property Factors • Creation of Home Owner Housing Panel as devolved Scottish Tribunal • Application can be made by homeowners who consider that their property factor has failed to carry out their factoring duties or failed to comply with the Property Factors' Code of Conduct.
Purpose of HoHP • Dispute resolution mechanism • Providing informal and flexible proceedings • Ensuring compliance of Factors to Act/Code of Conduct/Factors duties • Issuing Property Factors Enforcement orders • Advising registration authority where appropriate
Making an application to HoHP • Application form to be completed together with:- • evidence that the homeowner has notified the property factor of the complaint and that the property factor has refused to resolve the complaint or has unreasonably delayed resolving the complaint
Making an application to HoHP • copies of any correspondence which the homeowner has sent and received from the property factor regarding the complaint, including the factor’s response to notification of the complaint and • A copy of the Statement of Service No complaints arising prior to 1 st October 2012 will be heard
HoHP Application process • Application received by HoHP and notified to Factor for response • Decision made as to whether complaint has merit made by Panel President – either dismissed or referred to Committee • Oral hearing/written determination following correspondence if agreed by both parties • PFEO (Property Factors Enforcement order)
HoHP Application process • Committee hold compliance hearing – revoke PFEO/complied with PFEO • Revoke PFEO/Refer to Scottish Ministers Registration Authority
Who will sit on the Committee? • least two members: – a legal member who acts as chairperson and who is a solicitor or an advocate; – at least one other member who may be a surveyor member, who is a chartered surveyor; or a housing member, who has experience of, or practical involvement in housing and land related issues
Is the hearing public or private? • Public, but committee may exclude members of the public from a hearing either on their own initiative or on the application of any party where the Committee decide that a public hearing would adversely affect the fairness of the proceedings
Why would an application be rejected? • If it is frivolous or vexatious • The factor has not been given the opportunity to resolve the dispute • The homeowner has made a recent identical or similar application in relation to the same property • The dispute has been resolved
What will a committee consider? • Has there been a failure to carry out the factors duties or • Failure to comply with the Code of Conduct If so, make a PFEO….
What is a PFEO? An order requiring the factor to:- – take such action as the committee deem necessary – where appropriate make a payment to the homeowner as deemed necessary by the committee Order :- – will specify period in which action must be taken – may specify particular steps to be taken
Making an appeal against HoHP decision • Appeal on point of law can be made by summary application opt the sheriff • Any such appeal must be made within 21 days of decision • The decision of the sheriff is final
Failure to comply with PFEO • Committee will decide if factor has failed to comply with PFEO • If committee decide that there has been a failure they are obliged to report to Scottish Minister • Deemed in Act to be an offence and fined to level 3 of the standard scale (£1000)
Recent Decisions and what we can learn…. • A Sethi/ Grant & Wilson – Authority for common repair sought but not obtained. Factor had fulfilled role – Anything subject to a live complaints procedure which has not been exhausted cannot be heard .
Recent Decisions and what we can learn…. • Mr & Mrs Smith/ Hacking & Paterson – Repair carried out prior to Act coming into force cannot be dealt with by HoHP – Lack of communication, and adhering to communication’s policy in written Statement led to failure – Failure to ensure work was carried out to appropriate standard as set out in written statement
Recent Decisions and what we can learn…. • Mr McKim/ Charles White Limited -identifies lack of communication, requirement to inform homeowner of progress of repair including estimated timescales for completion. - delay in dealing with complaint
Recent Decisions and what we can learn…. • Bryden / Newton Property Management – Confused instructions from homeowner contributed to delay – Homeowner cannot select parts of a factor’s service to receive and then complain about delays
Recent Decisions and what we can learn…. • Mr McIntosh/Collinswell Land Management – Failure to provide written statement timeously – Providing misleading information – Unacceptable, abusive communication – Factor entitled to advise that they will take legal action for recovery of debt, this is not threatening in itself.
Recent Decisions and what we can learn…. • Mrs Shepherd / GHA – No obligation to provide breakdown of management fee Dr Prashad/Redpath Bruce Property Management Ltd - Lack or/fragmented information re insurance - No effort to meet with applicant to discuss issues
Recent Decisions and what we can learn…. • Mr Park/ Hacking and Paterson - a factor cannot ‘dip in and out’ of the provisions of a deed of conditions as he sees fit. - Unable to provide evidence of appointment, should be kept for future reference. - not possible to create customs and practise binding on other parties who had no knowledge of the actings
Continued…. • Interesting observations in this case re styles of written statement re lack of bespoke information and that a ‘one size fits all’ approach is not acceptable. • Factor should reconsider this approach • Cannot use blanket ‘custom and practise’ approach when this is clearly not the case. • No definition as to what ‘custom and practise’ is
Continued…. • Difficult to prove contractual terms by virtue of custom and practise including dealing with new owners or an unusual repair. • Custom and practise ‘not ideal’ • A factor cannot simply decide to increase factor’s float without consultation.
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