A revised Code of Conduct for Property Factors has been produced by the Scottish Government, and will take effect from 16 August 2021 (“the 2021 Code”). This link takes you to the online version of the new Code on the Scottish Government website:
Property Factors (Scotland) Act 2011: Code of Conduct for Property Factors - gov.scot (www.gov.scot)
The Code has been produced after a process of consultation and the analysis of responses is available at:
Draft revised Code of conduct for registered property factors: consultation analysis - gov.scot (www.gov.scot)
New provisions in the 2021 Code
The 2021 Code introduces new ‘Overarching Standards of Practice’ which must be followed by property factors. As well as the introduction of these standards, the existing sections 1-7 of the original 2012 Code (“the 2012 Code”) have been updated. These changes will apply to property factors when the 2021 Code comes into force on 16 August 2021. There are similarities in parts of the 2021 Code to the 2012 Code but there are also some differences.
Complaints arising from an alleged act or omission of a property factor which occurred before 16 August 2021
The 2021 Code is not retrospective, in other words it is not backdated to cover events before 16 August 2021. The 2012 Code still applies to events before 16 August 2021. Therefore, complaints arising from an alleged act or omission of the property factor before 16 August 2021 and:
1. which have been notified in writing by a homeowner to a property factor under the 2012 Code (even if that written notification to the property factor occurred after 16 August 2021); and
2. which have proceeded through the property factor’s complaints procedure applying the 2012 Code to the complaint and its response,
will proceed to a determination by the Tribunal operating the 2012 Code provisions.
Application Form C.1 needs to be completed for pre-16 August 2021 complaints. Attached to the application form should be the written notification of complaints sent to the property factor. The application form will require the homeowner applicant to specify if the alleged conduct complained of is a complaint or complaints relating to (1) a breach of property factor duties and /or (2) breach of the 2012 Code.
Alleged breaches of property factors’ duties do not refer to the 2012 Code or 2021 Code and are unaffected by the 2021 Code. Property factor duties complaints can include, as examples, allegations of breaches of the written Statement of Services (which is a service level agreement), or title deed conditions, or a factoring contract, or contraventions of the law of agency. If the application is made on the basis of breach of property factor duties, the homeowner will need to specify the document or provision which the homeowner considers contains the duty which the property factor has not met.
Template letters of notification have been prepared by the Tribunal to assist applicants. There is no requirement to use these templates and applicants may use their own versions provided they are sufficiently detailed to provide fair notice of the complaints to a property factor. The notification letter templates available are for (1) breach of duties complaints; (2) 2012 Code complaints; and (3) 2021 Code complaints. All templates and application forms are available on the HPC website. Care should be taken to select the correct template notification letter(s) which apply. For complaints arising from an alleged act or omission of a property factor which occurred before 16 August 2021, the 2021 Code does not apply to these complaints.
Complaints arising from an alleged act or omission of a property factor on or after 16 August 2021
If complaints arise as a result of an act or omission by the property factor on or after 16 August 2021, the 2021 Code will apply. An application can only progress to the Tribunal where written notification of the complaints has been made to the property factor and the property factor has been given an opportunity to resolve the complaints e.g. through their complaints procedure. A template letter of notification is available for that purpose and the template for 2021 Code complaints should be used with, as appropriate, any breach of property factor duties complaints.
Application Form C.2 needs to be completed for 2021 Code complaints. Attached to this form should be the written notification of complaints sent to the property factor either under breach of property factor duties (unaffected by the Code which applies) and/or under breach of the 2021 Code. The 2012 Code does not apply to these complaints.
This will mean that if the 2021 Code is being relied on, the complaints must not only have arisen as a result of acts or omissions of the property factor occurring after 16 August 2021 but the notification of the complaint to the property factor of the breaches of the 2021 Code must have been sent to the property factor after 16 August 2021, to allow the property factor to apply the new Code in their complaint handling procedure and response.
Complaints arising from an alleged act or omission of a property factor occurring both before and after 16 August 2021 (continuing complaints)
A homeowner can decide whether to apply to the Tribunal for determinations
a) for acts or omissions taking place before 16 August 2021 - using the 2012 Code (application form C.1), using written notification to the property factor referencing breaches in the 2012 Code, or
b) for acts or omissions taking place on or after 16 August 2021 - using the 2021 Code (application form C.2), using written notification to the property factor referencing breaches in the 2021 Code, or
c) for acts or omissions taking place both before and after 16 August 2021 - using both Codes (2012 Code and 2021 Code), (requires submission of two application forms C.1 and C.2) with two written notifications to the property factor, one referencing 2012 Code complaints, for issues occurring up to 16 August 2021, and the other referencing 2021 Code complaints, for issues occurring on or after 16 August 2021.
It is a matter for the homeowner if they wish to pursue two applications under both the 2012 and 2021 Codes about fundamentally the same matters. If a homeowner wishes to do so, the Tribunal would seek to have the two applications dealt with together before the same Tribunal and that may delay the progress of a case involving the 2012 Code, to allow the application referring to the 2021 Code to proceed to the necessary stages before it can be submitted to the Tribunal and determined. This will mean that both applications can be dealt with together.
Existing applications lodged with the Tribunal as at 16 August 2021
The Statutory Instrument which commences the 2021 Code includes a ‘saving provision’ which means that the 2012 Code still applies to existing property factor applications which have been made to the Housing and Property Chamber prior to 16 August 2021 until those applications are finally determined. There is therefore no requirement in such applications to make amendments referring to the 2021 Code and such amendment would not be possible since the 2021 Code would not apply to the property factor at the time the conduct which prompted the complaint took place.
Suggestions when Making an Application
The Application forms and template letters of notification referred to are on the website of the Housing and Property Chamber or can be requested in hard copy from the Chamber. The Tribunal accept electronic submission of applications. If attachments are provided with an application form and, some attachments are prescribed in legislation and mandatory as specified in a check list on the application forms, then the attachments should be numbered and provided with an index of documents. This makes referencing documents easier in the course of Tribunal proceedings and helps the Tribunal judges to better understand the homeowner’s case.
It is important that the correct application form is used as it has prompts for information specific to the particular Code. Homeowners should reflect on each complaint, if more than one, and consider when it first occurred. That information will be crucial to deciding which Code applies and which application form(s) to complete.
Importance of Notification of Complaints to a Property Factor
A number of applications to the Tribunal are delayed or not accepted because of the lack of written notification of complaints to a property factor in advance of making an application to the Tribunal or the lack of sufficiently detailed written notification of complaints to a property factor. The Tribunal cannot in law consider an application until the property factor has been made aware of the complaints in writing by the homeowner and has had a reasonable opportunity to resolve the complaints.
Each complaint detailed within the application form to the Tribunal should have been notified in advance and in writing to the property factor. If breaches of either Code are alleged, the specific part of the Code which it is alleged has been breached should be detailed, where possible, to allow fair notice of the complaint to the property factor. This also helps the homeowner to focus their complaints to relevant issues which the Tribunal can consider as Code complaints. The parts of the Code have been numbered to assist with this notification.
The homeowner is required by law to submit copies of the written notification of complaints (and copies of any responses received from the property factor) with the application form. The homeowner will be asked to submit evidence to the Tribunal of sending the notification of complaints to the property factor and it avoids delay if this is produced with the application.
Further information about the procedure, including past decisions of the Chamber, is available on the Chamber website.