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A Consultation on a draft revised code of conduct for registered property factors

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Appendix 2 - Glossary of terms used in the Code

48. This glossary of terms in the table below forms part of the Code and is relevant to its interpretation.

Abusive or intimidating

For a property factor (or a third party acting on their behalf) to communicate to a homeowner in a manner where it is reasonable for the homeowner to form a view that this manner is offensive or insulting and/or for a property factor or a third party acting on their behalf to cause the homeowner fear and alarm including threats of physical and/or non-physical violence against the homeowner.

A homeowner can, if they choose to do so, report such matters to Police Scotland if they believe that their property factor (or a third party acting on its behalf) has acted in a manner which may be a criminal offence in Scots or the law in the rest of the UK.

Authority to Act

A statement on the basis of why a property factor is acting on behalf of homeowners including any legal basis where applicable.

Code

The property factor code of conduct as defined in section 14 of the Property Factors (Scotland) Act 2011.

'Cooling off' period

A set period of time after an arrangement is agreed between homeowners and a property factor during which the homeowners can terminate the contract without incurring any penalty notice that may apply.

Collateral warranty

An agreement associated with a primary contract (often concerning building work) which provides for a duty of care to be extended by one of the contracting parties to a third party not party to the original contract.

Commercially sensitive

Information which if disclosed may prejudice the commercial interests of the property factor or any other person, who may be an individual, a company, a public authority or any other legal entity.

Complaint

An expression of dissatisfaction (either orally or in writing) from a homeowner or homeowners in relation to the standards of service provided by their property factor.

Core Service

Factoring services under agreed fee arrangements which do not incur additional ad hoc fees and charges.

Custom and practice

A course of action between a property factor and homeowners which has historically been undertaken in a particular way and is considered by one or more parties as the norm in the absence of any formal contract or arrangement between a property factor and homeowners.

Data protection policy

A property factor's procedures for how it processes and safeguards personal data in accordance with any relevant data protection requirements.

Delegated authority

Authority granted by homeowners to a property factor to make decisions on their behalf always up to an agreed threshold without the property factor seeking further agreement from the homeowners.

Emergency repair

Where urgent work is required to prevent damage, or in the interests of health and safety, and where there is not time for the property factor to use the normal channels of consultation and decision-making with homeowners.

Enquiries

A request to the property factor (either orally or in writing) from a homeowner asking for information and where the request does not include an expression of dissatisfaction from the homeowner (see "complaint").

Floating funds

The collective term for advance payments made by homeowners kept in a maintenance account by a property factor to deal with routine or minor repairs.

Financial Conduct Authority

The conduct regulator for financial services firms and financial markets in the UK.

First-tier Tribunal for Scotland Housing and Property Chamber

A specialist dispute resolution body (independent from the Scottish Government) whose Housing and Property Chamber deals with undetermined and new disputes between homeowners and property factors from 1 December 2016.

Homeowner

As defined in section 10(5) of the Property Factors (Scotland) Act 2011. Also see Appendix A of the Code.

http://www.legislation.gov.uk/asp/2011/8/section/10

Homeowners within the group

The homeowners who should be informed in cases where a property factor is required to provide certain information or seek approval from as required by the Code in relation to matters which may affect a specific development where these homeowners may reside and/or account(s) held by those homeowners.

Housing Association

As defined in section 1 of the Housing Associations Act 1985

http://www.legislation.gov.uk/ukpga/1985/69/section/1

Land

Both land and any buildings on that land.

Letting agency work

As defined in section 61 of the Housing (Scotland) Act 2014.

http://www.legislation.gov.uk/asp/2014/14/section/61

Local Authority

As defined in section 2 of the Local Government etc. (Scotland) Act 1994.

http://www.legislation.gov.uk/ukpga/1994/39/section/2

Notice of potential liability for costs

A notice registered by a property factor in accordance with section 13 of the Tenements Scotland Act 2004 or section 10A of the Title Conditions (Scotland) Act 2003 for the purposes of recovering common maintenance costs and debts due by homeowners.

Professional indemnity insurance

A form of liability insurance which protects a property factor from bearing the full cost of defending a negligence claim by homeowners.

Property factor

As defined in section 2 of the Property Factors (Scotland) Act 2011.

http://www.legislation.gov.uk/asp/2011/8/section/2

Property factor duties

As defined in section 17(5) of the Property Factors (Scotland) Act 2011.

See Appendix A of this Code.

http://www.legislation.gov.uk/asp/2011/8/section/17

Property factor enforcement order

As defined in section 20 of the Property Factors (Scotland) Act 2011.

http://www.legislation.gov.uk/asp/2011/8/section/20

An order requiring a property factor to undertake such action as a First-tier Tribunal considers necessary, and, where appropriate, make payment to a homeowner, as the First-tier Tribunal considers reasonable.

Property factor registered number

A number allocated to a property factor upon registration by Scottish Ministers in accordance with section 13(1) and 13(2) of the Property Factors (Scotland) Act 2011. A property factor must take all reasonable steps to ensure that this number is included in any document sent to a homeowner.

Property Factors (Scotland) Act 2011 (2011 Act).

An Act of the Scottish Parliament which makes provision for a register of property factors requiring property factors to be registered and the resolution of disputes between homeowners and property factors; and for connected purposes.

http://www.legislation.gov.uk/asp/2011/8/contents

Prudential Regulation Authority

Responsible for the prudential regulation and supervision of insurers.

Public liability insurance

A form of liability insurance which compensates a person if they experience personal injury or damage to their property.

Out-of-hours

The time period which is out-with any standard working hours as set out in a written statement of service provided to a homeowner.

Reasonable

A course of action, consideration or decision which is fair, sensible and appropriate.

Register of property factors

The public register prepared and maintained by the Scottish Ministers (or other delegated authority) under section 1 of 2011 Act.

http://sedsh119.sedsh.gov.uk/propertyfactorregister/

Registered

The property factor is currently entered on the register of property factors with a property factor registered number allocated by Scottish Ministers.

Relevant person

A responsible person (see below) or other individual directly concerned with the control or governance of the property factor listed on the register of property factors in accordance with section 3(2)(d) and 3(8) of the 2011 Act.

Responsible person

The individual, either sole trading as a property factor, or holding the most senior position in the management structure of the partnership, company or body directly concerned with the control or governance of the property factor, listed on the register of property factors in accordance with section 3(2)(c) and 3(9)(a) of the 2011 Act.

Scottish Ministers

As defined in section 44(2) of the Scotland Act 1998.

http://www.legislation.gov.uk/ukpga/1998/46/section/44

Scottish Housing Regulator

Regulates the interests of people who use the services of a social landlord such as a local authority or a housing association.

Sink/reserve funds

A fund used to gather monies from homeowners to pay for major repairs. The arrangements are normally written into the title deeds to the property.

Substantial change

Any change to the written statement of services which is necessary as a result of substantial, amended or additional factoring arrangements, changes to the property factor code of conduct or other relevant legislative requirements (including the finding of a First-tier Tribunal or Upper Tribunal).

Tenement Management Scheme

The tenement management scheme under the Tenements (Scotland) Act 2004 sets out procedures flat owners may need to follow when making 'scheme decisions' about maintaining and repairing common parts, depending on the title deeds.

http://www.legislation.gov.uk/asp/2004/11/schedule/1

Tenements (Scotland) Act 2004

(2004 Act)

An Act of the Scottish Parliament which makes provision about the boundaries and pertinents of properties comprised in tenements (as broadly defined in the 2004 Act) and for the regulation of the rights and duties of the owners of properties comprised in tenements.

http://www.legislation.gov.uk/asp/2004/11/contents

Title Conditions (Scotland) Act 2003

An Act of the Scottish Parliament which makes further provision about real burdens, servitudes and certain other obligations affecting land; to amend the law relating to the ranking of standard securities; and for connected purposes

http://www.legislation.gov.uk/asp/2003/9/contents

Title deeds

Title deeds are proof of ownership of land and buildings and contain various rules that apply to the building.

Tribunals (Scotland) Act 2014

An Act of the Scottish Parliament to establish the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland; and for connected purposes.

http://www.legislation.gov.uk/asp/2014/10/introduction

Unreasonable or excessive

A course of action, consideration or decision where it is reasonable to take the view that the action, consideration or decision is unfair, disproportionate or generally deemed to be beyond what is considered as typical or normal.

Unregistered

Not entered on the register of property factors.

Upper Tribunal for Scotland

A specialist dispute resolution body (independent from the Scottish Government) which considers appeals against decisions (on a point of law) taken by the First-tier Tribunal.

Written statement of service

A document which sets out the service delivery standards of the business arrangement in place between a property factor and a homeowner.