Part 3 – Proposed Modification Order
Part 3 of the consultation paper asked for views on modifying certain provisions of the Property Factors (Scotland) Act 2011 (the 2011 Act) with the purpose of giving further effect to the draft ‘revised’ Code as published as part of this consultation.
Removal from the register and compliance with the Code and property factor enforcement orders
Question 12: For the limited purposes described above, should a de-registered property factor, be required to comply with the Code, including property factor enforcement orders, despite removal from the register of property factors?
As illustrated in Figure 13 below, 70% of respondents thought a de-registered property factor should be required to comply with the Code despite removal from the register of property factors, while 7% thought they should not.
Figure 13: Responses to Question 12. Also see Table 14 (Annex 2: Quantitative Analysis).
Although there was no specific opportunity to comment at Question 12 on Citizen Space, a small number of respondents did make a comment elsewhere within their response. Among the comments from those who supported the proposal was that it provides greater recourse for homeowners in this circumstance. Respondents also made suggestions around how the approach should be taken forward including that a property factor should continue to be held accountable for failures which occurred prior to their de-registration and these should be enforceable by the FTT. It was also suggested that further guidance is required for circumstances whereby a property factor finds it difficult to comply with a decision of the FTT if an appeal is on-going.
One respondent agreed that the legislation should be amended but questioned the suitability of a property factor enforcement order (PFEO) in the event of a determination against a former factor and how they might achieve compliance. A respondent who disagreed was not clear as to why a factor should also be subject still to the PFEO’s which led to their de-registration.
Liability for Registered Property Factors and time limits for submitting homeowner applications to the First-tier Tribunal
Question 13: Should a three-year time limit be introduced for homeowner applications to be initially lodged with the First-tier Tribunal for Scotland Housing and Property Chamber?
Please explain your answer making reference to any alternative suggested timeframe or criteria (if applicable).
As illustrated in Figure 14 below, 55% of respondents thought a three-year time limit should be introduced for homeowner applications to be lodged initially with the First-tier Tribunal for Scotland Housing and Property Chamber, while 19% thought it should not.
Figure 14: Responses to Question 13. Also see Table 15 (Annex 2: Quantitative Analysis).
Those who agreed with the proposal or were unsure most frequently suggested that the three-year time limit was reasonable or fair to both homeowners and factors. Others felt that it is important for a clear timescale to be in place to ensure transparency for both factors and homeowners.
Reasons given for agreeing with the proposal included that it would correspond with the 3-year keeping of correspondence requirement on factors and any professional organisation should have the capacity to keep records over this timescale. It was also suggested that keeping records over a longer than three-year timeframe could be challenging.
Other comments focused on how the approach should work and included that the three-year timeframe should continue to apply if the homeowner moves to a different factor.
The most frequently made comment by those who disagreed or were unsure was that a three-year timeframe seems too long or excessive. Reasons given for taking this view included that:
- A longer period increases the likelihood of personnel having changed or people being unable to recall events.
- The new GDPR may affect the time relevant information can be held.
The most frequently suggested alternative timeframe suggested was one year. Respondents sometimes clarified how they saw this year timeframe being defined. Specific suggestions included a year after someone becomes aware of the matter they wish to lodge.
Other suggestions put forward by one or small number of respondents included:
- 2 years, including as a more reasonable timescale given that ‘continuing failures’ options remain open to homeowners.
- Mirroring SPSO timescales.
An alternative perspective was that three years is too short a timeframe and that five years would be more appropriate.
Other comments on the timeframe included that while there should be a time limit, it should at the discretion of the Chamber President to consider cases dating back beyond the period of limitation under exceptional circumstances.
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