Property Factors (Scotland) Bill to ensure standards of practice

The Office of Fair Trading declared in 2009 that the level of customer dissatisfaction in the property factor industry is far higher than any other industry or sector providing services to the public in Scotland.

The Property Factors (Scotland) Bill was drafted by Govan Law Centre and was introduced to the Scottish Parliament on 1 June 2010 with the specific aim of addressing the failings of the property factor industry in Scotland.

The Bill introduces:

  • A mandatory registration scheme
    This will require every person appointed as a property factor to pass a ‘fit and proper person’ test. The register would be funded by an annual registration fee paid by property factors.
  • A statutory code of conduct
    This will set out basic minimum standards of practice for all registered property factors. Homeowners would rely on these in their day-to-day dealings with their property factor. In extreme cases any factor falling below the minimum standards could be de-registered, preventing them from causing ongoing detriment to homeowners.
  • An accessible dispute resolution procedure
    It is expected that a Property Management Committee will be set up to hear disputes between homeowners and factors. This Committee would have the power to ensure compliance with any contracts and minimum standards of practice, and where appropriate, require the factor to make a compensatory award or refund to the homeowner.

Mike Dailly, Principal Solicitor of the Govan Law Centre, said: “Property factors must be the only industry in Scotland who are virtually unlicensed and unregulated. When one-third of your customers are unhappy with the service you provide it’s time for a statutory solution. The Scottish Government are consulting on a voluntary accreditation scheme, but we’ve had self-regulation for centuries and it hasn’t worked. The people of Scotland need a solution with legal teeth, and the bill provides that solution in a fair and measured way.”

It is anticipated that the provisions of the Bill will come into force on 29 September 2011.

Nicola McCafferty
Solicitor

Bribery Act 2010 seminar

It has been very interesting to deliver seminars in Aberdeen and Glasgow this month on the implications of the new Bribery Act 2010. It is scheduled to come into force in April 2011 and the Ministry of Justice started consultation on guidance on anti-bribery procedures last week. The new law is set to be on the agenda for all organisations – private, public and third sectors – in the coming months.

What became clear in discussion with delegates at both seminars is that the new Act will, I think, change the perception that corruption is really only a risk for the largest corporates bidding for large, oversea government contracts. Prosecution will also be made significantly easier.

Two new aspects of the law in particular provoked discussion. The first was that people or organisations with a UK association can be prosecuted in the UK for actions carried out exclusively overseas. They will normally be judged by UK standards and not the common practice in the relevant overseas territory. This is likely to present a risk to large numbers of businesses doing business overseas who, for example, reluctantly make “facilitation payments” as it appears to be the only way to do business effectively.

Secondly, if anyone associated with an organisation commits a corrupt act (here or overseas), the organisation, as well as the individual, can be prosecuted. It does not matter that, for example, the board of directors was unaware that an agent was engaging in corrupt practices. The only defence is for the organisation to demonstrate that it had adequate anti-bribery procedures in place. This will be the focus for many organisations between now and April: reviewing current procedures or putting procedures in place for the first time.

I’m presenting a seminar in Dundee on 28 October which is open to all and I hope the discussion will help as many as possible understand how this new law is likely to affect their organisation and start thinking about any action they need to take to mitigate the risks.

To register to attend the free seminar please email chris.terry@blackadders.co.uk.

Campbell Clark
Partner

UK renewable energy uptake continues

The Latest Ofgem figures show a boom in small-scale renewable energy systems across the UK.

Since the introduction of the feed in tariff (FIT) by the previous government in April 2010, over 9000 new wind, solar, hydro and micro combined heat and power projects have been installed by both householders and commercial organisations.  Installations in August doubled those in July with nearly 4000 householders going green.

FITs are sometimes better known as ‘Clean Energy Cashbacks’, which describes exactly how they work.

Favourite small-scale renewable energy technologies in the UK remain wind energy and solar power, although hydro-electric power is becoming more popular with almost 40 new projects last month.

The FIT is also attracting European solar companies to the UK. For a fact sheet on the FIT we recommend a visit to the UK energy regulator Ofgem website.

Shaun Mackintosh
Associate

Renewable energy consultation

Yet another consultation exercise has been announced by the Scottish Government. This time it has started consulting on changes to the Renewables Obligation (Scotland) Order 2010.

There are significant proposals for this important and growing sector of the economy, which can benefit many Scottish businesses.

On wave and tidal proposals, the Renewable Energy Association’s chief executive Gaynor Hartnell said: “This is good news for wave and tidal generators. This embryonic industry needs all the support it can get. The UK needs to act swiftly to maintain its leading position. We are at risk of losing out on an industry in which we could be world leaders, just as we did with wind energy in the 1980s, which went to the Danes and Germans. This move must be coupled with a consenting regime which facilitates, rather than frustrates developing projects in UK waters.”

You can contribute by following this link: consultation.

Shaun Mackintosh
Associate

Local Development Plan for Dundee

It has been confirmed to us that Dundee City Council has commenced work towards preparing a Local Development Plan which will in time replace the adopted Dundee Local Plan Review 2005.

The Local Development Plan will set out the strategy which will guide future development of the city for a period of 5 years and provide broad indications of growth for up to 10 years in the future. The plan will also contain policies and proposals covering the principal land use issues in the city and when adopted will be the principal consideration in the determination of planning applications.

The council are undertaking a consultation exercise on the plan and are inviting comments to be submitted to them before 8th October 2010.

Any of our clients who are landowners or have an interest in land in Dundee and who want to promote it for development should consider contacting Shaun Mackintosh who heads Blackadders’ Planning team. Shaun would be happy to advise on the way forward for promotion of any site with the council. Shaun can be contacted on 01382 229222 or shaun.mackintosh@blackadders.co.uk.

Construction Law: Take care when signing Letters of Appointment

It is standard practice that the professional team sign up to Letters of Appointment for any project. But how many employers, architects, engineers or other consultants actually take the time to read through or instruct someone else to look at what the appointment actually says before signing up to it?

The appointment is the contractual arrangement that indicates exactly what services are to be provided and the standard to which those services should be carried out to. It doesn’t take more than a few words to transform a relatively fair appointment into one that would leave any consultant struggling to defend themselves should a dispute arise.

The appointment may in many cases seem like a relatively straightforward contract, but it is as much about what is omitted as what is included. Each appointment should be specifically tailored to suit the requirements of the current project – it could be a costly mistake for an employer to appoint someone using a standard appointment.

If you need help with any construction law issues please contact kyle.moir@blackadders.co.uk or david.milne@blackadders.co.uk.