THE HOME OWNER HOUSING 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 1st 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.