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Changes to Industrial and Provident Societies in 2014

Organisations which operate primarily for the benefit of the community, such as Registered Social Landlords, have the opportunity to register under the Industrial and Provident Societies Act, rather than under the Companies Acts. A number of changes aimed at modernising the law which applies to Industrial and Provident Societies are set to come into force in 2014.

From 6th April 2014:

  • The capital limit on withdrawable shares held by each member of an Industrial and Providential Society is set to increase from £20,000 to

High Hedges (Scotland) Act comes into force 1 April 2014

High Hedges (Scotland) Act comes into force 1 April 2014

The High Hedges (Scotland) Act comes into force on 1st April 2014 for those who are fed up with their neighbour's overgrown privet blocking their sunlight:

Under the High Hedges Bill, individuals will be able to approach their local authority for assistance if they are unable to come to an amicable solution with their neighbour, in circumstances where they feel that a 'high hedge' on neighbouring land is adversely affecting the reasonable enjoyment of their property.

The definition of a 'high hedge' includes a

What is a Limited Company?

What is a Limited Company?

What is a limited company? The limited company is the most common business vehicle in use in the UK. It must be incorporated (registered) at Companies House and, once incorporated, the limited company becomes a separate legal entity, distinct from its shareholders, directors and employees.

In considering whether this is the best business vehicle for you, you must first know the basics of a limited company.

On incorporation under the Companies Act 2006, a limited company is required to have a Memorandum defining the company's

Who Legally Owns the Attic Space in Scottish Tenements?

Who Legally Owns the Attic Space in Scottish Tenements?

Who legally owns the attic space in Scottish Tenements? The ownership and maintenance of the attic space and roof of a tenement block can cause significant confusion for flat owners. Despite statements to the contrary, the legal position relating to these parts of the tenement has not been altered significantly following the enactment of the Tenements (Scotland) Act 2004.

Ownership

The key starting point when seeking to determine ownership of the "common parts" of a tenement will be to consult the title deeds for all flats

Land Registration in Scotland - Changes to the System

Land Registration in Scotland - Changes to the System

The last time the system of land registration in Scotland was fundamentally changed was in 1979. After 1979 title to land would be based on areas plotted on the Ordnance Survey map in the form of a Land Certificate. The Certificate would be issued by the Land Register following completion of a sale transaction and the title would be guaranteed by the Government.

Gradually as properties have been sold over the years many have moved on to the map based system. However, much land and

The Procurement Reform (Scotland) Bill is Introduced

The Procurement Reform (Scotland) Bill is Introduced

The Procurement Reform Scotland Bill was introduced in the Scottish Parliament on 3 October 2013. Once it becomes law, the Act will exist alongside the current procurement regulations, but will make some fundamental changes in the way public contracts are procured in Scotland.

Some of the main changes are:

  • Increased regulation - supplies/services contracts with a value of £50,000 or more and works contracts with a value of £2,000,000 or more which are currently not covered by the procurement regulations are subject to the Bill;

Help to Buy Scotland Creating Housing Bubble?

Help to Buy Scotland Creating Housing Bubble?

Will introducing 'Help to Buy' in Scotland take us down the route of another housing bubble?

The controversy surrounding the Help to Buy Scheme south of the border has not prevented a similar government-backed scheme being introduced in Scotland. The Scottish Government announced investment of £220m over three years to provide financial assistance to eligible homebuyers in what it has described as a "game changing initiative" for the housing industry.

The Help to Buy scheme, which has the support of the Council of Mortgage

Procurement Regulations and Time-Barred Challenges

Procurement Regulations and Time-Barred Challenges

What do you know about procurement regulations and time barred challenges? The case of Nationwide Gritting Services Limited (NGS) against the Scottish Ministers sheds some light on the challenge timescales under procurement regulations, but unfortunately does little to provide comfort to contracting authorities embarking on procurement exercises.

The 2006 regulations outlined that court proceedings for a breach of those regulations must be brought within 3 months from the date when grounds for bringing proceedings first arose. Under the new 2012 regulations, this is now 30

Property Factors Act - The Deadline is Looming!

Property Factors Act - The Deadline is Looming!

For all of those Registered Social Landlords (RSLs) who provide property management services, the deadline of 1st October 2013 to provide your factored owners with a written statement of service is drawing near.

Many housing associations have been working throughout the summer months preparing their bespoke written statement for issue. However some RSLs are still in a quandary as to whether or not they do indeed provide factoring services, what services they provide and what the costs of that service should be.

We have

What does a Servitude mean in Scotland?

What does a Servitude mean in Scotland?

To most people the word servitude conjures images of slavery, although thankfully that way of life is long gone! In Scotland, however, a servitude is a right over a piece of land (the burdened property) for the benefit of another (the benefitted property). This longstanding concept is still very much relevant today.

What does that really mean?

A servitude can give someone else rights over your property. Conversely, it can give you rights over a property belonging to someone else. Common examples of servitudes include:

Green Deal in Scotland - Is It Any Good?

Green Deal in Scotland - Is It Any Good?

The Green Deal in Scotland encourages homeowners and tenants to introduce energy saving measures to their properties. It has been promoted as a solution to solving some of the problems which put off individuals financing energy saving improvements to their homes. 

When Green Deal finance has been obtained there is no requirement to repay the loan in the standard way, instead the money is recouped by the energy supplier by way of added charges to their energy bill. Another feature is that the obligation does

Public Procurement in Scotland

Public Procurement in Scotland

The Scottish Government is still working on its proposed Procurement Reform Bill and recently issued an update on progress. Does this mean all change for public procurement in Scotland? It was hoped that the draft Bill would be introduced to Parliament in advance of the summer recess 2013. However, the Government has confirmed that the introduction of the Bill has now been postponed until after the summer recess.

This is primarily due to the new EU draft Procurement Directive, which is currently working its way

Using Bankruptcy to Recover Debt in Scotland

Using Bankruptcy to Recover Debt in Scotland

Where a decree has been awarded in favour of a creditor and payment is not forthcoming after a charge for payment has been issued, a creditor may consider applying to make the debtor bankrupt to recover sums due. How can you use bankruptcy to recover debt in Scotland?

If a debtor is declared bankrupt, their full estate including their home will be handed over to the appointed trustee (usually the accountant in bankruptcy). It is the duty of the trustee to sell the debtor's assets

Commercial Contract: ensure accurate clauses

Commercial Contract: ensure accurate clauses

A Court of Session decision in the case of Patersons of Greenoakhill Limited v Biffa Waste Services Limited highlights the significance of getting contract clauses right first time. This case demonstrates that cost implications to businesses can potentially be significant when mistakes in drawing up clauses in commercial contracts are made.

Patersons operated a landfill site and also had a controlling shareholding in a waste collection business. Biffa sought to purchase the waste collection business.

Patersons proceeded with this transaction on the basis that Biffa

So You Want to Be a Company Director?

So You Want to Be a Company Director?

S172 of the Companies Act 2006 states that a company director must:

"act in the way he considers, in good faith, is most likely to promote the success of the company for the benefit of its members as a whole"

When it was introduced, this section of the Act created a great deal of concern, was it a step too far in terms of directors' statutory duties?

However, it seems that the controversy surrounding this section was ill-founded, as we have been living with it

Property Factor's Written Services Statement

Property Factor's Written Services Statement

The Property Factors (Scotland) Act 2011 has shaken up the previously unregulated, and unstructured, property factoring regime in Scotland and has introduced the Property Factor's written services statement. Although the provisions within the Act came into force on 1 October 2012, it seems many organisations and individuals are playing "catch up" with how the changes affect them, including the Property Factor's written services statement.

Written Statement of Services

In addition to the Act itself, property managers must also comply with the Code of Conduct.

Debt Recovery and Using an Inhibition

Debt Recovery and Using an Inhibition

When it comes to debt recovery, a pursuer must obtain a payment decree from the Sheriff Court against a defender (debtor), and then take steps to enforce the decree in order to recover sums due.

One of a number of different procedures a pursuer can utilise,with a view to recovering an outstanding sum, is an inhibition.

  • Once registered this prohibits a defender from selling, transferring or otherwise disposing of any land and other immoveable assets i.e. houses and commercial premises, until the debt is settled

Do You Need a Common Insurance Policy in Scotland?

Do You Need a Common Insurance Policy in Scotland?

Owners have a duty to ensure that their own property and any common parts are adequately insured. The title deeds for your property will state whether or not you are obliged to take out a joint insurance policy with other owners to cover both your own property and/or common areas affecting a larger building. So do you need a common insurance policy in Scotland?

The level of insurance is generally its re-instatement value, namely the cost of re-building your home from scratch. The re-instatement value

Procurement Interim Orders and Public Interest

Procurement Interim Orders and Public Interest

The case of Glasgow Rent Deposit & Support Scheme against Glasgow City Council and Ypeople (decided on 6 December 2012) highlights the court's reluctance to delay a contract award because of an alleged breach of the procurement regulations where this would be detrimental to the public interest.

GCC tendered for a service providing increased access to housing for the homeless and specifically the provision of a deposit guarantee scheme and temporary furnished accommodation. The pursuer raised the action and asked that the decision to award

Payment of Adjudicator Fees

Payment of Adjudicator Fees

How much do you know about the payment of adjudicator fees? The Court of Appeal in England has ruled that adjudicators are not entitled to payment of their fees where their decisions are unenforceable. Adjudication is a common alternative to court action in construction disputes and is referred to as the first 'port-of-call' for resolution of any dispute in the majority of construction contracts.

PC Harrington Contractors Ltd and Systech International Ltd:

The First Ruling

In the first instance, the court ruled that the role

Hedging Their Bets - The High Hedges (Scotland) Bill

Hedging Their Bets - The High Hedges (Scotland) Bill

Problems with your neighbour's leylandii? Are their trees blocking out the morning sun and they won't do anything about it? Well, the Scottish Parliament looks set to provide you with a helping hand following the introduction of the High Hedges (Scotland) Bill as a private member's Bill in October 2012.

The proposed legislation would give someone recourse to their local authority if they are unable to come to an amicable solution with their neighbour in circumstances where they feel that a "high hedge" on neighbouring

Acquiring Rights to Land by Way of Prescription

Acquiring Rights to Land by Way of Prescription

Prescription is the process of acquiring rights and in particular obtaining a good title to land as a result of the passage of time. The reasoning behind this is that a person who has enjoyed 'quiet and uninterrupted' possession of land for a long period of time with a registered title should be granted a right to it.

There are two forms of prescription, positive and negative.

Positive Prescription

  • Land

Positive Prescription provides that where someone has possessed land "openly, peaceably and without judicial interruption

Recording Land Ownership in Scotland

Recording Land Ownership in Scotland

The Land Registration (Scotland) Act 1979 introduced Scotland to a map-based Register as a means of recording land ownership in Scotland. The map-based system is backed by a state guarantee and provides information and identification of registered subjects with certainty. Legislation identifies what information must be supplied at the time of registration and Registers of Scotland have published guidance on deed plan criteria. It is now the case that any newly prepared plan that does not adhere to the guidelines is not likely to be

Asbestos Regulations

Asbestos Regulations

Is asbestos a continuing concern for organisations or a thing of the past? Well, the answer is: a bit of both really.

Although asbestos has been banned throughout the UK since the 1980s and all related materials ceased to be used prior to the end of the last century - regulations governing asbestos within commercial premises have recently been introduced.

It cannot be argued that these regulations and those within the Control of Asbestos at Work Regulations 2002 are not of continuing relevance to commercial

The End of the Long Lease

The End of the Long Lease

The Long Leases (Scotland) Act 2012 received Royal Assent on 7 August 2012 and will bring an end ultra-long leases (those for more than 175 years) by converting them into ownership.

The intention is that on the Appointed Day (understood to be 28th November 2015) all eligible leases will be converted into ownership on that day unless the tenant opts out.

An eligible ultra-long lease is one that was: 

  • Let for more than 175 years and, at the Appointed Day has more than 175 years

LIBOR Rate Fixing Scandal - How Does This Affect You?

LIBOR Rate Fixing Scandal - How Does This Affect You?

If you open a newspaper or turn on your television, you are once again bombarded with headlines on yet another banking related scandal - this time LIBOR rate fixing. With the resignation of Barclay's chief executive and more revelations in relation to rate fixing practices by the major banks you may be wondering what it's all about, and how it affects you.

  • What is LIBOR?

The current issues surround the LIBOR interest rate. This is the average rate at which the major banks confirm that

Section 75 agreements & impact on the planning process

Section 75 agreements & impact on the planning process

Section 75 Agreements have been part of the planning process for some time. In recent years their use has increased as a means of addressing issues which may flow from a planning application. The Scottish Government issued guidance setting out Policy Tests which must be met before a Section 75 Agreement is to be used. Section 75 Agreements do not replicate planning conditions, instead they introduce planning obligations.

The Policy Tests are as follows:

  • Should be necessary;
  • Should serve a planning purpose;
  • Should be related

Debt recovery Scotland: Have you considered bank arrestment?

Debt recovery Scotland: Have you considered bank arrestment?

Debt Recovery Scotland - Where an order for payment is granted in a court or tribunal, this will not automatically result in payment. The order will need to be enforced against the debtor and his or her assets. One method of enforcing an order for payment is by executing an arrestment.

What is an arrestment?

A form of diligence where a creditor with a court order can arrest the debtor's moveable property where that property is in the hands of a third party, e.g. arrestment

Importance of Signing a Building Contract

Importance of Signing a Building Contract

We are regularly consulted when there is a dispute regarding a building contract. In order to advise the client, we ask to see the signed contract, only to find that the contract was never actually executed (signed) by both parties. Sometimes there is a letter confirming acceptance of a tender, but the actual contract terms have never been signed. Clearly this presents problems determining exactly what obligations there were on the contractor and the manner in which these were breached, leading to disputes. How important

City of Edinburgh Council Suspend Statutory Notices

City of Edinburgh Council Suspend Statutory Notices

Concerns over tendering for work under the City of Edinburgh Council Statutory Notices Scheme has resulted in an independent investigation being carried out by Deloitte. Until the investigation is complete all non-emergency statutory repair work has been suspended. Only emergency work, or work which has already started, will be dealt with. You can check the Council's website to find out what is categorised as an emergency:

Edinburgh City Council Statutory Repairs

What if a Statutory Notice is in place but the work has not started?

Is it Possible to Have an Agreement to Agree?

Is it Possible to Have an Agreement to Agree?

Is it possible to have an agreement to agree? From the bus in the morning, to that mid-afternoon pick-me-up coffee, we constantly enter into informal "contracts" or "agreements" with others. These transactions benefit from certainty. Pay £1.80 and you will receive a bus ticket. Simple. But contracts can be much more complex than this.

We still see many formal contracts with startling degrees of informality and uncertainty in the drafting.

The question of how much certainty a contract must have to be enforceable was tackled

Collateral Warranties - Key Clauses

Collateral Warranties - Key Clauses

In basic terms, 3 parties are involved in collateral warranties:

- A contractor

- A beneficiary (third party)

- An employer

Collateral warranties provide a contractual link between a third party (the beneficiary) and a contractor which has carried out certain works or provided certain services for the employer.

So when is it appropriate to use one?

It is often appropriate to expect collateral warranties when:

  • A first purchaser acquires a new build development
  • The employer is the developer and sells the completed site to

Legal Advice for Japanese Knotweed in Scotland

Legal Advice for Japanese Knotweed in Scotland

Japanese Knotweed is innocuously - even exotically - named but can prove to be a persistent and costly problem if it is found on your land. As an extremely invasive species, Knotweed can take over gardens, as well as potentially damage buildings, if not eradicated properly. Do you need legal advice for Japanese Knotweed in Scotland?

What can you do if Japanese Knotweed is spreading to your property?

Knotweed can also prove to be a significant problem if it is growing on a neighbouring property

Rights of Unsuccessful Tenderers

Rights of Unsuccessful Tenderers

The procurement regulations set down the rights and remedies available to unsuccessful tenderers who have suffered or are likely to suffer loss as a result of a breach of those regulations.

Where the aggrieved tenderer can show that a breach has occurred the court can:

  • suspend the process
  • set aside the decision leading to the contract award
  • declare the contract ineffective
  • award damages

However the regulations only apply to works, services and supplies contracts over certain values.

Does this mean that a court action cannot

How to Purchase Land from an Unknown Owner

How to Purchase Land from an Unknown Owner

Ever wondered what happens if you want to purchase land from an unknown owner?
When a land title is in the name of a dissolved company (or where no owner can be identified) ownership will transfer to the Crown.

What happens if I want to buy the land?
Potential purchasers will have to contact the Queen's & Lord Treasurer's Remembrancer (the QLTR) to obtain the title.

When initially contacting the QLTR, evidence that the company in question has been dissolved should be provided, along with

Using Commercial Court for Business Disputes

Using Commercial Court for Business Disputes

In an increasingly litigious society it is important to reflect on all of the options available when considering a court action in relation to business disputes. With the Court of Session becoming significantly busier, the Commercial Court offers a swift and robust procedure in which to raise actions. However, individuals and organisations are not making best use of this alternative court, largely through misunderstanding its use and appreciation that they can in fact use it!

The key features of the commercial court's procedures are set

Changes to Construction Contracts

Changes to Construction Contracts

As of 1 November 2011 the Local Democracy, Economic Development and Construction Act 2009 comes into force, amending the Housing Grants, Construction and Regeneration Act 1996. The changes will affect construction contracts entered into from 1 November 2011.

The main changes are:

  • The 1996 Act now applies to construction contracts even where they are not in writing;
  • An adjudicator now has the ability to make changes to his/her decision, insofar as to correct any typos or other errors. Previously, where an adjudicator's decision contained a

How to Find a Debtor Then Raise a Court Action

How to Find a Debtor Then Raise a Court Action

We are frequently asked to raise court actions against debtors whose whereabouts are unknown; would you know how to find a debtor then raise a court action?

In any court action, a summons needs to be served on a debtor. The whereabouts of a debtor may be unknown because:

  • The debtor may have moved to another address without the creditor's knowledge since the original debt accrued
  • The debtor has not provided an address
  • Or, as is sometime the case, provided an inaccurate address

Many creditors

Procurement Process: Challenging the Final Decision

Procurement Process: Challenging the Final Decision

Under the procurement regulations, an organisation engaged in a procurement exercise should allow a 'standstill period' of 10 days to elapse between notifying the tenderers of the successful party and awarding the contract. If an unsuccessful tenderer raises a legal challenge to the procurement process during the standstill period, the organisation cannot proceed to award the contract without first obtaining an order from the court.

In a recent case from Northern Ireland (Rutledge Recruitment and Training Limited v Department for Employment and Learning)

Procurement Process and Framework Agreements

Procurement Process and Framework Agreements

When going through a procurement process how do you ensure you are getting your framework agreements right?

What are framework agreements?

A framework agreement is a "contract" under the procurement regulations, but it is not a contract in the traditional sense. It is an agreement whereby a number of contractors are appointed to the framework, and the client may award specific contracts to any one of those contractors during the lifetime of the framework. However, there is no obligation on the client to do so.

Boundary Dispute: Responsibility for Maintaining a Boundary

Boundary Dispute: Responsibility for Maintaining a Boundary

Although the law on boundary walls/fences is relatively straight forward, the issue of ownership or maintenance, in practice, is sometimes a difficult and sensitive issue. A seemingly minor disagreement can quickly become a full-scale boundary dispute involving solicitors' letters and threats of court action.

With any boundary queries:

  • At the outset you should review the relevant title deeds to see if there is anything which defines ownership or maintenance responsibility for the boundary feature.
  • The information contained in the title deeds takes precedence over any

How to Recover Money From a Debtor

How to Recover Money From a Debtor

How can you recover money from a debtor if you obtain a court Order which orders your debtor to pay you the debt but your debtor does not make payment?

Do you know what you do next? This is a predicament frequently faced by individuals and organisations who seek to recover debt. Do not give up as there are various options available!

First Step
If you wish to pursue the debt, the first step is to serve a Charge for Payment. This is a statutory

What are Collateral Warranties? Explaining the Basics

What are Collateral Warranties? Explaining the Basics

What are collateral warranties?
Collateral warranties are contracts which are designed to establish a contractual link between a third party (the beneficiary) and a contractor or consultant who has carried out certain works.

Why are they required?
In the case of a building contract, collateral warranties are a promise from the contractor to the beneficiary that the works have been carried out in accordance with the building contract. If the works have been carried out negligently, the beneficiary has a right of recourse against the

Get the Procurement Process Basics Right!

Get the Procurement Process Basics Right!

Many of our clients come too late for procurement advice, as they have already received notice of a potential challenge under the procurement regulations. If you are about to embark on a procurement exercise you should ask the following at the outset:

1. What type of contract is it?
The procurement regulations apply to contracts for works, services and supplies. Although it seems easy to identify what constitutes 'work' that isn't always the case!

A good rule of thumb to follow is that maintenance of

Finance Bill 2011 - SDLT Relief on Property Purchases

Finance Bill 2011 - SDLT Relief on Property Purchases

The Finance Bill 2011 will provide a fairer system of charging SDLT for those buying property in bulk, be this blocks of flats or a number of properties off plan from a Developer.

Historically, on purchases of this type, the SDLT rate would be calculated on the global price paid often resulting in a huge SDLT bill. For some trading subsidiaries of RSLs this substantial outlay has been off putting. Once the Finance Bill receives Royal Assent, SDLT for such multiple purchases will be

Procurement Process: Get the Basics Right

Procurement Process: Get the Basics Right

Clients continue to have a lot of questions concerning the procurement process and rightly so. The risk of getting it wrong can be very costly for an organisation. So just how do you get the procurement process right?

A common pitfall under the procurement regulations is a failure to make the distinction between selection and award criteria. Such failures can be costly, leading to a challenge under the regulations. Although it seems that there is little guidance in the area, there are some useful hints

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