Registered Social Landlords (RSLs) may already be concerned about their ability to respond to requests within the statutory 20 working day timescale due to the possible implications of Covid-19. Will Covid-19 affect your FOISA deadlines? In light of the continued spread of the virus, the Scottish Information Commissioner (SIC) has published a statement addressing the obligation on public authorities to comply with the timescales set out in the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (the EIRs).
On 1st May 2019, the Housing (Scotland) Act 2001 was amended to provide Registered Social Landlords (RSLs) with a mandatory ground of eviction where a tenant is criminally convicted. However, almost one year later, there remains a cloud of judicial uncertainty surrounding these cases.
Section 16(2)(aa) of the 2001 Act establishes what is effectively a two-part test for RSLs to have a “mandatory” ground for eviction:
- That a tenant, joint tenant, subtenant, or a person residing, lodging or visiting the property, is convicted of
Freedom of Information (FOI) applied to RSLs as of 11th November 2019 — but did you know that the Climate Change (Scotland) Act 2009 now also applies?
As you will be aware, RSLs are now defined as a Scottish public authority under the new FOI provisions. As the Climate Change (Scotland) Act 2009 applies to a Scottish public authority by way of the definition in the FOI Act of 2002, RSLs will now fall under the scope of the Climate Change Act. The Act
What are the letterhead requirements for companies and charities? Could you as an individual and/or the company/charity be facing possible prosecution and a fine of up to £1,000 with further fines of £100 per day being imposed?
Under the Companies Act 2006, a company registered with Companies House must include their company's registered name (as it appears on the company's certificate of incorporation) in all its business letters, order forms and websites, whether in hard copy or electronic, including:-
- notices and other official publications
Charities may be aware that Office of the Scottish Charity Regulator (OSCR) are asking all charities to report Notifiable Events. Whilst there is no legal requirement to report an event, OSCR are keen to encourage charities to report to them when there has been a significant event which may or may not have a negative impact on an individual charity or the wider charity sector.
Types of notifiable events can be as follows:-
- Fraud and theft
- Significant financial loss
- Incidents of abuse or mistreatment of
In the current economic climate, contractor default is even more prevalent in the construction and engineering industries. Therefore, Registered Social Landlords (RSLs) should always look to protect their position when entering into construction contracts by taking active steps to guard against the risk of potential insolvency of contractors.
This is usually done by the contractor entering into a parent company guarantee or a performance bond which acts as security for losses sustained by the developer should the contractor fail to perform its obligations under
The European Commission has released its updated public procurement thresholds that applies to Registered Social Landlords (RSLs) from 1?January 2020. Every two years, the European Commission updates the financial thresholds at which the EU Directives apply.
The Public Contracts (Scotland) Regulations 2015 set out specific procedures for awarding contracts in excess of the threshold values. Generally, when the value of a contract exceeds the thresholds (see below), it is a mandatory requirement that you publish a notice in the Official Journal of the European Union
The Housing (Scotland) Act 2001 (2001 Act) allows the landlord of a Scottish Secure Tenancy to recover an abandoned property without the need for court proceedings. Section 17, 18 and 19 of the 2001 Act deal with this procedure.
The procedure can only be applied where the landlord has reasonable grounds for believing that:
- the house is unoccupied; and
- the tenant does not intend to occupy it.
To ascertain if this is the position the Housing Association should carry out diligent inquiries and retain a
When proprietors within a tenement instruct a repair by dint of a Scheme Decision made in terms of the Tenement Management Scheme (Schedule 1 to the Tenement (Scotland) Act 2004) any owner in such a tenement can, if they wish, arrange for the repair and then look to the other owners for a contribution to the cost.
In mixed tenure tenements where there are privately owned flats and units let in terms of affordable tenancies (social tenancies) a social landlord might find themselves in such
Grounds for Offering an SSST
There are presently 9 grounds on which a?Registered Social Landlord?may offer a prospective new tenant an SSST (a short Scottish secure tenancy). One of those grounds is that the property is to be let on a temporary basis to a person who is in receipt of a housing support service. This ground can only be relied on where none of the other grounds apply. It is also important to note that this ground cannot be relied on where the tenant
With the availability of websites such as Gumtree and Airbnb, we have seen a sharp rise in tenants engaging in unauthorised sub-letting.
Where the landlord of such properties is a Registered Social Landlord (RSL), the unauthorised sub-letting of a property for excessive sums of money (sometimes whilst the rental charge due to the RSL goes unaddressed!) goes against the principles of social housing.
The present legal position is that an RSL tenant can only sub-let the property with the prior written permission of the landlord.
With shared equity schemes, including Homestake and LiFT, now becoming increasingly popular some Registered Social Landlords (RSLs) and their subsidiaries who are Rural Housing Bodies, have applied a Rural Housing Burden (RHB) on their shared equity developments.? How does shared equity and rural housing burdens work?
What is a Rural Housing Burden?
The official definition is: -
A perpetual personal right of pre-emption contained within the title deeds of a property in favour of a rural housing body which allows the rural housing body the
Joint and Several Liability ? what does it mean?
If there are two or more joint tenants to a Scottish Secure Tenancy Agreement, they will be jointly and severally liable for all of that tenancy?s contractual obligations. What this means for the landlord is that it can hold either one or all of the tenants responsible for any arrears. In effect, the Association, has a choice regarding which of the tenants to pursue. This can often be a practical decision. For example, if you
We previously blogged about data protection breaches under the General Data Protection Regulation (GDPR) and how to deal with the aftermath. Since then, the Information Commissioner?s Office (ICO) has issued its first fine using the GDPR, which came into force in May 2018, and accompanying Data Protection Act 2018.
Under previous legislation, the maximum monetary penalty that could be imposed by the ICO was ?500,000. Only Facebook and Equifax have been the recipients of fines at the maximum level, falling safely within the umbrella of
It is a frustrating situation for Registered Social Landlords (RSLs) when tenants become insolvent and any outstanding debt becomes irrecoverable. Below we answer some common questions around tenants signing trust deeds and sequestration.
Are we obliged to write off any debt? At what stage do we do so?
When a tenant enters into a trust deed, any tenancy debt is affected only if that trust deed proceeds to become protected. You should initially receive communication from a trustee advising that the debtor/tenant has entered into
On 1st July 2019 the above regulations will come into force. These regulations modify the provisions of the 2016 Act whereby residential tenancies granted by charities to provide housing for veterans or temporary accommodation to care leavers cannot be classed as Private Residential Tenancies. This means that such tenancies will sit outside of the statutory regime.
The new regulations do not have retrospective effect. This means that tenancies granted by these organisations
From 1 February 2021 Registered Social Landlords (RSLs) will need to ensure that the fire and carbon monoxide detection systems in their residential properties meet the new ?tolerable standard?. The Scottish Government has introduced a loan scheme in order to assist RSLs implement the changes that may be required. For a further explanation of the new ?tolerable standard? please see our previous blog post.
The loan scheme is called: The Fire and Carbon Monoxide Detection Loan Scheme. Through this scheme, RSLs will be able
The Scottish Information Commissioner (SIC) has recently published two sets of guidance on Freedom of Information (FOI), Registered Social Landlords (RSLs) and the terms of the Order which brings RSLs under the FOI regime.
The guidance relates to:
- How Freedom of Information will apply to RSLs and their subsidiary companies; and
- Which RSL subsidiaries are covered by FOI?
RSLs should read the new guidance on Freedom of Information and be aware of the following key points:
- There will be a two-part test for determining
The Property Factors Scotland Act 2011 required all property factors to register on the newly formed Register of Property Factors. Failure to register is a criminal offence punishable by a fine or even imprisonment! Given the sanctions which exist it is important to be clear who is under an obligation to register. This is still proving a challenge for some entities providing property management services to residential schemes.
The legislation provides a definition of a property factor i.e. a person who, in the course of
Office equipment; repair services; boilers; stationary and much more are bought by Registered Social Landlords (RSLs) as a matter of course.
Sometimes it's simple for an RSL to buy things, other times it's more complex and subject to public procurement law. No matter what, information about what they are buying will be given to the RSL by the supplier.
Come 11 November 2019 this information will be covered by Freedom of Information (FOI). This will impact not only RSLs, but the people and companies that
Are you a Registered Social Landlord engaged in property factoring? Are your factoring practices robust and ready for upcoming changes to the Property Factor's Code of Conduct?
The Property Factors (Scotland) Act 2011 is 6 years old and created a statutory framework providing protections for homeowners who receive services from a property factor. As part of that framework, a Code of Conduct was introduced which sets minimum standards of practice for registered property factors in their business with homeowners.
The Scottish Government has been active
On 11 November 2019 all Scottish RSLs will become subject to Freedom of Information (FOI). This will give members of the public the right to request information that RSLs hold.
Whilst RSLs are currently required to respond to public requests for environmental information, the draft 'Order' published by the Scottish Government on 08 February will mean that RSLs (and in some cases their subsidiaries) need to provide a wide range of information if requested, subject to that Order being approved by parliament. This is
Registered Social Landlords (RSLs) are entitled to terminate a Scottish Secure Tenancy and recover the property where a tenant (or someone residing with or visiting them) has been convicted of a criminal offence. Provision for this is made in Ground 2 of Schedule 2 of the Housing (Scotland) Act 2001. What changes are coming into force regarding evicting criminal tenants in 2019?
There are currently two conditions which must be met before an RSL is entitled to serve a Notice of Proceedings and begin eviction
The Scottish Government is due to introduce new legislation regarding fire and smoke detectors in the aftermath of the Grenfell Tower tragedy. The Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019 is due to come into force on 1 February 2021 and will extend the 'tolerable standard' set out in section 86 of the 1987 Act.
The changes in the Order will apply not just to properties which are occupied by tenants, but all residential properties. Registered Social Landlords (RSLs) and owner
LIBOR (the London Inter-bank Offered Rate) is at the heart of private funding to the housing sector. Post-2022 however, banks will no longer be required to provide LIBOR quotations and thought needs to be given as to how that may affect Registered Social Landlords who have loans that continue beyond 2022 or indeed are taking out loans now.
Is there a proposed replacement for LIBOR?
The most likely replacement is the Sterling Overnight Interest Average (SONIA) administered by the Bank of England. SONIA is based
How can you recover factoring & common maintenance debts from owner-occupiers? A Notice of Potential Liability for Costs (NPLCs) can assist Registered Social Landlords and factors to recover money due by owner-occupiers for factoring and common maintenance debts.
Notice of Potential Liability for Costs
Introduced in 2004, the Notice can be used in relation to flats or houses. It does not solely relate to costs already incurred and can be lodged in relation to planned works where there is doubt regarding an owner's ability to
In September 2016 the Office of National Statistics (ONS) announced that it was reclassifying Registered Social Landlords (RSLs) in Scotland as public non-financial bodies for the purposes of the national accounts. This was due to RSLs being subject to public sector control via the Scottish Housing Regulator?s (SHR) powers over management, constitutional change and disposals of land. As a consequence of this reclassification, RSL debt would have to be counted as a public liability for the purposes of the nation?s accounts. The ONS was
In December 2017 Scottish Government produced their third Consultation Paper on extending Freedom of Information (FOI) to the sector with a draft Order which made both Registered Social Landlords (RSL) and RSL subsidiaries subject to FOI when carrying out ?housing activities? as defined in the Housing (Scotland) Act 2010.? Responses to that Consultation are set out here
The Scottish Federation of Housing Associations commissioned our firm to provide a technical analysis as part of its response. Links to that response and analysis are set out
The Occupiers Liability (Scotland) Act 1960 has given rise to a raft of case law over the past few years. In essence, it sets out the level of care required to be demonstrated by the legal entity who occupies or controls land or premises to any third party who may access such land or premises. This requires the occupier to assess the dangers which exist given the location of such land or premises and to highlight or mitigate any wants and defects which are present.
The various changes to housing management law and practice, which are contained in Housing (Scotland) Act 2014, now have dates set for their introduction.
Almost 4 years after the Act received its Royal Assent, the Commencement Order for these changes has finally been published.
The Act will make changes to a variety of areas.
The changes to the rules on Short Scottish secure tenancies (especially when used as method to deal with antisocial behaviour), the use of criminal convictions as grounds for eviction and the
With less than a month to go before the implementation of the GDPR it is crucial that existing and future public contracts comply with the new legislation.? What will change in respect of public contracts and the GDPR?
The Scottish Government has published a Policy Note on the impact the GDPR will have on public procurement and contracts. This blog will highlight the key features of the note alongside steps organisations should take to get their public contracts and procurement processes GDPR ready.
Under the General Data Protection Regulation (2016/679), a Data Controller is under a strict obligation to report a GDPR breach to the Information Commissioner's Office (ICO) in the event that it meets certain requirements.
Time frame for reporting
You must report a personal data breach, under Article 33, without undue delay and not later than 72 hours after becoming aware of the breach. However, what does becoming aware mean? The Article 29 Working Party Guidance considers awareness being at the point where you have
A Data Protection Officer (DPO) is the individual who is responsible for an organisation?s overall compliance with the GDPR (General Data Protection Regulation).
The GDPR makes it mandatory for a DPO to be appointed for any organisation which is a public body. The definition of public body is taken from Freedom of Information legislation and the new Data Protection Bill. This means that when Freedom of Information legislation is amended to include Registered Social Landlords, you will be required to appoint a DPO. It is
Eviction cases based on anti-social behaviour are always difficult and although they invariably turn on their own particular facts and circumstances, it is possible to draw guidance from the approach of the Courts in previous cases.
A recent example is the case of Midlothian Council v Lee Greens.
This was an action for recovery of possession raised on the basis of three grounds: a failure to pay rent or other breach of a tenancy obligation, relevant conviction and anti-social behaviour.
The only things in life which are certain are death and taxes. They both also cause a great deal of uncertainty in life. We are often asked, what happens to a Scottish secure tenancy when a tenant dies?
What happens to the tenancy?
If there is a joint tenant the tenancy will continue as a sole tenancy in the name of the surviving joint tenant. If there is no joint tenant you will need to consider whether the tenancy passes to a successor. Succession operates
The 20 Year Rule provides that a heritable security (e.g. a standard security) over a private home may be redeemed on repayment of all money advanced under the security together with interest and expenses after 20 years.
This can create issues in shared equity arrangements. In 2014 Scottish Government held a consultation on exempting certain shared equity schemes from the 20 Year Rule. The intention is for the exemptions to take effect in the first half of 2018.
We understand that the Scottish Government has
Carillion, a key supplier to the UK Government, has gone into liquidation. ?The impact has been felt throughout the public sector where there is uncertainty over what will happen to the works and services carried out by Carillion under public contracts.??Many impacted public bodies will be wondering what they can do in terms of public procurement in order to continue provision of key services.
This blog will examine what options are open to public bodies when suppliers of their public contracts encounter financial difficulties.
Many organisations are currently preparing themselves for the General Data Protection Regulation. For many their initial focus for the forthcoming changes (May 2018) may be on their ?day to day business?, but it is also important that their ?day to day business? includes their HR procedures.? Consideration needs to be given to ensure their current procedures comply with the new Data Protection Regulations.
As before, organisations still have a right to obtain and hold personal data providing they adhere to the six data protection
The General Data Protection Regulation (GDPR) will come into force on 25th May 2018 replacing the Data Protection Act 1998. Every public and private organisation in the UK, including RSLs, will have to comply with the regulations which relate to how organisations process and handle personal data.
What are some of the main changes?
- Notice of purpose of processing data
There will be an emphasis on giving notice prior to collecting personal data explaining exactly what you are doing with the data you are
Many housing associations still have a number of tenants who benefit from the protection of the Fair Rent regime.? They are tenants who have been with the housing association since before 2nd January 1989 and have not moved home voluntarily since 30th September 2002.
When fixing a rent for one of these houses, housing associations must be aware that their decision on the rent can be appealed to the Rent Registration Officer and thereafter to the First-tier Tribunal (Housing and Property Chamber) ,
In the current economic climate, Registered Social Landlords (RSLs) are looking to make savings in their procurement processes in any way that they can. Many of our RSL clients have subsidiary companies which can carry out work on their behalf and for third parties. Where an RSL and its subsidiary are members of a VAT group, significant savings may be made. So how should you contract with your subsidiary?
Although a subsidiary is a separate entity and, as such, contracts between the parent and the
What can landlords do if they discover their property is being used for growing or supplying illegal drugs? Will tenants be automatically be evicted for drugs convictions? Surely if the tenant is convicted a landlord can expect to receive an order from the court allowing them to evict?
However, the case of Glasgow Housing Association v Stuart shows that landlords cannot merely rely on a drugs conviction in order to evict.
If a conviction isn't enough, then what is? Recent cases we have been involved
We were approached by a housing association client who wanted to help a vulnerable adult to remain living in his deceased parent?s home. Otherwise there would be no option but for the adult to go into care, leaving the home he was comfortable in.
The housing association agreed to purchase a share, just under 50%, of the property in question and entered into an Occupancy Agreement with both the Trustees under the late mother?s Will Trust and also with the representatives of the son. This
IMMIGRATION CHECKS DO NOT YET APPLY TO LANDLORDS IN SCOTLAND! We previously blogged about the UK Immigration bill which proposed duties on landlords to carry out immigration checks on prospective tenants - essentially checking if someone has the right to rent.
The bill became law on 1st December 2014 in connection with premises located in specific local authorities in England. On 1st February 2016, the scheme was rolled out to the whole of England.
The UK Government now intends to roll out this
The Procurement Reform (Scotland) Act 2014 requires all public bodies (including RSLs) to publish a procurement strategy, where their expenditure on regulated procurements for the next financial year will be at least ?5m. All eligible public bodies were required to publish their first strategy by 31 December 2016. Public bodies must also notify the Scottish Government of the publication of their strategies.
The Act provides for the matters which must be covered by a procurement strategy, which include:
- Setting out how the public body will
On 22 April 2016, further legislation augmenting and transforming rights and responsibilities governing land ownership in Scotland entered into force. Furthering the Scottish Government?s aim of bringing an intended million acres of land into community ownership, the Land Reform (Scotland) Act 2016 makes further provisions designed to engage communities in decision making and facilitate community ownership. ?How can Scottish Land Fund?help community ownership?
The Scottish Government have announced that the?Scottish Land Fund will continue until 2020 and have trebled support to ?10 million a year.
In Scotland, prescription is the law that regulates the period in which parties can pursue claims. ?If I was raising a court action - how long have I got?
Most claims in law prescribe after five years, which means that a party wishing to make a claim after that five year period may be prohibited from successfully raising that claim.
There are certain other categories of claim to which specific periods apply, such as product liability, defamation and harassment.
The purpose of allowing this period
Following the recent signing of the CETA free trade deal between the EU and Canada, many are asking what the UK has in store in relation to trade and, specifically, public procurement rules, upon withdrawal from the EU.
The public procurement rules which apply in Scotland come from the EU Procurement Directive ? therefore, once the UK has left the EU, does this mean the end for public procurement law in this country?
The possible scenarios for the UK?s exit from the EU include:
There were three significant changes to Judicial Review procedures brought in to effect by the Courts Reform (Scotland) Act 2014. The 2014 Act made provision for wide-ranging reforms to the Scottish civil courts system in Scotland, as well as important reforms to the court procedure associated with judicial review in relation to time bar, permission to raise Judicial Review proceedings and the requirement to ?front load? applications for Judicial Review.
It is now a requirement that applications for judicial review are made
You may be aware of developments requiring?all UK private companies, including companies limited by guarantee and UK LLPs, to keep a Person of Significant Control (PSC) Register.
This has been introduced by the Small Business, Enterprise and Employment Act 2015 to increase corporate transparency by creating a full picture of the ownership of businesses.
Registered Social Landlord (RSL) - Co-operative and Community Benefit Society
Most RSLs are societies registered under the Co-operative and Community Benefit Societies Act 2014 (formerly the Industrial and Provident Societies Act