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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

Home Owner Housing Panel in Scotland

Home Owner Housing Panel in Scotland

The Home Owner Housing Panel (HoHp) was established by the Property Factors Act 2011 to act as a dispute resolution mechanism for problems between homeowners and their factors. The HoHp are now actively receiving complaints from homeowners alleging that their property manager has failed to meet their factoring duties or has failed to comply with the Property Factors' Code of Conduct which is set out in the Act. Where a homeowner's complaint cannot be resolved through the factor's own complaints procedure a homeowner can make

Consumer Credit Regulation: why RSLs can't ignore changes

In March 2013, HM Treasury published its consultation on transferring consumer credit regulation from the Office of Fair Trading to the Finance Conduct Authority on 1 April 2014 to create a ?tougher and more pro-active? regulatory regime. When that happens authorisation, monitoring and supervision is likely to be more rigorous and costly for RSLs.

Fascinating.? But what?s it got to do with us?

Many RSLs (RSLs) and subsidiaries have consumer credit (CCA) licences ? primarily through participation in the LIFT Scheme where? they act as

High Hedges Act - legal update

High Hedges Act - legal update

Sunlight in Scotland is a rare enough thing and we cherish each moment we can get. If you have a neighbour who does not or cannot keep a boundary hedge under control and at a manageable height, you may be losing out on this precious resource. Disputes over the height of boundary hedges (whether the dreaded leylandii, other evergreen or deciduous trees or shrubs separating theirs and yours), can be a bit of a powder keg issue especially when emotions run high (no pun intended!!).

Property Factors (Scotland) Act 2011 ? Update for RSLs

In?line with the requirements of the Property Factors (Scotland) Act 2011, the Private Housing Services Team within the Scottish Government are in the process of contacting all registered factors (including RSLs) to remind them that they are required to confirm or update the list of properties which they manage by 30th June 2013.??

What do I need to do?

  • ?A note of all properties and details of all land managed by each factor.?

The properties which must be listed are those

Challenging the procurement process

Challenging the procurement process

If you are considering challenging the procurement process are you aware that the courts will consider the public interest. The procurement regulations provide that,

where a legal challenge based on a breach of the procurement regulations has been raised following the completion of a tender process, the public body procuring the contract is prohibited from entering into the contract with the successful bidder until the legal proceedings are resolved, or the court grants an interim order lifting this prohibition.

In the case of Hastings

Rent arrears, tenant eviction & the bedroom tax

I can?t seem to get away from the bedroom tax. Having blogged about this topic for the last couple of months, I thought an update might be useful regarding rent arrears, tenant eviction and the bedroom tax.

The changes to housing benefit came into force on 1 April 2013. From that date Housing benefits claimants who are deemed to have a ?spare? bedroom will see their housing benefit payments reduced by either 14% or 5%.

Campaign groups have continued to mobilise their opposition to these

Can right to buy applications be refused?

The Right to Buy (RTB) process is managed by various legal time limits. As a result, a straightforward transaction should take around seven months to complete from receipt of the application to handing over the title. So can Right to Buy applications be refused?

One of the most important time limits is the one month period within which a landlord must refuse or reject an application to buy under the RTB legislation.

Failure to act timeously may result in the landlord being forced to sell

Tenant eviction and the bedroom tax

Tenant eviction and the bedroom tax (or the ?spare room subsidy? if you?re a cabinet minister!) continue to dominate conversation in the housing world.

My blog last month put forward some ideas to minimise the impact of the changes to Housing Benefit which are now just two weeks away.

It also seems that the UK government are starting to get cold feet. Yesterday Ian Duncan Smith, the current Secretary of State for Work and Pensions, announced that guidance will be issued that will exempt foster

What is housing bond finance?

What is housing bond finance?

Housing bond finance is essentially a loan agreement used to provide financing for a borrower and income for a lender. Called a "security" because they have a fixed yield, bonds compel the borrower to pay interest on the amount of the loan. This is called the principal or par value.

The capital is normally paid in full by the borrower at maturity although some bonds do provide for repayment over the period of the loan agreement. Until maturity, the borrower makes interest payments to the

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

Bedroom tax impact on housing associations

My previous blog looked at the forthcoming bedroom tax impact on housing associations and offered some suggestions on minimising its impact.

Glasgow Advice Agency, an organisation which provides welfare rights and advice services across the South and North East of Glasgow, have recently obtained and published an opinion from Jonathan Mitchell, Q.C. The opinion is published via the website of Govan Law Centre (one of the Agency?s member organisations) here.

In this blog, I will look at arguments that rooms of certain sizes should

Housing Associations & the bedroom tax ?

There cannot be a single housing association which is not aware of forthcoming changes to housing benefit and the impact of the bedroom tax. These changes will see reductions in housing benefit to tenants who are deemed to be over-occupying. New rules will set out:

-? The number of bedrooms which will be eligible for benefit

-? If a tenant has one spare bedroom, then 14% of their benefit will be removed

-? If they have two or more spare bedrooms, then their benefit will

Gritting common areas - landlord?s responsibility?

In a previous blog about landlords? duties during the winter months, we highlighted the possible duty for landlords under the Occupiers Liability (Scotland) Act 1960 to ensure that they are gritting common areas.

Continuing the gritting common areas theme, a very interesting judgement has now been released in a sheriff court case. The case is Bonham v Pentland Housing Association.

-? Ms Bonham was a tenant of Pentland HA

-? In December 2009, she fell on the pavement area outside her home, breaking her

Housing Associations: How to follow the Golden Brick Road?

Housing Associations: How to follow the Golden Brick Road?

Golden brick is a familiar term to housing associations in relation to development sites and taxation but how will they follow the golden brick road? So, where Dorothy discovered the Wizard was simply an ordinary man, what will housing associations' discover if they pull back the curtain for golden brick?

What is Golden Brick?

Housing Associations (HAs) are not generally able to recover VAT on rented properties and have limited recovery prospects for shared ownership schemes. As a result they will always seek to

General Consent - Remember the Audit Trail

Registered Social Landlords (RSLs) will be aware of the need to obtain Section 107 consent from the Scottish Housing Regulator (SHR) prior to any disposal of land, unless the type of disposal is specifically exempted or is covered by General Consent.

General Consent will cover: -

  • Sale of land, untenanted social houses or other assets up to and including ?100,000
  • Sale of untenanted social houses to another RSL
  • Sale of untenanted houses, land or other assets to another RSL as part of a development agreement

Procurement interim orders & public interest

Procurement interim orders & 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 the

Scottish Housing Bill ? more legal changes ?

Last year I blogged about the possibility of another Scottish Housing Bill during 2012 and more legal changes. That did not come to pass but plans are afoot for a Bill in 2013. Discussions are proceeding about the contents of the Bill.

I would imagine that one proposal which would meet almost universal support would be a ground for compulsory eviction where tenants are guilty of serious antisocial behaviour.

The UK Home Office published a draft Antisocial Behaviour Bill which will apply only to England

Welfare Reform Bill ? A Bedroom Tax

The UK Government?s Welfare Reform Bill will introduce a bedroom tax which will reduce the amount of housing benefit support that can be given to tenants in the social rented sector by introducing new criteria for working-age housing benefit claimants who have extra bedrooms.

People who are judged to be ?under occupying? their home by one bedroom will have their housing benefit cut by 14 per cent.? Where tenants are under occupying by two or more bedrooms the deductions will be 25 per cent.


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

Shared Equity - What is a Golden Share?

Shared Equity - What is a Golden Share?

Organisations selling under the Shared Equity Scheme have the option to retain a "Golden Share" but what exactly is a golden share?

When a purchaser is buying a property though a shared equity scheme he only has to pay a percentage of the value of the property in cash - the remaining percentage being paid by way of a Standard Security in favour of the scheme funder (for Registered Social Landlords this is likely to be The Scottish Ministers). A Standard Security is a loan

Winter is coming ? landlord's legal responsibilities

The Scottish Government?s ?get ready for winter? campaign has now started. What are a landlord's legal responsibilities to tenants in winter?

While the current weather is causing significant flooding problems, no doubt we will soon see the return of freezing weather which leads to many housing associations and landlords facing calls from tenants about frozen pipes. Many will also be concerned about what they have to do to keep footpaths clear of snow and ice. So what are the legal obligations of a landlord in

Maintaining common areas - legal advice

Maintaining common areas - legal advice

A decision by the Court of Session serves as a timely reminder for landlords regarding their duty in respect of inspecting and maintaining common areas. Common parts are generally understood as shared areas common to all tenants such as staircases and paths, but which remain under the landlord's control and their responsibility.

In the case of Kathleen Kirkham v Link Group Ltd a tenant attempted to sue her landlord, Link Group Ltd for £92,400 after she sustained an injury by tripping on a garden footpath.

Can procurement be used to deliver the Living Wage?

Can procurement be used to deliver the Living Wage?

Using Procurement to deliver Living Wage - public bodies are increasingly under pressure to get the most out of their procurement processes, including addressing social and economic challenges.

The Scottish Living Wage Campaign aims to ensure that all employers in the public, private and voluntary sectors pay their workers no less than the Scottish Living Wage.

  • The living wage is higher than the national minimum wage,
  • It is set at a level that the Campaign considers to be the minimum income that households need to

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

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

All Change for Public Procurement Law?

All Change for Public Procurement Law?

If you are a public body subject to the regime set down in the Public Contracts (Scotland) Regulations 2012 and the Utilities Contracts (Scotland) Regulations 2012, now is your chance to have your say on how the public procurement regulations operate, and the Scottish Government's proposals for change relating to procurement law.

The Scottish Government is currently running a consultation into The Procurement Reform Bill, the aim of which is to establish a national legislative framework for sustainable public procurement that supports Scotland's economic growth

Housing Law Scotland - Legal Judgement

Housing Law Scotland - Legal Judgement

The Court of Session has probably just issued its most significant legal judgment in the field of housing law Scotland in the last twenty years.

In the case of South Lanarkshire Council v McKenna, the court had been asked to consider whether the entire regime of short Scottish secure tenancies set out under the Housing (Scotland) Act 2001 was compliant with the Human Rights legislation. They were asked to consider whether the rules on evictions on short Scottish secure tenancies were lawful and whether

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

Eviction after bankruptcy or signing a trust deed - Scotland

Eviction after bankruptcy or signing a trust deed - Scotland

So how easy is it to obtain an eviction after bankruptcy or signing a trust deed in Scotland? Over the last few years, we have received a significant number of queries from registered social landlords and private landlords regarding eviction in Scotland when a tenant is sequestrated (declares bankruptcy) or signs a trust deed.

When a person enters into bankruptcy or a trust deed, it becomes impossible to raise court proceedings against them to enforce payment of any debt owed which pre-dates the insolvency. In

Welfare Reform - no more time to cry foul

Welfare Reform - no more time to cry foul

The business of lobbying for change, and knowing when to move on, can be a sensitive one. To try to stop bad policy or law being introduced, you offer sound evidence of the damage it will cause. On welfare reform it's no surprise that bodies such as CIH and SFHA, along with the Scottish Government itself, have sought to assess the impact of changes such as the bedroom tax.

Immense efforts  some behind closed doors were made to try to help Lord Best and his

Pre-Action Requirements - eviction notices

Pre-Action Requirements - eviction notices

I have spoken at numerous seminars and training events for housing associations dealing with the recent changes to an eviction notice and rules relating to actions involving rent arrears and the compulsory pre-action requirements.

The new changes were implemented on 1 August 2012 and make significant differences to court actions involving rent arrears:

  • Sheriffs will now set a time limit on the period during which an eviction decree can be enforced. The maximum period allowable is 6 months. This change applies to all actions where

Changes to Eviction Notices

Changes to Eviction Notices

I have spoken at numerous seminars and training events for housing associations dealing with the recent changes to eviction notices of proceedings relating to actions involving rent arrears.

The new changes were implemented on 1 August and make significant differences to court actions involving rent arrears.

Firstly, new rules require sheriffs to set a time limit on the period during which an eviction decree can be enforced. The maximum period allowable is 6 months. This change applies to all actions where rent arrears are the

Procurement Contract Award Notice Requirements

Procurement Contract Award Notice Requirements

What are Procurement Contract Award Notice Requirements? Registered Social Landlords (RSLs) and other public bodies must go through a legally compliant procurement process prior to awarding a contract for works, supplies or services. This process is set down in the Public Contracts (Scotland) Regulations 2012. It is easy for public bodies to get caught up ensuring that the selection process is compliant and forget that, once this process is complete and the successful party has been identified, the method of informing interested parties of the

Mid market rent for housing associations

Mid market rent (MMR) is aimed at providing people on modest incomes with an opportunity to access rented accommodation - does mid market rent for housing associations?work? Due to the Scottish Governments consultation outlined further on, more and more housing associations are considering mid market rent tenure in addition to the current options they provide to social tenants on lower incomes.

Grants to support the provision of mid market rent units are currently only available to non-charitable subsidiaries of housing associations as legislation:-

>?prohibits housing

What are Energy Performance Certificates?

What are Energy Performance Certificates?

Owners of Scottish properties should be aware that there are new requirements for Energy Performance Certificates which will be introduced in October 2012 and January 2013. Please find below a summary of the relevant changes:

From 1st October 2012

- In addition to showing an Energy Performance Certificate to a prospective purchaser or tenant, a copy of the Energy Performance Certificate must also be given to the purchaser or incoming tenant of a property.

- All Energy Performance Certificates must contain a note of

Tenancy Agreements: helping vulnerable adults

Tenancy Agreements: helping vulnerable adults

There are many challenges facing vulnerable adults entering into tenancy agreements in Scotland.

The Adults with Incapacity Act is now well established in Scotland. It sets rules which deal with the appointment of guardians for people who lack capacity to deal with their own affairs. Many adults who are 'incapable' as defined in the Act are now in their own tenancies with significant support networks. Earlier this year I spoke at an event on this topic.

This event looked at the challenges faced by adults

Homeowners Housing Panel in Scotland

Homeowners Housing Panel in Scotland

The Property Factors (Scotland) Act 2011 will come into force on 1 October this year and alongside this the Homeowners Housing Panel.

The Act will introduce new rules and regulations for property factors in Scotland. Property factors will require to be registered and to comply with a Code of Conduct. It will also introduce a new dispute resolution procedure for complaints arising from factoring problems or allegations of failure to comply with the Code of Conduct.

With effect from 1 October, the Homeowners Housing Panel

The End of the Right to Buy

A consultation paper has been produced by the Scottish Government with a view to reform the Right to Buy.? The proposal is either to:

1.? abolish it entirely, or

2. remove the preserved Right to Buy and transfer all tenants currently with that entitlement to the modernised Right to Buy

The preferred option (whatever that may be) will be included in the next Housing (Scotland) Bill.

This consultation has already caused a bit of a stir in the political field, not least with the Conservative

Comply with Public Procurement Regulations

How do you comply with the new public procurement regulations? The Public Contracts (Scotland) Regulations 2012 came into force in May 2012, replacing the 2006 procurement regulations.

The new regulations consolidate the 2006 public procurement regulations and subsequent amending regulations into one document, as well as incorporating some important changes.

What are the main changes?

  • Time limits for raising an action: Aggrieved tenderers must now raise a court action against a public body carrying out a procurement exercise within thirty days of the date on

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

Scottish Housing Regulator, when do RSLs need consent?

Scottish Housing Regulator, when do RSLs need consent?

The Scottish Housing Regulator assumed full regulatory powers on 1 April 2012, but what does this actually mean for RSLs in Scotland? And do they need consent from the Regulator before any disposal of land?

Section 107 of the Housing (Scotland) Act 2010 now replaces Section 66. RSLs must obtain consent from the Regulator prior to any disposal of land, unless the type of disposal is specifically exempted or is covered by General Consent.

This all sounds familiar, but there is something new:-

Where a

Housing benefit changes affect landlords

Housing benefit changes affect landlords

In October 2013, the UK government plans to make changes to housing benefit. How will these housing benefit changes affect landlords in Scotland?

The Government intends to introduce a single 'universal' credit which will be paid to claimants of working age. The idea is to simplify the system for claimants, and make it easier for staff to administer. The new benefit will begin to be introduced in 2013 and will be completely phased in by 2017.

What will this mean in practice?

  • Housing benefit will

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

Housing Associations & Lenders Requirements

Are lenders becoming more difficult with RSL?s about seemingly routine property matters?? In recent times, it has seemed to me that the answer is ?yes?.

I often advise clients on the following matters:-

- the grant of leases of office premises ;

- the preparation of Deeds of Conditions for?new affordable housing developments;

- the grant of deeds of servitude and?wayleave rights to utility companies for new developments.

These are routine types of transaction, however, once the wording of the lease or other type of

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

Right to Buy ? Do you know what the ?Cost floor? is?

When selling a Right to Buy property, you need to check if the cost floor is relevant. Do you know what the cost floor is?

The cost floor is the accumulative total spent for a property during the last ten financial years (from date the application to buy was received).

This spend includes:

  • renovation costs (e.g. bathrooms, kitchens);
  • improvements (e.g. cladding works);
  • and even the cost to build the property or acquire it from another owner.

It should also be remembered when calculating the relevant

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