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Tenancy Deposit Scheme ? court decisions

Two tenancy deposit scheme decisions issued by Edinburgh Sheriff Court have given some insight on how the courts are going to treat the sanctions available under the tenancy deposit scheme regulations in Scotland.

In Fraser and Pease v Meehan, the landlord had failed to lodge the deposit with the scheme and provide the prescribed information. He claimed he wasn?t aware of the scheme and the duties that came with it, as he lived in Australia.

The Sheriff,

  • reiterated the importance of the regulations in ensuring

Tenancy Deposit Scheme Legislation

Will English Tenancy Deposit Scheme Legislation impact on Scotland??A few months ago, the LetLaw team looked at the English case of Surpere v Nice where a landlord had failed to lodge the deposit with a tenancy deposit scheme.

The English courts have again looked at the tenancy deposit legislation and the impact on landlords if they fail to comply with their duties. As a health warning, it should be noted that the decisions of the courts in England are not binding on the Scottish courts.

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.

The

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

Short Assured Tenancy Agreement in Scotland

A Short Assured Tenancy Agreement in Scotland is?the most commonly used type of tenancy in the private rented sector. The following outlines the basics of a short assured tenancy agreement for both landlords and tenants in Scotland.

What is a Short Assured Tenancy (SAT)?

A special type of ?Assured Tenancy? which lasts for a minimum period of 6 months.

Why use a ?Short Assured Tenancy Agreement in Scotland?

In Scotland, landlords often favour SATs because they can recover possession of the property at the end

Giving to charity in your Will

Do you know about Wills, inheritance tax planning and how this affects charity donations? Giving to charity is something which most people will become involved in at some point during their lifetime, whether that be through fundraising efforts, occasional donations or regular standing orders. However, did you know that you can also provide for your favourite charities on your death through your Will in Scotland? Have you thought about giving to charity in your will?

How can I provide for charities on death?

The simple

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

Tenancy Deposit Scheme in Scotland

All three of the tenancy deposit schemes in Scotland approved by the Scottish Government are now operational! The many different aspects of the tenancy deposit scheme in Scotland?have been covered on our blog before however with the official operational date of 2 July 2012 having passed, it would be a good time to remind landlords of the timescales involved to ensure they are complying with their duties. Rest assured, there is no need to panic just yet!

Landlords in Scotland will need to lodge a

Community Empowerment and Renewal Bill Consultation

The government has opened a consultation on their proposed Community Empowerment and Renewal Bill. It is an open consultation and the Bill will be drafted in light of the responses received.

Current Law

Currently a rural community with a population of less than 10,000 can register an interest in a piece of land and be given the first opportunity to buy it if it comes up for sale; as long as the community is able to demonstrate:-

  • community support for the purchase; and
  • positive economic,

When is a Power of Attorney Effective in Scotland?

Why are individuals in Scotland reluctant to put a Power of Attorney in place? The reality is that many are concerned about losing control over their finances and assets. In fact, most people put a Power of Attorney in place as a rainy day document and their Attorney does not have authority to act straight away. So when is a power of attorney effective in Scotland?

I don't want my Attorney to act immediately - what do I do?

Most people grant a Power of

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

What is Self-Directed Support in Scotland?

The Scottish Government recently published its Social Care (Self-directed Support) (Scotland) Bill, which aims to make self-directed support in Scotland a mainstream choice for those receiving care (click here for more details) in Scotland. The Government has pledged almost ?40 million over the next three years to support the rollout of self-directed support throughout Scotland.

What is self-directed support?

Self-directed support is designed to give those who receive care (supported persons) more power to direct their own care and support, to make more informed decisions

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

What is a Tenant Information Pack?

Are you aware that the Private Rented Housing (Scotland) Act 2011 is proposing that all landlords?will have to provide a tenant information pack in future?

The aim of this Act is to support responsible landlords and address more effectively the problems caused by landlords who act unlawfully, by strengthening the regulation of the private rented sector. One of the proposals within this Act was the introduction of a ?Tenant Information Pack? for all private sector tenants.

The Government have now indicated that they wish to

Changes to the HMO licence in Scotland

The Private Rented Housing Act 2011 in Scotland will introduce changes (including changes to the HMO licence) which will affect all landlords in the private rented sector, with its various parts coming into force in stages. The following provisions will amend the existing Houses in Multiple Occupation (HMO) licence?regime and are due to come into force on 31 January 2012.

Firstly, a local authority will have the power to refuse to consider an application for an HMO licence, where it considers that occupation of the

Power of Attorney in Scotland: Top Questions

Power of Attorney in Scotland: Top Questions

At the start of a New Year, you may be turning your thoughts to putting your affairs in order. As part of this, you should consider granting a power of attorney in Scotland. Read on for our top 5 questions and answers on Powers of Attorney.

1. What is a Power of Attorney?

  • A written legal document giving someone else authority to act on your behalf
  • It ensures your financial affairs and personal welfare can be dealt with/protected if you are unable to act yourself,

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

Landlord?s Duties When Evicting a Tenant

Many landlords are unaware of their duties under the Homelessness (Scotland) Act 2003 when raising court proceedings against a tenant for eviction. What are a landlord's duties when evicting a tenant?

Section 11 of the Act states that;

a landlord when raising proceedings for repossession must give notice to the local authority in whose area the property is situated. Said notice should be given when the court action is raised against the tenant.

It is not sufficient for the landlord to simply write to the

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

Will the local authority re-house my tenant?

We often hear from frustrated landlords who despite serving notices on their tenant, are advised that the local authority will not re-house them, forcing the landlord to raise an eviction action to repossess their property. For landlords who have been through the legal process, an eviction action can be both lengthy and costly. So will the local authority re-house my tenant following eviction?

Are Councils obliged to rehouse a tenant?

The Council must assess homeless applicants to decide whether or not they are entitled to

Inheritance Tax Planning Tips for the Tax Year End

Here are Inheritance Tax planning tips for the tax year end which should be implemented before the end of the tax year otherwise they risk being lost altogether.

Why consider Inheritance Tax planning?

Tax planning provides an opportunity to pass assets to the next generation in the most tax efficient manner.

Each individual has an Inheritance Tax free allowance known as the Nil Rate Band ? subject to some exceptions. Any assets held by you in excess of the Nil Rate Band are taxed at

Procurement: When can I exclude a bidder?

So when can I exclude a bidder??According to regulation 23 of the procurement regulations, a public body (including an RSL) carrying out a procurement exercise shall treat as ineligible and disqualify a bidder, if it has actual knowledge that the bidder, its directors (if the bidder is a company) or any other person with powers of representation, decision or control of the bidder has been convicted of certain offences, including:

  • Conspiracy
  • Corruption
  • Bribery
  • Incitement to commit a crime
  • Fraud
  • Taxation offences
  • Money laundering
  • Attempting to

The Benefits of Child Contact Centres

In most cases when parents separate it is in the best interests of a child to remain in contact with both of them. Sometimes this can be very difficult for the parents themselves to arrange. Child contact centres provide a key role in helping children affected by family breakdown to maintain a relationship with the parent who no longer lives with them in a safe, neutral environment, away from high conflict situations.

What types of contact are there?

- In centre supported contact a child

Launch of Scottish Tenancy Deposit Scheme

At the inaugural LetLaw Legal Update seminar in Glasgow, the hot topic was the launch of the Scottish tenancy deposit scheme and how this will work in practice.

Whilst there was plenty of discussion surrounding ways of avoiding the scheme (!), the primary concern of both landlords and letting agents appeared to be what would happen if a scheme was to fail.

The Tenancy Deposit Scheme Regulations 2011 were issued by the Scottish Government earlier this year.? Under those Regulations, any organisation who applies to

How to Recover Factoring & Common Maintenance Debts

So just how can you recover factoring & common maintenance debts from owner-occupiers? A Notice of Potential Liability for Costs can assist housing associations and factors to recover money due by owner-occupiers for factoring and common maintenance debts. It was introduced in 2004 and 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/likelihood of paying their share of the

Legal Essentials for Gap Year Students

Planning a gap year? You will no doubt have spent time deciding on your itinerary and making sure you have all the necessary visas, but have you given any thought to ensuring you know the legal essentials for gap year students?

Most young people will not have had any reason to visit a solicitor before, but if you are planning your dream gap year you should add a trip to the family lawyer to your 'to do' list before setting off on your travels!

What

HMO Licence - How not to do it

New rules relating to licensing of houses in multiple occupation (HMO) came into force August 2011. Landlords should be aware of these rules, which require a local authority HMO licence when a property is shared by three or more unrelated individuals.

There are some exceptions but a recent court case has shown that landlords should not try to avoid compliance with the rules by attempting to find inventive ways to meet some of the exemptions. More details can be found here.

The case involved

Do I Need a Power of Attorney?

It is a common misconception that Powers of Attorney are only for the elderly. However, accidents or illness can happen to anyone at any time and it is sensible to give thought to putting a Power of Attorney in place now, as a safety net for the future. Ask yourself the question - do I need a Power of Attorney?

What is a Power of Attorney?
A Power of Attorney is a legal document giving someone else authority to act on your behalf should you

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

Rent Arrears Scotland: Early Intervention by Landlords

A regular question at our landlord training sessions relates to the idea of early intervention when a tenant accrues rent arrears in Scotland. ?Landlords should always contact the tenant in these situations to obtain an explanation for the non-payment of the rent. ??Early contact can often prevent the situation from escalating outwith the tenant?s control.

Many landlords worry they will be accused of harassment if they make attempts to contact the tenant. ??In one recent example, after the tenant had given notice to quit, the

Does your Will include a Legacy to Charity?

Does your Will include a Legacy to Charity? ?If you are thinking of doing this there are some facts you may want to consider.?

  • Around 80% of us support charities during our lifetime.
  • 35% us want to leave the bulk of our estate to loved ones but like the idea of giving something back by way of donation on death to charities that we consider worthy of support.
  • Surveys indicate less than 10% of the population actually leave a legacy

Making provision for Charities could

Short Assured Tenancy - are pre-tenancy charges legal?

The question of whether pre-tenancy charges imposed on tenants by landlords/agents under a short assured tenancy are legal is a long-running debate within the private rented sector.

Many landlords/agents charge a variety of fees to a tenant prior to sign-up, including? ?administration charge?, ?holding deposit? and ?referencing fee?.? We?ve even heard of agents charging fees to prospective tenants for cleaning the property after they have left, when they?ve not even moved in yet!

Section 82 of the 1984 Act states that ?any person who, as

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

How to evict a tenant lawfully!

Nearly 50 years ago, Harold Wilson?s Labour government introduced the first law to make unlawful tenant evictions a criminal offence. This law was designed to deal with the ?incentives? which encouraged landlords to remove tenants. So how do you evict a tenant lawfully?

At that time:

  • Properties were easier to sell and would sell at a greater price if they were vacant rather than with a sitting tenant.
  • Removing tenants who had the benefit of rental protection allowed landlords to maximise their income.? One London

Protecting Heirs: Disabled Person's Trust

Providing for a disabled loved one following your death is not always straightforward ? you want them to have enough money to be comfortable but don?t want to affect their entitlement to state benefits, many of which are means tested. One of the most effective ways of providing for a disabled beneficiary is using a disabled person's trust within your Will. As well as providing protection for the beneficiary, if set up correctly, the trust can also avoid certain tax charges normally associated with trusts.

How long does an eviction action actually take in Scotland?

Tribunal Repossession Application Timescales

The answer to "how long does an eviction action actually take in Scotland?" is much along the same lines as "how long is a piece of string?"

Obtaining an Order for Possession in Scotland is not a particularly quick process. If your application is straightforward and is not defended by your tenant, the following can be used as a general guide:-

Which route of repossession are you taking?

If the tenancy is a short assured tenancy:

  • Compulsory Repossession: this relies on

Choosing Trustees & Executors in your Will

How do you go about choosing trustees & executors?in your Will?

The person or people appointed by you to administer your estate when you die are required to fulfil their role of ingathering your estate by:

??paying off debts and expenses (from your funds, not theirs!)
??distributing the estate in accordance with your Will or, if no Will, in terms of the laws of intestate succession.

Without a Will the people appointed by law may be people you do not like, do not trust and

Should Scotland scrap home reports?

Are Home Reports here to stay or should Scotland scrap Home Reports?

There are grumblings amongst MSPs. The Scottish Tories want them scrapped. David McLetchie MSP, Scottish Conservative Chief Whip, said: "In the best of times, Home Reports were an expensive luxury. However, nowadays figures showing that the housing market is struggling to return to where it was a couple of years ago they are madness?

Why have Home Reports?

The single survey for the Home Report was intended to be:

  • an assessment by the

Dying Without a Will in Scotland

Dying Without a Will in Scotland

Will law reform change the impact of dying without a Will in Scotland? Society and family structures have changed considerably since the current law on succession came into force in 1964 and there is widespread support for the law to be updated to reflect this.

Current Rules
Where a person dies without a Will (intestate) his spouse/civil partner has prior rights to his estate:-

  • Deceased's share in the dwellinghouse occupied by him and the spouse/civil partner up to £473,000;
  • House contents up to £29,000;
  • Cash

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