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

What is a Living Will?

We are often asked ? what is a Living Will?

It is:

• a statement expressing your views about how you would like to be treated in the future
• a Will of sorts but applies whilst you are alive not after your death
• essentially an expression of your wishes set out in advance of illness at a time when you have the mental capacity to understand the issues involved and provide clear directions
• used to outline circumstances in which you

Here?s a sentence we don?t often get to say: it?s getting hot! The coming days are set to see record temperatures across the UK, giving us the feeling of an actual summer for the first time in a long time. While we?ve had to contend with previous weather issues (the Beast from the East to name but one), being too hot is not often one of them. Here we look at the things that employers should be thinking about while we?re enjoying the current hot

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.

Separation often results in one parent being responsible for the majority of the everyday care of the children. A common result of this is that they also end up being responsible for the everyday costs. Child maintenance payments are financial support paid by the parent who does not have day-to-day care of the children. It can be paid to the other parent, the child or a grandparent or other guardian.

Child support payments are usually agreed between the parents or through the Child Maintenance Service

With all the gorgeous weather we?ve been having, the start of the World Cup 2018 seems to have crept up on us (or is that just me?). The World Cup takes place in Russia between Thursday 14^th June and Sunday 15^th July. Football match times in the UK will vary between 11am and 8pm.

The World Cup is a big sporting event for many employees who may want to follow their favourite football team (sadly this does not include Scotland this time). Some

?I think you should set up a trust; this will protect your assets.? Sounds great! But what is a trust? What can you put in to a trust? And will there be any charges associated with the trust?

What is a Trust?

A trust is when one person is given property to hold for the benefit of another. Dependent upon the size and complexity of your estate, particularly if your assets are over the threshold for Inheritance Tax (currently ?325,000), you may wish to consider

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

A limited liability company is a popular choice when considering business models. It has relatively small costs to set up and get going. However, the essential requirements can appear daunting.

This guide outlines the key elements below and gives sources that are available for support.

Articles of Association

These are the building blocks of your company. They state how important functions will operate e.g. Directors? powers. Model Articles are available on the Government?s website that cover all of the basic functions. However, they may not

We are often asked, can collaborative law help me? The collaborative law process offers separating couples a non-confrontational way of agreeing the legal and practical arrangements for their separation and divorce. By reaching agreement in a collaborative way, couples are able to come to a respectable arrangement together through supported discussions.

At its simplest, the collaborative process is all about reaching solutions together. Sometimes talking things through can seem the hardest challenge of all. When relationships break down, hurt, bitterness and anger are often the

You might have heard somebody mention mediation before but what is mediation? Mediation is a form of alternative dispute resolution that involves two (or more) parties and a mediator. Mediation provides parties with the opportunity to have an open and honest discussion about a range of family law issues in a neutral environment. Everything that is said during a mediation session is confidential and the parties have control over any decisions that are made during the meeting.

What sort of issues can be dealt with

Termination payments are often made to employees when the termination of their employment is governed by a settlement agreement.?New rules affecting the taxation of termination payments came into effect on 6 April 2018.

What are the changes?

There has been a change to the taxation of ?payments in lieu of notice? (PILONs), which are commonly part of any overall settlement.

Where employment terminates on or after 6 April 2018, there will now be no distinction between contractual and non-contractual PILONs. Both will now be subject

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.

What is

We previously blogged about what options are available to landlords where one joint tenant wants to leave a rented property and the other(s) wish to remain. That blog related to assured and short assured tenancies under the Housing (Scotland) Act 1988.

Landlords will be aware that under the Private Housing (Tenancies)(Scotland) Act 2016, all new tenancies created after 1^st December 2017 will be Private Residential Tenancies (PRTs). The position regarding ending a joint tenancy by either landlords or tenants is different under the 2016

Each year, we see a number of proposals which have an impact for employees and employers alike, and this year proves to be no different. We thought that it would useful to give you an employment law update.

While some of the changes are those which we see every year, there are some which will have a greater impact on organisations.

Gender Pay Gap Reporting

30 March 2018 was the date on which specified public authorities, including government departments, the armed forces, local authorities, the

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

An English Local Authority has recently been criticised for refusing to pay an elderly woman's residential care fees when it learned that she made regular cash gifts to her family after moving into a care home. They believed this to be a deliberate deprivation of capital.

What is a deprivation of capital?

The Local Authority requires a financial assessment be completed for anyone moving to residential accommodation. It follows the Charging for Residential Accommodation Guidelines for Local Authorities. The guidelines state what can be considered

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.

Drugs Conviction

The Defender

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

Generally, a contract only gives rights and obligations to the people that are a party to it. However, there are circumstances where contracts can create third party rights. In Scotland, these ?third party rights? were often criticised as the law around them was unclear and inflexible.

To change this the?Contract (Third Party Rights) (Scotland) Act 2017 (the Act) came into force on 26 February 2018.

The Act makes a number of changes to how third party rights in Scotland work. This blog gives a

What is an Action Plan?

The Assessment of the Energy Performance of Non-Domestic Buildings (Scotland) Regulations 2016 created a somewhat advanced form of an Energy Performance Certificate, known as both a section 63 Assessment but more commonly known as an Action Plan.

When do you need an Action Plan?

Action Plans apply to non-domestic buildings or buildings with a floor area over 1000 square metres, which do not comply with the 2002 Scottish Building Standards. The trigger for requiring an Action Plan is upon the

Land and Buildings Transaction Tax (LBTT)?replaced Stamp Duty Land Tax on 1^st April 2015. As well as being the duty payable on the price or consideration for the purchase of residential and commercial land and properties in Scotland, its introduction affected taxation on the grant of non residential leases.

In circumstances where a return in relation to a lease was made to Revenue Scotland in terms of the LBTT regime, i.e. after 1^st April 2015, tenants under those leases require to remember to

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

Is the digital era making our lives much simpler and easier? Well, not necessarily when it comes to completing your Will. ?When we think about making our Will, very few of us realise that digital assets can be included.

With the emergence of Bitcoin for instance, it may be that this type of cryptocurrency will become more popular over time. Also, with more and more online banking and share portfolios being held online, it is important to give adequate information to? your Executors to enable

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

Often clients tell us that they want to get divorced quickly so that they can move on with their lives. For some divorcing couples, they will be able to use the simplified divorce procedure. But what is this? The simplified divorce procedure involves completing the necessary form and satisfying the sheriff court that you and your spouse meet the criteria for a simplified divorce.

The criteria for a simplified divorce is as follows: -

• You are applying for divorce because of the irretrievable breakdown of

Life can be taxing at times, no more so than on death. So it is important to consider the potential inheritance tax implications which can arise upon your death.

When you die, Inheritance Tax may be payable on your estate. Each person has a Nil Rate Band of ?325,000, meaning that any assets up to this value are charged at 0% inheritance tax. Anything above this value has a charge to Inheritance Tax of 40% unless exempt.

Married couples and registered civil partners, however, are

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

Most people know that there are a number of differences between the Law of England (and Wales) in comparison to the Law of Scotland. We are often asked by people who have made a Will in England and now live in Scotland; "is my English Will still valid in Scotland?" The simple answer is generally "yes". There is no reason why a Will which is valid in England will not also be valid in Scotland. However, on your death, it may need validated by a

5 Tips for a First Time Buyer

Buying your first home is an emotional experience ? it can be joyous, stressful and frustrating, amongst other things. Our goal is to limit, if not eliminate, the negative emotions and make the experience something you WANT to remember. Here are a few, sometimes overlooked, tips for first time home buyers.

1. YOU are the buyer! Buying a home is a big decision and we often turn to people we trust to give us advice and input. During this

Do you have a Will?

Do you know the importance of having a Will?

If not, why not? Do the reasons include:

• not knowing what a Will does
• the possible cost
• that you don't have time
• that you don't think you need one
• that you think you're too young!

Let's address these possible concerns:

Don't know what a Will actually does

A Will is a document which takes effect on your death , identifies who is to have responsibility for administering your estate (the executor

?I?m perfectly capable?. ?I can manage, don?t worry?. I don?t need a Power of Attorney.

None of us likes to think that there will come a time when we cannot manage our own affairs. Despite reminders from our families, it is not always easy to admit that we may require a little help.

Contrary to popular belief, should you lose capacity for any reason and be unable to attend to your own affairs, your family cannot simply step in and take control for you. There

The General Data Protection Regulation (GDPR) will come into force on 25^th 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

It's ok, don't worry. My wife will get everything.

These words are uttered more than any other when someone dies without a Will. It is a common misconception that should you die without having made a Will that your spouse will receive your entire estate. Indeed, it doesn't matter if you have only been married for one year, ten years or thirty years, your spouse does not automatically inherit your whole estate. Surprisingly, your spouse is not the only person who can inherit your estate

The Private Housing (Tenancies) (Scotland) Act 2016 came into force on 1^st December 2017. It introduced the new Private Residential Tenancy which replaced Assured and Short Assured Tenancies in Scotland from that date. Existing Assured and Short Assured tenancies will continue unaffected.

The new Private Residential Tenancy (PRT) offers significant security of tenure to tenants. The no-fault eviction basis available under the Short Assured Tenancy regime will not apply. PRTs will not have an end date and cannot be terminated at the landlord's instigation

With one in four of us likely to need care in our old age, the issue of paying for care home fees has never been more common. Exploring options to reduce capital/savings/assets has become popular, including placing property into trust. Is this an attractive way of avoiding care fees?

For example, take a lady who is 78who has mobility issues and is struggling with day to day living. After much deliberation, it is decided that a care home is the most sensible move for her.

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 2^nd January 1989 and have not moved home voluntarily since 30^th 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) ,

Some years ago the House of Lords decided in a case Moncrieff -v- Jamieson that parking could be implied as a right running alongside a servitude right of way. Given this acceptance that parking could be an adjunct to a servitude right of way that seemed to lead on to the possibility that parking could be deemed a servitude in its own right. To legal academics this was the logical conclusion!

The majority of their Lordships when considering the facts in the Moncrieff case thought

In Scotland, if you have raised a court action against another person for recovery of a sum of money then you are known as the ?Pursuer? and the person you have taken to court becomes known as the ?Defender?.? What does the re-introduction of?Pursuers? offers in Scotland mean for settlements?

Defenders in court actions have been able to take advantage of formal offers of settlement for some time, offers known as ?tenders?. However, as of 3^rd April 2017, Pursuers are able to make formal

Following the abolition of employment tribunal fees, many questions remain.? We will aim to clarify the situation as it currently stands.

When were tribunal fees abolished?

They were abolished on 26 July 2017, following a ruling by the Supreme Court that they were unlawful.

I have already paid tribunal fees - can I reclaim them?

Yes.

The government is putting in place a system to reimburse those who have had to pay employment tribunal fees in relation to their claim.? The details of the

Buying from a builder is appealing to home buyers for a number of reasons:

• Many people?like the fact that they will be the first to live in the property
• Repairs and redecoration costs should be minimal?for the first few years
• Buyers can often?select fixtures and fittings to tailor the property finish to their taste
• New properties usually come with guarantees.
• Homeowners can enjoy lower running costs?and energy bills by living in a more modern, energy efficient home
• Incentives may be available (e.g. payment towards land

In Scotland having Japanese knotweed growing on land belonging to you is not of itself against the law.? That said, there is now legislation regarding the spread of Japanese knotweed and requirements on a heritable proprietor not to allow this non-native species to spread.? Penalties for ignoring such legislation are significant with fines running into thousands of pounds and with the ultimate sanction of imprisonment.

When considering the sanctions and penalties it is important to note where Japanese knotweed is growing.? There is separate legislation

As reported by BBC News?, Audit Scotland issued a new report? on the implementation of Self Directed Support in Scotland.

Self Directed Support (SDS) has been available since 2014.? It was introduced to offer people more choice on how their support is delivered and managed.

There are four options available:

1. You receive the money to spend on support how you choose;
2. You tell the council how to spend the money;
3. You let the council decide how to spend the money; or
4. A mix

Are Velux windows and skylights part of a roof? We explore the interesting case of Waelde -v- Ulloa and ask the question - what is part of a roof?

The Background

A single dwellinghouse in Edinburgh had been converted into three flats - top, middle and bottom.? The skylight and velux windows which had later been introduced served only the top floor flat.

• The top floor owner carried out roof repairs and sought to claim a share of the maintenance costs from his downstairs neighbours.

A retired senior judge in England issued a warning yesterday over the risks of granting a power of attorney via an article on the BBC news website and on BBC Radio 2.

Our advice to anyone holding a Power of Attorney in Scotland, or considering granting one ?. Don?t panic!

The Scottish system of granting a Power of Attorney differs from England.

Most Powers of Attorney in Scotland are drafted by solicitors following specific instructions from their client, offering an additional level of protection.?

An?article from The Telegraph details plans to revolutionise the ?outdated? system for having a Will made and suggests allowing new ways to provide Will instructions for your death such as notes, voicemail's, emails and texts.

The current system

A valid Will is signed on all pages by the testator (the person who?s Will it is) before an adult independent witness who signs on the last page only. Changes to a Will can be made by either doing a new will or something called a

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

There is currently no formal abandonment procedure for the Private Rented Sector under the Housing (Scotland) Act 1988 (1988 Act).

Despite the property appearing abandoned, generally private landlords have no legal right to recover the property in absence of a court order.

The Private Rented Tenancies (Scotland) Act 2016 (2016 Act) introduced a new type of tenancy called the Private Residential Tenancy (PRT). One of the benefits of the new tenancy is that abandonment by the tenant is a basis upon which the landlord can

Since 2012, landlords in Scotland have been required to lodge security deposits in one of three approved tenancy deposit schemes. Landlords should by now be well aware of their obligations to lodge deposits within 30 working days and to provide tenants with specific information relating to the tenancy and the deposit. However, our LetLaw team regularly receive queries in relation to the amount of deposit which can legally be requested from tenants. Here are some of our most frequently asked questions about tenancy deposits Scotland.