Glasgow: 0141 221 5562 Edinburgh: 0131 220 7660

New Law Society Guidance on Vulnerable Clients

On 1 August 2013, the Law Society of Scotland published new guidance on ?Vulnerable Clients?.? This guide looks at situations where a solicitor?s client may have impaired mental capacity or is vulnerable to being bullied into doing something. ?A second set of guidance covers the risks relating to granting a Power of Attorney.

New guidance was recommended by the Mental Welfare Commission for Scotland (MWC) in a report published in 2012. This followed an investigation into the case of Mr and Mrs D, a couple

Pensions and Divorce for Legal Professionals

Guest blog by Dr John Pollock, Pollock & Galbraith Consulting Actuaries

Little in the pensions and divorce landscape has changed in recent years but there remain pitfalls for the unwary. Two key issues which are problematic are the valuation and sharing of pensions in payment and the apportionment of Cash Equivalent Values to exclude that part of the value attributable to membership of the scheme prior to marriage.

The valuation of pensions is covered in Regulation 3 of the Divorce etc (Pensions) (Scotland) Regulations 2000.

Introduction of Employment Tribunal Fees

29 July 2013 marks a dramatic change to employment tribunals (ET) as we have known them, with the introduction of employment tribunal fees. Under these new rules, claimants will be required to pay an upfront fee when submitting their claim to the ET and a further ?hearing fee? 21 days before their hearing takes place.

From 29 July, claimants wishing to submit a claim to the ET will be required to pay??160 or ?250 to lodge a claim with?a further charge of either ?230 or

Rogue Letting Agents: Effect on Landlords

Clive Betts MP recently launched a scathing attack on ?cowboy? letting agents, accusing them of ripping off both landlords and agents. His proposals for a crackdown on the industry as a whole will only be applicable to England and Wales but the Scottish Government has made it clear that letting agent regulation is high on their agenda.? Many agents in Scotland act within the law and provide an excellent service to landlords. However as with the ?rogue? landlords, there are rogue letting agents who give

What does a Servitude mean in Scotland?

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

What does that really mean?

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

Is rent in advance legal?

Is rent in advance legal? We blogged on the outcome of the English case of Johnson and Ors against Old, which concerned a tenant who had paid six months rent in advance. The court held that this payment of rent did not fall under the definition of a deposit. The decision was based on the wording of the Tenancy Agreement as well as the intentions of the landlords and tenant.

We've received many queries from clients regarding the issue of taking rent in advance. In

Divorce settlement advice - why hiding assets doesn't pay

If you are looking for divorce settlement advice, do you want to know why hiding assets doesn't pay? The law in Scotland relating to separation and divorce settlements requires a split of all property that is 'matrimonial' in nature. Each spouse must openly and honestly disclose all assets held by them as at the date of their separation. Unfortunately, it seems that some people can't resist the temptation to lie or cheat in order to keep at least a portion of those assets to themselves.

Ensure your factoring paperwork is legal

As a factor, how can you ensure your factoring paperwork is legal?? Should you use deeds of conditions or a written statement of services?

The establishment of the Homeowner Housing Panel (HOHP), provides a forum for homeowners to challenge whether their property manager / factor has failed to carry out their factoring duties, or breached the Code of Conduct. The most important decision from the HOHP thus far can be found in a recent case brought by Mr Park against Hacking and Paterson ?(?the Factor?).

Tenant Abandonment - what is an abandoned property?

We receive a number of queries from Registered Social Landlords on tenant abandonment, asking - what is an abandoned property? - and about the procedures involved for recovering possession of abandoned properties?

Section 17 of the Housing (Scotland) Act 2001 states that a social landlord may commence proceedings to recover possession of a property if they have reasonable grounds for believing that -

  • The house is unoccupied, and
  • The tenant does not intend to occupy it as the tenant's home.

A landlord should make necessary

Age Discrimination - it applies to 'youngsters' too

Individuals in employment are protected against discrimination based on age under the Equality Act 2010. This includes harassment and victimisation and age discrimination can apply to youngsters too.

Age harassment occurs when there is unwanted conduct related to age and this conduct has the purpose, or effect, of violating the dignity of the employee, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

In the case of ?Roberts v Cash Zone (Camberley) Ltd and Another an employment tribunal found that a

Green Deal in Scotland ? is it any good?

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

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

Scottish Housing Law ? More Changes Ahead

After a lengthy period of consultation, the Housing Minister used her speech at an?SFHA conference to announce that they had now concluded the consultation and announced the following changes will be included in a forthcoming Bill.

Changes that will:

  • Replace prescriptive and outdated priority groups with a broader framework that gives landlords and their communities more local flexibility
  • Allow landlords to consider any property that a social housing applicant already owns when allocating housing
  • Introduce a qualifying period before succession to a tenancy following the

How to find a divorce lawyer

When your marriage ends, do you know how to find a divorce lawyer you trust, to advise and represent you during the divorce process?? Online search engines or recommendations from friends are an increasingly popular way to find a divorce solicitor.

To maximise this method however you should carefully consider the following before finding a divorce lawyer who?s right for you.?

  1. Experience

Are there particular areas of your divorce/separation that will benefit from particular expertise? E.g. do you need a lawyer with extensive child

Bedroom Tax - heads in the sand?

Funny how you can stomach a rotten meal if you keep telling yourself it?s not actually that bad.?As the first witnesses to the Bedroom Tax Inquiry being held by the UK Parliament?s Scottish Affairs Committee last week, the SFHA?s Mary Taylor and I couldn?t quite be sure what the Committee?s approach would be. With five Labour MPs, three Conservative and two LibDem, would views stick to party lines, and in some cases did we even know what those lines were?

?Well, it?s good that disabled

Stress in the workplace - the legal implications

Most of us have days at work where we feel under pressure because of deadlines. However there are many people whose work and personal lives are adversely affected by the stress in the workplace. Further to a recent blog on workplace stress audits, we take a brief look at the legal implications for employers in relation stress in the workplace.

Under health and safety law employers must assess and take measures to control risks from work-related stress. There is also a common law duty to

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

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 to

Stress at work - can a stress audit help?

There are at least 3 reasons why we need to take the issue of stress at work seriously and show the importance of a stress audit:

1. The Business Reason:

The 2012 CIPD Absence Management Survey identified stress as the top cause for long term absence in manual and non-manual workers.? As absence is estimated to cost employers in the region of ?600 per employee per year, this shows how stress actually costs money.? Stress also can affect the productivity of staff who remain, so

Changes to letting agent adverts

Earlier LetLaw blogged about new rules requiring Scottish landlords to include the energy rating from an Energy Performance Certificate ?on their adverts for let. As of 1st June 2013, all landlords in Scotland are going to have to expand the word count on their adverts with yet more changes to legislation on letting agent adverts.

The Scottish Government have finally introduced section 6 of the Private Rented Housing (Scotland) Act 2011. ?This requires all landlords to include their landlord registration number on letting adverts

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

Can a court intervene in financial affairs?

The Adults with Incapacity (Scotland) Act 2000 authorises a Sheriff to take steps on behalf of a person who has lost capacity to act for himself. The Sheriff must be satisfied that it is appropriate to intervene in the Adult?s ?financial affairs in terms of the principals of the Act. So when can a court intervene in financial affairs?

Our recent case of JM and Mrs JM, is described by the Sheriff as a ?proper? example of this.

In 1997, a couple obtained a

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

How can Employers Avoid a Constructive Dismissal Claim

Constructive dismissal has become ?sexy? following the highly publicised tribunal decision in the case of Stella English v Amshold Group Limited. Miss English (2010 winner of The Apprentice), brought a claim of constructive dismissal claim against her employer, Lord Sugar?s company, stating that she had no choice but to resign as she had no real role at the company.

Following the unanimous dismissal of Miss English?s claim, Lord Sugar praised the tribunal and saw it as a victory against the so-called ?claims culture?.

So

Assisted Suicide - an end to postcode lotteries?

End of life decisions may raise questions about assisted suicide. ?The European Court of Human Rights has held that Switzerland is in breach of the European Convention on Human Rights, as it does not provide sufficient guidelines clarifying when a patient is entitled to ask for, and receive, a lethal prescription.

Doctors refused to provide a lethal prescription to a lady suffering a serious but not immediately life-threatening condition.? The court accepted that it is for each state to address the ?difficulties in finding the

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!!).

Retirement ? essential steps for a smooth transition

With?the announcement that football management royalty, Sir Alex Ferguson, will be hanging up his gaffer?s hat and settling down to a life of retired bliss, my thoughts turned to the employment aspects of retirement and how an organisation can support an employee during this period.

Unless it can be objectively justified by your organisation, it is no longer permissible to dismiss someone on the grounds of retirement. Like Sir Alex, older workers can voluntarily retire at a time they choose and draw any occupational pension

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

Employee shareholder legislation ? third time lucky?

Following three re-drafts by the Government, a consensus was finally reached on employee shareholder legislation. ?In April 2013,?the House of Lords and the Government agreed on wording of the Growth and Infrastructure Bill which introduced a new employment status ? employee shareholder.

First proposed by the Chancellor George Osborne at the Conservative Party Conference last October, the original proposals saw a new employment status of employee shareholder that would see employees who were employed under this contract between ?2,000 and ?50,000 worth of shares, in

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 &

Do employers need a social media policy?

Should employers have a?social media policy? The potential employment risks around social media was highlighted this month after the resignation of the first Youth Police and Crime Commissioner, Paris Brown, following racist tweets on her Twitter account. Although the tweets were sent before she applied for and accepted the job, they were there to be scrutinised by her future employers and the media.

It is taken for granted that everyone now has some sort of online presence ? be it for business, pleasure or both.

Divorce in Scotland - a 2012 statistical round up

According to Scottish Government divorce statistics in 2012, a total of 13,679 family cases were initiated in the civil courts during 2011/12, a decrease of 6% on 2010/11.? Divorce actions accounted for 78% of the total figure, with actions concerning parental rights and responsibilities accounting for 17%.

A total number of divorces granted during 2011/12 was 9,453, a decrease of 2% compared to the previous year.

What was the most common procedure?

Of those 9,453 divorces granted, 62% used the Simplified Procedure ("quickie divorce") and

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

Dealing with Antisocial Tenants in Scotland

One of the many differences between tenancy law in England and Scotland was highlighted online, namely the consequences of a landlord?s failure to address the behaviour of antisocial tenants. In England, the landlord has no specific legal obligations to deal with antisocial tenants however Scotland is an entirely different story.

The Antisocial Behaviour etc (Scotland) Act places a duty on a private landlord to take action to deal with antisocial tenants. Local authorities who receive complaints of antisocial behaviour in a tenanted property will normally

Legal separation in Scotland: 5 things you need to know

Legal separation in Scotland can be a difficult step to take but it is important to prepare yourself for what happens next. Here are 5 things you need to know.

1. How do we separate?

Couples usually separate when someone moves out of the matrimonial home. A solicitor can provide clarity on this by producing a separation agreement for spouses, civil partners or couples who have been cohabiting.

2. Who needs to know we have separated?

After separating you may have a responsibility to inform

Disability Discrimination - A Weighty Issue

We are often asked by employers to advise on disability discrimination.

Equality Act 2010 states 'a person has a disability if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities'. Long term means the impairment has lasted, or is likely to last:

  • at least 12 months
  • or for the rest of a person's life
  • or, if it is in remission, is likely to?recur

The guidance on

Penalty Clauses in Tenancy Agreements: Are They Legal?

Putting penalty clauses in tenancy agreements is fairly routine procedure within the private rented sector. However, whilst the practice may be widespread in Scotland, the issue of whether or not a penalty clause is legitimate can be a tricky matter.

Penalty clauses provide that where a tenant is in breach of their tenancy obligations, they will be liable to pay certain charges in addition to their rent. Charges typically imposed by landlords and letting agents range from interest on overdue rent or charging for the

Internal Disciplinary Procedures - Getting It Right

The case of Christou(C) and Ward(W) v Haringey Council focused on internal disciplinary procedures and involved an appeal to the Court of Appeal by two?social workers. They were found to be at fault in the handling of the Baby P case.

C was a team leader responsible for a number of social workers, including W. ??W had specific responsibility for Baby P who was on the child protection register. ??They had been disciplined under the Council's simplified internal disciplinary procedures and given a written warning.?

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

Shared Parental Leave Scheme

In February 2013, the Children and Families Bill was introduced in the House of Commons. It implements, among other things, the family-friendly proposals contained in the government's Consultation on Modern Workplaces. The Bill will introduce a shared parental leave scheme.

Under this system, an eligible mother will continue to receive 52 weeks' maternity leave as a day one employment right. Following the completion of the two weeks of compulsory maternity leave post birth, the mother can choose to end her leave early and share the

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

Commercial Contract: ensure accurate clauses

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

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

Patersons proceeded with this transaction on the basis that Biffa

Does your organisation pass the charity test?

The Office of the Scottish Charity Regulator (OSCR) has the power to apply the charity test as defined in the Charities and Trustee Investment (Scotland) Act 2005 to review the charitable status of charities listed on the register. Does your organisation pass the charity test?

The five functions of OSCR as specified in law are to:

    1. decide which bodies are?charities
    2. keep an accurate Register?of charities
    3. encourage, monitor and?facilitate compliance
    4. identify and investigate apparent misconduct
    5. inform and advise Scottish?Ministers

To maintain charitable status, charities must continue

So you want to be a company director ?.

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

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

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

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

Can I change the locks on my spouse?

Can I change the locks on my spouse?

As family lawyers we are regularly asked the question: Can I change the locks on my spouse? This is probably one of the most common questions I am asked when dealing with a client's separation or divorce.

The short answer is no. Regardless of whose name the property is in, each spouse has the right to occupy the property. These rights are known in Scots Law as 'occupancy rights'.

The only way to legally exclude your spouse from the family home is by

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

Landlord legal advice - dealing with joint tenants

Many landlords will have joint tenants, particularly in student flats. However recent legislation on tenancy deposit schemes and tenant information packs has highlighted some issues facing landlords with joint tenants in Scotland.

Tenancy Deposit Scheme

- The tenancy?deposit scheme regulations say nothing about joint tenants

- It has been left?up to each scheme to make the rules as to how they will deal with deposits for joint tenancies

- Each scheme requires?landlords to identify a lead tenant when submitting a deposit. This will require to

My tenant has abandoned my property & has sublet without consent!

We are regularly asked for advice by landlords in Scotland on how to repossess a property that a tenant has abandoned. However, recently we were presented with a situation that was slightly more problematic where the tenant had abandoned the property and then sublet without consent!

There is no legal route to repossess a property where a tenant has abandoned, other than by seeking a court order. However, landlords generally wish to repossess sooner rather than later and may want to carry out an assessment

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