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Making a Will for a vulnerable adult

Making a Will for a vulnerable adult

In a major appeal decision Sheriff Principal Kerr, North Strathclyde, has confirmed that Wills may be made for vulnerable adults with incapacity using powers under Part 6 of the Adults with Incapacity (Scotland) Act 2000. Unlike the procedure for making "statutory Wills" in England, there is no explicit procedure for doing the same in Scotland. Are you thinking about making a Will for a vulnerable adult?

Following the passing of the 2000 Act, with a limited number of express exceptions, an intervention order could be

Antisocial Behaviour Orders can help RSLs

Antisocial Behaviour Orders can help RSLs

In Scotland, if a Registered Social Landlord (RSL) have problematic tenants who regularly behave in an antisocial manner, they can make an application to court for Antisocial Behaviour Orders (ASBO) to be granted against tenants for the protection of neighbouring residents.

An ASBO is an order granted by the court and will contain specific conditions to stop a person from behaving in a particular manner or from carrying out specific actions. For example an ASBO may prohibit a person playing loud music at certain times

How can social landlords allocate housing from 2014

How can social landlords allocate housing from 2014

The recently published Housing (Scotland) Bill is proposing significant changes to how social landlords can allocate housing.

Changes to the allocation rules are proposed to the following:

Reasonable preference

The Bill proposes a shorter applicant category list who must be given reasonable preference. Beyond these categories RSLs will have greater freedom to create groups they wish to house. Proposed categories are:

  • homeless persons who have 'unmet housing needs'
  • persons living in 'unsatisfactory housing conditions' who also have 'unmet housing needs'
  • tenants who are under occupying

Consumer credit regulation for housing associations

Consumer credit regulation for housing associations

In April 2014 regulation of consumer credit will be transferred from the Office of Fair Trading (OFT) to the Financial Conduct Authority (FCA) to create a "tougher and more pro-active" regulatory regime. The FCA will be granted greater powers to investigate and scrutinise, and will have a wider range of sanctions and penalties to impose. It is important for Registered Social Landlords (RSLs) to be aware of the changes in consumer credit regulation for housing associations'.

What do you need to know?

Many housing

What is a Scottish Charitable Trust?

What is a Scottish Charitable Trust?

A Trust is an unincorporated entity set up to hold property to be used solely for charitable purposes. So what is a Scottish charitable trust?

The main characteristics of a Scottish charitable trust are as follows:

1.  It is simple to set up.

2.  The Trust Deed (which is the governing document of the Trust) will identify the individuals who are the trustees responsible for the control and management of the Trust and its assets. The powers and duties of the Trust are set out

The Scottish Housing Bill - what will this mean for RSLs?

The Scottish Housing Bill - what will this mean for RSLs?

On 21 November 2013, a new Scottish Housing Bill was introduced in the Scottish Parliament - what will this mean for RSLs?

It is a lengthy document extending to 86 sections. It is expected that this Bill will become law at some point in 2014.

If passed, the Bill will create significant changes in four main areas of housing law and practice.

1 - Right to Buy

  • Proposals to abolish the right to buy entirely. Abolition will take place three years after the Bill is

How to avoid employment law issues at Christmas parties

How to avoid employment law issues at Christmas parties

With the countdown to Christmas already started, it might be an idea to look at how to avoid the potential employment law issues at Christmas parties. Without wanting to be viewed as the 'Scrooge' of the party season, we think that it is helpful to set out some useful tips before entering into the party season and heading for that next glass of mulled wine.

Employees should continue to be aware that when on a work Christmas lunch or dinner, they are still employed by

The Scottish Housing Bill and Letting Agent Regulation

The Scottish Government has issued the draft Housing Bill. The Bill covers a wide range of issues but one of the most significant is the plan for letting agent regulation in Scotland.

The Bill proposes a register of letting agents. Agents will be required to apply to be entered into the register and will only be admitted if deemed to be fit and proper to carry out letting agency work.

 

When looking into whether an applicant is fit and proper, the Scottish Ministers can

Divorce, Financial Settlements & Bankruptcy

The economic downturn has had a dramatic impact on financial settlements on divorce and has even affected those once considered financially stable.

The law in Scotland relating to financial settlements on divorce can be found in the Family Law (Scotland) Act 1985. But when looking at the effect of bankruptcy (or sequestration) on separating spouses, it is necessary to also consider the terms of the Bankruptcy (Scotland) Act 1985.

When advising clients of the effect of their spouse's bankruptcy following separation, it is important to

Using Management Control Orders

In what is thought to be the first of its kind in Scotland, the City of Edinburgh Council has seized control of two ?party flats? from a private landlord after applying for Management Control Orders (MCO). What are the implications for landlords? ?This Order was brought in under the Antisocial Behaviour Etc (Scotland) Act 2004, which created a number of powers for police, local authorities and Registered Social Landlords to deal with antisocial behaviour. The City of Edinburgh Council may be the first to use

Introduction of another Scottish Housing Bill

After much debate and a lot of discussion it would appear that we are now very close to the introduction of another Housing Bill in the Scottish Parliament.

This Bill is expected to propose a number of changes to the rules which govern tenancies in the public sector in Scotland. We expect the proposals in the Bill to cover almost every area of housing management law.

 

We anticipate the following proposals

  • Changes to the rules on ?reasonable preference? and priority in allocation of housing.

Land Registration in Scotland - Changes to the System

Land Registration in Scotland - Changes to the System

The last time the system of land registration in Scotland was fundamentally changed was in 1979. After 1979 title to land would be based on areas plotted on the Ordnance Survey map in the form of a Land Certificate. The Certificate would be issued by the Land Register following completion of a sale transaction and the title would be guaranteed by the Government.

Gradually as properties have been sold over the years many have moved on to the map based system. However, much land and

Can students sue parents for financial support in Scotland?

Can students sue parents for financial support in Scotland?

As university fees increase and part-time jobs become increasingly scarce, students are relying on their parents more than ever to fund their academic studies. But what legal options are available to students who feel they are not receiving the necessary financial support from a parent? Can students sue parents for financial support in Scotland?

Parents have a legal obligation to support a child financially until they are 25 if the child is 'undertaking instruction at an education establishment, or training for employment or for a

Employers obligations to employees in winter

Employers obligations to employees in winter

Baby it's cold outside! Extreme weather conditions such as those experienced a few years ago, can wreak havoc across the country meaning some workplaces come to a standstill and this can have an adverse effect on both employers and employees. As we creep into winter here are some things to think about.

It is important as an employer that, during any period of adverse weather, you are in control and have an understanding of what you need for your business to continue as normal. It

Abolition of all guardianship and mental health laws?

Abolition of all guardianship and mental health laws?

Should guardianship and mental health laws be abolished? This is the proposal of a committee set up under the UN Convention on the Rights of Persons with Disabilities. The same has also been proposed by the European Union's Fundamental Rights Agency.

I believe these proposals are gravely discriminatory against some of the most vulnerable people in society as some people are unable, with any amount of help, to act and decide validly for themselves.

Without guardianship or similar protections, many vulnerable people can be seriously

Immigration Checks by landlords

There has been much speculation in the media regarding the proposed Immigration Bill, which will include duties to carry out immigration checks by landlords on prospective tenants. Although there were reports that these provisions would be scrapped, Home Secretary Theresa May confirmed her plans to press ahead with these. This is anticipated to become law by 2014 (subject to approval by MPs).

Will carrying out immigration checks by?landlords be necessary?

The Aims of Bill

In a bid to tackle the social and economic problems caused

The Procurement Reform (Scotland) Bill is Introduced

The Procurement Reform (Scotland) Bill is Introduced

The Procurement Reform Scotland Bill was introduced in the Scottish Parliament on 3 October 2013. Once it becomes law, the Act will exist alongside the current procurement regulations, but will make some fundamental changes in the way public contracts are procured in Scotland.

Some of the main changes are:

  • Increased regulation - supplies/services contracts with a value of £50,000 or more and works contracts with a value of £2,000,000 or more which are currently not covered by the procurement regulations are subject to the Bill;

Help to Buy Scotland creating housing bubble?

Help to Buy Scotland creating housing bubble?

Will introducing 'Help to Buy' in Scotland take us down the route of another housing bubble?

The controversy surrounding the Help to Buy Scheme south of the border has not prevented a similar government-backed scheme being introduced in Scotland. The Scottish Government announced investment of £220m over three years to provide financial assistance to eligible homebuyers in what it has described as a "game changing initiative" for the housing industry.

The Help to Buy scheme, which has the support of the Council of Mortgage

TUPE Regulations - what are the changes?

TUPE Regulations - what are the changes?

Are you up to date with the changes in TUPE regulations? In November 2011, the Department for Business, Skills and Innovation (BIS) published a call for evidence, seeking views on the effectiveness of the current TUPE regulations. This was on the basis that it was thought that the regulations 'gold-plated' the EU Directive.

Following this call for evidence, the Government announced how the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 will change. After deciding not to go ahead with two significant changes it

Tribunal decisions made on bedroom tax appeals

Tribunal decisions made on bedroom tax appeals

The 'bedroom tax' remains a topic of intense debate and public interest. Recently we saw the first tribunal decisions relating to bedroom tax appeals by tenants and we have had the astonishing sight of a United Nations "rapporteur" visiting Britain and suggesting that the bedroom tax may breach human rights.

A large protest also took place outside the Liberal Democrat party's Scottish Conference and Baroness Shirley Williams admitted to the conference that this policy was a "mistake".

The tribunal decisions were issued in Kirkcaldy where

Grandparents rights to see grandchildren

Grandparents rights to see grandchildren

What are grandparents rights to see their grandchildren following the breakdown of a relationship. While most parents have parental rights and responsibilities which allows them to seek a court order for contact with their children, what options are available to other family members who feel excluded from a child's life.

Applying for parental rights and responsibilities

Almost anyone can apply for parental rights and responsibilities provided they have an interest in the child's life. In practice they will have to show it will be in

Procurement Regulations and Time-Barred Challenges

Procurement Regulations and Time-Barred Challenges

What do you know about procurement regulations and time barred challenges? The case of Nationwide Gritting Services Limited (NGS) against the Scottish Ministers sheds some light on the challenge timescales under procurement regulations, but unfortunately does little to provide comfort to contracting authorities embarking on procurement exercises.

The 2006 regulations outlined that court proceedings for a breach of those regulations must be brought within 3 months from the date when grounds for bringing proceedings first arose. Under the new 2012 regulations, this is now 30

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

Maternity leave and holidays

Maternity leave and holidays

Do you know your rights regarding maternity rights and holidays? I am regularly asked this question by both employees and employers.

Legislation states that all contractual terms (except pay) survive during both ordinary maternity leave (OML) and additional maternity leave (AML). Women are therefore entitled to accrue statutory and contractual leave while on maternity leave.

If they can't take all the leave they're entitled to during a particular year, they can carry it over to the following year. Many employers allow employees to add all

Property Factors Act - the deadline is looming!!

Property Factors Act - the deadline is looming!!

For all of those Registered Social Landlords (RSLs) who provide property management services, the deadline of 1st October 2013 to provide your factored owners with a written statement of service is drawing near.

Many housing associations have been working throughout the summer months preparing their bespoke written statement for issue. However some RSLs are still in a quandary as to whether or not they do indeed provide factoring services, what services they provide and what the costs of that service should be.

We have

Can landlords force access to a property?

Can landlords force access to a property?

Landlords, both private and social, may require access to one of their tenanted properties for a variety of different reasons. So, can landlords force access to a property?

Landlords have a general duty to repair and maintain properties throughout the duration of a tenancy and are legally obliged to comply with gas and electricity safety regulations so access may be necessary on occasion.

A landlord may also wish to carry out a general inspection to ascertain the current condition of the property or may wish

Legionnaires Risk Assessments & Private Landlord Obligations

Legionnaires Risk Assessments & Private Landlord Obligations

The outbreak of Legionnaires Disease in the Renfrew area, following on from an Edinburgh outbreak in 2012, is a timely reminder to private landlords that they have obligations to carry out legionnaires risk assessments of water systems within their rental properties.

The Health & Safety Executive (HSE) have an Approved Code of Practice and Guidance as regards Legionnaires Disease. The Code can be found here.

The Code confirms that private landlords have a duty to carry out legionnaires risk assessments on water systems in

What are zero hours contracts?

What are zero hours contracts?

Large employers such as Sports Direct, McDonalds and even Buckingham Palace have recently been 'exposed' as using zero hours contracts. So what are zero hours contracts?

What are zero hours contracts?

Zero hours contracts are generally contracts of employment between employer and worker with no minimum hours for the worker, and no obligation on the employer to provide any hours. It also means, in theory, that the worker is not obliged to accept the hours which are offered to them.

Workers are entitled to be

Child Maintenance Payments Following Separation

Who is eligible for child maintenance payments following separation?

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 is 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

What happens when a buyer pulls out of a house sale?

What happens when a buyer pulls out of a house sale?

It is, thankfully, relatively unusual for a seller of a property to be faced with a buyer who pulls out of a house sale and refuses to fulfil their obligations under a contract. But it sometimes it does! So what happens when a buyer pulls out of a house sale?

On the rare occasions that this does occur, it has generally been accepted that the seller's best option is to rescind the contract ('missives' as they are known in Scotland) and to claim damages from

New Law Society Guidance on Vulnerable Clients

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

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

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?

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

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?

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 does

Scottish Housing Law - More Changes Ahead

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

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

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

Stress in the workplace - the legal implications

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

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

Stress at work - can a stress audit help?

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

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

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

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