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Scottish Tenant Information Packs

Following their introduction in the Private Rented Housing (Scotland) Act 2011, the Scottish Government announced that Scottish tenant information packs will arrive on the 1st May 2013. From that date, a landlord will be required to provide the tenant with standard documents no later than the date on which the tenancy starts, as specified in the Tenant Information Packs (Assured Tenancies) (Scotland) Order 2013.

In particular landlords will require to provide tenants with the following documents:-

  • a copy of the tenancy agreement
  • where the

Forcing owners to maintain property

We are frequently asked by landlords ?can other owners?be forced to maintain their property??. One common issue is where persistent leaks from one property cause water ingress and damage to another. This can be where one or both of the properties are being let.

Unfortunately, landlords in this situation are limited in what they can do to prevent further leaks arising. You can put pressure on the owner to carry out repairs swiftly and by a qualified contractor. However, often repairs aren?t carried out at

General Consent - Remember the Audit Trail

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

General Consent will cover: -

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

Landlords, the truth about signing tenancy agreements online

Landlords are increasingly turning to the internet to conduct their letting business. A major part of that is the issue of signing tenancy agreements online. Most landlords would be keen to have this option particularly if there is no face to face contact between landlord and tenant. However, the law in Scotland has not quite caught up with the rest of the world and as such there is some doubt whether tenancy agreements signed online are legal.

In Scotland, tenancy agreements require to be ?self-proving?.

Scotland?s Homeowner Housing Panel

?Better Dispute Resolution in Housing: Consultation on the Introduction of a New Housing Panel for Scotland?. ?A bit of a mouthful, but this is the title of the latest Government proposal for Scotland?s Homeowner Housing Panel which was published in January 2013.? The paper can be found by clicking here.

In very simple terms the government is inviting comment on its plan to change the way that housing disputes are resolved.

The consultation examines three principal options:

  • The expansion of mediation,?other forms

Making a Will in Scotland

Do you fall into the 60% of the population who do not have a Will? ?A survey found that the majority of those who didn't have Wills knew it was something they should do, but had just ?not got round to it?. If you fit into that description, why not start the New Year by ticking making a Will from your ?to do? list?

What happens if I don?t make a Will?

Many people delay making a Will as they believe their affairs are straightforward

Tips for divorce settlements - pensions and divorce

It is not uncommon for divorce settlements to include a person's?pension, as it can be more valuable than your house.? It is therefore important not to disregard pension rights when determining how matrimonial property is to be divided on divorce.

In Scotland, only pension assets which have accrued during the period of marriage comprise matrimonial property.

There are three ways in which your pension can be dealt with on divorce:

  1. Pension sharing:? The pension policy can be shared by transferring a portion of the funds

Employment law 2013, 6 things you need to know

2013 is shaping up to be another busy year for employment lawyers and HR professionals alike. With a raft of changes expected, we have summarised the most important, and will keep you updated throughout the year with regular blogs and tweets about employment law 2013.

1.?? From 1st February:

-? the Unfair dismissal compensation?award limit will increase from ?72,300 to ?74,200, and

-? a week?s pay for calculating statutory redundancy will increase from ?430 to ?450.

2.?? The Enterprise Regulatory and Reform Bill

Procurement interim orders & public interest

The?case of Glasgow Rent Deposit & Support Scheme against Glasgow City Council and Ypeople (decided on 6 December 2012) highlights the court?s reluctance to delay a contract award because of an alleged breach of the procurement regulations where this would be detrimental to the public interest.

GCC tendered for a service providing increased access to housing for the homeless and specifically the provision of a deposit guarantee scheme and temporary furnished accommodation. The pursuer raised the action and asked that the decision to award the

Scottish Housing Bill ? more legal changes ?

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

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

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

Advertising Properties for Rent in Scotland

There are changes to advertising properties for rent in Scotland. The introduction of two important statutory changes will directly impact how landlords and letting agents advertise their properties. Non-compliance with the new advertising rules can result in financial penalties of up to ?500. Landlords and letting agents in the private rented sector in Scotland should take steps to ensure that they are not caught out by these legislative changes.

Displaying Energy Performance Indicator

From the 9th of January 2013, where a property is being

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.

Facebook Employment Advice & Disciplinary Action

What Facebook employment advice?should you know about and what disciplinary action could be taken against you?

The rise in the use of social media in both business and in private is stratospheric. Often the lines between what is work related and what is truly ?private? can become blurred.?Employees have been dismissed because of inappropriate comments (which have amounted to bullying and harassment) being posted on Facebook about colleagues, or where they have posted comments which have brought the employer into disrepute.

A Housing Trust was

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

Payment of adjudicator fees

How much do you know about the payment of adjudicator fees? The Court of Appeal in England has ruled that adjudicators are not entitled to payment of their fees where their decisions are unenforceable. Adjudication is a common alternative to court action in construction disputes and is referred to as the first ?port-of-call? for resolution of any dispute in the majority of construction contracts.

PC Harrington Contractors Ltd and Systech International Ltd:

The First Ruling

In the first instance, the court ruled that the role

Can I recover unpaid rent from companies?

What do you do about unpaid rent when dealing with limited companies who won't pay? It is common for landlords and letting agents to let residential properties to limited companies, for use by the company employees. Where such a lease is with a company tenant (rather than an individual) this form of lease cannot be a Short Assured Tenancy. The Housing (Scotland) Act 1988 states that for a Short Assured Tenancy to be created, the tenant must be an individual. Where you are leasing to

Service Provision Changes, TUPE, legal advice ?

We highlighted some issues that can surround a transfer of undertakings under TUPE, particularly in relation to service provision changes (SPC).

One of conditions that have to be satisfied for ?service provision changes to occur is whether, immediately before the SPC, there is an organised grouping of employees whose principal purpose is working for the ?client?.

But who is the ?client?? This case helps to answer this question.

The case involved an in house lawyer who worked for JAS Ltd, part of the Jarvis Group.

Shared Equity - What is a Golden Share?

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

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

Ensure your property is being maintained

Do you know how to ensure your property is being maintained properly? The Letlaw team recently received a query from a landlord who suspected their tenant?was hoarding items within the property. Although the tenant had always paid their rent, they had denied the landlord access to carry out inspections, over a long period of time . The landlord asked: ?should they insist on gaining access to the property given the rent is always paid on time, to allay their concerns, but risk 'rocking the boat'

Winter is coming ? landlord's legal responsibilities

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

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

Maintaining common areas - legal advice

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

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

Can procurement be used to deliver the Living Wage?

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

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

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

Hedging their bets? The High Hedges (Scotland) Bill

Problems with your neighbour?s leylandii? Are their trees blocking out the morning sun and they won?t do anything about it? Well, the Scottish Parliament looks set to provide you with a helping hand following the introduction of the High Hedges (Scotland) Bill as a private member?s Bill in October 2012.

The proposed legislation would give someone recourse to their local authority if they are unable to come to an amicable solution with their neighbour in circumstances where they feel? that a ?high hedge? on neighbouring

Employment Law - What?s Hot and What?s Not?

Do you know what?s on the cards for Employment Law in 2013?

Agency Workers

The Government is expected to review employers? administrative obligations in the Agency Workers Regulations in June 2013, with a view to making sure that practical arrangements are as straightforward as possible.

Unfair Dismissal Compensation

The Enterprise and Regulatory Reform Bill (ERRB), which is currently progressing through Parliament, will:

  • give the Secretary of State power to change the limit on the amount of unfair dismissal compensation.
  • change the name of Compromise Agreements

Does your charity have restricted funds?

As at 1 November 2012, the Charities Restricted Funds Re-organisation (Scotland) Regulations 2012 came into effect. Do you know what a restricted fund is and what it means for your charitable organisation?

The Regulations define ?restricted fund? as??property (including money) given to a charity for a specific purpose and in respect of which conditions have been imposed as to its use?.

Examples as provided by the Office of the Scottish Charity Regulator (OSCR) of such restricted funds are:-

  • A charity receiving a sum?of money for

Acquiring Rights to Land by Way of Prescription

Prescription is the process of acquiring rights and in particular obtaining a good title to land as a result of the passage of time. The reasoning behind this is that a person who has enjoyed 'quiet and uninterrupted' possession of land for a long period of time with a registered title should be granted a right to it.

There are two forms of prescription, positive and negative.

Positive Prescription

  • Land

Positive Prescription provides that where someone has possessed land "openly, peaceably and without judicial interruption

Who Pays for Common Repairs?

We are coming across an increasing number of queries from landlords regarding the problems arising from common repairs and we are frequently asked - who pays for common repairs?

Many landlords will have tenanted properties in blocks of flats where there will be common property requiring maintenance and repair. The question of who carries out the work and more importantly who pays for it is often one that is up for debate.

There may be a factor appointed for the block that has the responsibility

Separation & Divorce Legal Advice

Do you need separation or?divorce legal advice?

The recession has meant that many couples who are going through a separation or divorce cannot afford for one of them to move out of their matrimonial home. This situation is far from?ideal and can cause conflict and tension within the household.

A question routinely asked by clients is ?can they ask their spouse to move out of the matrimonial home?.? The answer is yes but the spouse has to agree.? This is because married couples both have

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

The Gift Aid Small Donations Scheme

HMRC ?published for consultation the draft regulations for The Gift Aid Small Donations Scheme (GASDS).? Consultation will end on 5 December 2012.

It is intended that under the scheme all qualifying charities and community amateur sports clubs (CASCs) will be able to claim a top-up payment which is equivalent to Gift Aid on small cash donations totalling up to ?5,000 per year, without the need for individual Gift Aid declarations.

The present system of Gift Aid is a simple way for your charity to increase

All Change for Public Procurement Law?

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

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

Housing Law Scotland - Legal Judgement

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

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

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

Auto-enrolment pension scheme update

Employers with more than 5 employees were required, until 1st October 2012, to help their employees access a stakeholder pension scheme but this requirement has now been abolished with the introduction of the so called auto-enrolment pension scheme. However, transitional provisions do still allow an employer to continue deducting contributions from the salary of an employee who is an existing member of a stakeholder scheme after 1 October 2012. It?s best to check with the scheme provider for further guidance on this.

Auto-enrolment means

Financial support post divorce or separation

We are often asked by clients??what kind of financial support is available to me post-divorce/post-separation/post-civil partnership??

Husbands and wives/civil partners have a legal duty to aliment one another during marriage or whilst in a civil partnership.? This means that they have to financially support one another.? This duty continues in the form of aliment after separation until divorced or the civil partnership is dissolved.? After divorce/dissolution there may also be a duty to pay a periodical allowance for a period up to 3 years after

Unlawful letting agent charges in Scotland

Following their consultation on the issue of unlawful letting agent charges?in May 2012, the Scottish Government have announced that a change to the definition of a ?premium? will come into effect on 30 November 2012.

Currently, the definition of a ?premium? is contained within section 90 of the Rent (Scotland) Act 1984 which states that it includes ?any fine or other sum and any other pecuniary consideration in addition to rent?. Premiums are payments which are required by a landlord as a condition of the

Owner-employee contracts explained

So what are owner-employee contracts? In his speech to the Conservative Party conference on 8 October 2012, Chancellor George Osborne set out proposals which could see employees give up employment rights in return for shares in their company and tax free gains under a new owner?employee contract.

People employed on the contract will give up their rights to claim unfair dismissal, redundancy, the right to request flexible working and time off for training. Women will also have to give 16 weeks' notice of their date

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

Eviction after bankruptcy or signing a trust deed - Scotland

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

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

The end of the Long Lease

The Long Leases (Scotland) Act 2012 received Royal Assent on 7 August 2012 and will bring an end ultra-long leases (those for more than 175 years) by converting them into ownership.

The intention is that on the Appointed Day (understood to be 28th November 2015) all eligible leases will be converted into ownership on that day unless the tenant opts out.

An eligible ultra-long lease is one that was: -

  • let for more than 175 years and, at the Appointed Day has more than 175

Impact of sickness during annual leave

Whether or not workers can reclaim holidays if they are sick during annual leave has caused a headache for employers for some time. In 2012, the European Court of Justice (ECJ) ruled in workers? favour. ?So what is the impact of sickness during annual leave?

What does this mean for employers?

In the case of ANGED v FASGA, the ECJ held that workers who fall ill during annual leave can take their holiday again at a later date.

Workers are already allowed to retake

Welfare Reform - no more time to cry foul

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

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

Pre-Action Requirements - eviction notices

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

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

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

How can tenants ensure repairs happen?

So how can tenants ensure repairs happen? The Housing (Scotland) Act 2006 stipulates that a private landlord must ensure that each tenanted property meets a basic standard of repair; if the property doesn?t then tenants can make a referral to the Private Rented Housing Panel (PRHP).

In order to meet the repairing standard:

  • The property must be wind and watertight and fit for human habitation,
  • The structure and exterior of the property must be in proper working order,
  • The installations for the supply of water,

The Divorce Process - a new stance on finance!

A new rule came into effect on 1 August 2012 for the divorce process. In divorce cases with a financial element, whether it is a claim for a capital sum or sale of the matrimonial property, both parties must complete a Form 13A.

This form must be completed by the party raising the action before the action is raised in Court.? The form asks for details of matrimonial property and debts as at the relevant date.

What?is matrimonial property and debts?

  • Matrimonial property is property

Changes to Eviction Notices

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

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

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

A Guide to Employment Tribunal Statistics and Fees

Employment Tribunal statistics

The Employment Tribunals have published their annual statistics for the period 1 April 2011 to 31 March 2012.? Interestingly the total number of claims continues to decrease (from 236,000 in 2009/2010 to 218,000 in 2010/2011 and decreasing again to 186,000 in 2011/212).

Unfair dismissal claims have fallen from 47,900 to 46,300.? If anyone is interested in reading the report it can be obtained from the Ministry of Justice website.

Employment Tribunal fees

The Ministry of Justice has recently published the results of

Procurement Contract Award Notice Requirements

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

Dying Intestate ? What to do when there is no Will

Around 70% of us die intestate in Scotland,?i.e. without a valid Will.? Yet the consequences of doing so can be expensive, and can mean that loved ones do not inherit as the deceased might have intended. We are often asked what to do when there is no will.

Unless there is a valid Will in place clearly signed and dated, expressing the deceased?s wishes, then the estate would be wound up as intestate and certain rules then apply.

How do you check if there is