Glasgow: 0141 221 5562 Edinburgh: 0131 220 7660

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

Housing Associations & the bedroom tax ?

There cannot be a single housing association which is not aware of forthcoming changes to housing benefit and the impact of the bedroom tax. These changes will see reductions in housing benefit to tenants who are deemed to be over-occupying. New rules will set out:

-? The number of bedrooms which will be eligible for benefit

-? If a tenant has one spare bedroom, then 14% of their benefit will be removed

-? If they have two or more spare bedrooms, then their benefit will

Gritting common areas - landlord?s responsibility?

In a previous blog about landlords? duties during the winter months, we highlighted the possible duty for landlords under the Occupiers Liability (Scotland) Act 1960 to ensure that they are gritting common areas.

Continuing the gritting common areas theme, a very interesting judgement has now been released in a sheriff court case. The case is Bonham v Pentland Housing Association.

-? Ms Bonham was a tenant of Pentland HA

-? In December 2009, she fell on the pavement area outside her home, breaking her

Do you need a common insurance policy in Scotland?

Owners have a duty to ensure that their own property and any common parts are adequately insured. The title deeds for your property will state whether or not you are obliged to take out a joint insurance policy with other owners to cover both your own property and/or common areas affecting a larger building. So do you need a common insurance policy in Scotland?

The level of insurance is generally its re-instatement value, namely the cost of re-building your home from scratch. The re-instatement value

Scottish Tenancy Deposit Scheme Deadline

LetLaw have had a number of Tenancy Deposit Scheme?queries from landlords and agents regarding the Scottish Tenancy Deposit Scheme deadline, and in particular the rules relating to tenancies which started prior to 7 March 2011.

The Tenancy Deposit Schemes (Scotland) Regulations 2011 provide for different timescales for lodging deposits, depending on when the tenancy commenced and when it renews. Some landlords appear to be of the belief that as long as the deposit was received prior to 7 March 2011, then they have no obligation

What are the duties of charity trustees in Scotland?

What are the duties of charity trustees in Scotland?

The Office of the Scottish Charity Regulator (OSCR) were made aware of reports in the press about an alleged high value severance package agreed by the charity trustees of Glasgow East Regeneration Agency for the charity's Chief Executive when he was made redundant. What exactly are the duties of charity trustees in Scotland?

OSCR's regulatory functions are set out in the Charities and Trustee Investment (Scotland) Act 2005 (the Act) and include the requirements to encourage, facilitate and monitor compliance by charities and to identify

Housing Associations: How to follow the Golden Brick Road?

Housing Associations: How to follow the Golden Brick Road?

Golden brick is a familiar term to housing associations in relation to development sites and taxation but how will they follow the golden brick road? So, where Dorothy discovered the Wizard was simply an ordinary man, what will housing associations' discover if they pull back the curtain for golden brick?

What is Golden Brick?

Housing Associations (HAs) are not generally able to recover VAT on rented properties and have limited recovery prospects for shared ownership schemes. As a result they will always seek to

Dealing with workplace sickness absence

In 2011 a review of workplace sickness absence was carried out by Dame Carol Black, the Government's national director for health and work, and David Frost, director-general of the British Chambers of Commerce.

The Government has responded to that review by announcing that it will introduce a new independent assessment and advisory service in order to address sickness absence and get employees back to work.

This is likely to be in place by 2014. The service will offer a health assessment for employees who have

Cohabitation Rights in Scotland - Decision of Gow v Grant

The law of Scotland on cohabitation rights provides that when an unmarried couple who live together separate, then one or either of the former partners may make a financial claim on?the other. ?There remain differences between this regime and the applicable system when spouses divorce and they should not be viewed as one and the same. This is in stark contrast to the law of England where only married couples may seek financial provision from a spouse.? The law when it first came into force

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

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?

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

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

Page 10 of 14