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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

Employers with more than 5 employees were required, until 1^st 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

We are often asked by clients what kind of financial support is available 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 the

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

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

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 to commercial

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 Registered Social Landlords (RSLs) 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

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 years

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

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 and his

We 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

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,

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

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

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

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

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

Mid market rent (MMR) is aimed at providing people on modest incomes with an opportunity to access rented accommodation - does mid market rent for housing associations work? Due to the Scottish Governments consultation outlined further on, more and more housing associations are considering mid market rent tenure in addition to the current options they provide to social tenants on lower incomes.

Grants to support the provision of mid market rent units are currently only available to non-charitable subsidiaries of housing associations as legislation:-

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The European Commission published draft proposals in January 2012 which aim to update data protection regulations and unify data protection within the EU.

Summary of Proposals

• Stricter requirements on organisations to adopt policies and procedures that clearly demonstrate how processing of personal data is carried out. Organisations will only be able to collect the minimum amount of data required for the task in hand, and can't retain data for longer than is necessary.
• Public authorities or commercial organisations which employ more than 250 people will

As a student, it's a relief to have some kind of formal work placement organised for the summer holidays. Something more interesting than stacking shelves, a chance to apply some knowledge you have learned from University, as well as being good for the CV. But what about the content of my placement at TC Young? Would this be days filled with making coffees and photocopying?

Thankfully not. Over my short time here I have been able to work in different departments doing a variety of

In July 2012 the Court of Session in Edinburgh ruled that a (Scottish) Will forged by a deceased's mother should be set aside. Mrs Nicol's son died unexpectedly, he was separated from his wife with a young daughter. Mrs Nicol was concerned his estranged wife would inherit in preference to his daughter. Four years of court action and family acrimony then followed. Which could easily have been avoided if the deceased had a valid Will in place. How do you go aboutmaking a Will in

Owners of Scottish properties should be aware that there are new requirements for Energy Performance Certificates which will be introduced in October 2012 and January 2013. Please find below a summary of the relevant changes:

From 1^st October 2012

- In addition to showing an Energy Performance Certificate to a prospective purchaser or tenant, a copy of the Energy Performance Certificate must also be given to the purchaser or incoming tenant of a property.

- All Energy Performance Certificates must contain a note of

Using the Small Claims Court in Scotland - this can be utilised by landlords looking to recover a debt owed by a tenant. Usually these debts relate to rent arrears or costs arising from repairs. If tenant fails to pay a debt owed to the landlord, and has also failed to respond to correspondence, then the landlord must decide:

- whether the debt is worth pursuing further

- which method to use in order to recover the debt in the most cost/time effective manner

A

There are many challenges facing vulnerable adults entering into tenancy agreements in Scotland.

The Adults with Incapacity Act is now well established in Scotland. It sets rules which deal with the appointment of guardians for people who lack capacity to deal with their own affairs. Many adults who are 'incapable' as defined in the Act are now in their own tenancies with significant support networks. Earlier this year I spoke at an event on this topic.

This event looked at the challenges faced by adults

If you open a newspaper or turn on your television, you are once again bombarded with headlines on yet another banking related scandal - this time LIBOR rate fixing. With the resignation of Barclay's chief executive and more revelations in relation to rate fixing practices by the major banks you may be wondering what it's all about, and how it affects you.

• What is LIBOR?

The current issues surround the LIBOR interest rate. This is the average rate at which the major banks confirm that

Cohabitation law including cohabitation rights, came into force in 2006 through the Family Law (Scotland) Act 2006 (the Act). The Act contains provisions for dealing with financial issues when an unmarried couple separate. Cohabitation is a less formal relationship than marriage and the legal rights available to each person when they separate are not nearly as extensive as if they divorced.

There are a number of common myths amongst cohabiting couples:

• We are common law husband and wife
• Cohabitation rights are the same as married

All three of the tenancy deposit schemes in Scotland approved by the Scottish Government are now operational! The many different aspects of the tenancy deposit scheme in Scotland have been covered on our blog before however with the official operational date of 2 July 2012 having passed, it would be a good time to remind landlords of the timescales involved to ensure they are complying with their duties. Rest assured, there is no need to panic just yet!

Landlords in Scotland will need to lodge

Children's Services are provided by the Social Work Department in each Local Authority (Council) - you may want to know why children's services are involved with your child. Children's Services deal with concerns about a child's welfare and provide assistance and protection for children in need.

A child in need is one:

• who is unlikely to achieve or maintain a reasonable standard of health or;
• whose health or development is likely to be impaired significantly unless such services are provided; or
• who is disabled; or

If a landlord finds himself in a situation where a tenant has requested terminating a tenancy agreement early, the tenancy agreement should have clear terms under which the tenant can give notice to terminate the agreement. In most circumstances the tenant will have to give two months notice prior to the end date of the tenancy. If the tenant tries to get out of the agreement early without giving notice in terms of the tenancy agreement, the landlord may have a claim for any losses

The Property Factors (Scotland) Act 2011 will come into force on 1 October this year and alongside this the Homeowners Housing Panel.

The Act will introduce new rules and regulations for property factors in Scotland. Property factors will require to be registered and to comply with a Code of Conduct. It will also introduce a new dispute resolution procedure for complaints arising from factoring problems or allegations of failure to comply with the Code of Conduct.

With effect from 1 October, the Homeowners Housing Panel

As a divorced parent do you know if you need consent before you can take your child abroad for a holiday? When looking forward to a summer holiday, it is a question that often arises for separated or divorced parents. Do you need both parents to consent?

This can be a fraught issue and unfortunately the law does not help. The Children (Scotland) Act 1995 states that when both parents of a child have parental responsibilities and rights, the consent of both is required prior

What do you know about legal capacity, Guardianships & Power of Attorney? In Scotland, a person is deemed to have legal capacity to act and make decisions on their own behalf once they reach the age of 16. This means that parents no longer have any authority to make decisions or deal with agencies on their son or daughter's behalf once they turn 16.

Why is legal capacity important?

For most people, taking on responsibility for their own decisions and actions at age 16 is

The Government has opened a consultation on their proposed Community Empowerment and Renewal Bill. It is an open consultation and the Bill will be drafted in light of the responses received.

Current Law

Currently a rural community with a population of less than 10,000 can register an interest in a piece of land and be given the first opportunity to buy it if it comes up for sale; as long as the community is able to demonstrate:-

• community support for the purchase; and
• positive economic,

Not only do torrential downpours make everyone feel miserable the severe weather can also cause serious flooding and damage to your property. Forecasting the weather is a science, and while you can take steps to reduce the damage and be prepared for the worst, it is also very important to insure your contents against flooding. We are often asked - will my insurance cover damage caused by flooding?

Will your insurance policy cover any damage caused by flooding?

Check all insurance policies and make sure

A consultation paper has been produced by the Scottish Government with a view to reform the Right to Buy. The proposal is either to:

1. abolish it entirely, or

2. remove the preserved Right to Buy and transfer all tenants currently with that entitlement to the modernised Right to Buy

The preferred option (whatever that may be) will be included in the next Housing (Scotland) Bill.

This consultation has already caused a bit of a stir in the political field, not least with the Conservative

How do you comply with the new public procurement regulations? The Public Contracts (Scotland) Regulations 2012 came into force in May 2012, replacing the 2006 procurement regulations.

The new regulations consolidate the 2006 public procurement regulations and subsequent amending regulations into one document, as well as incorporating some important changes.

What are the main changes?

• Time limits for raising an action: Aggrieved tenderers must now raise a court action against a public body carrying out a procurement exercise within thirty days of the date on