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When can I get a divorce in Scotland and how long does it take?

We are often asked - when can I get a divorce in Scotland and how long does it take? You can get divorced in Scotland if your marriage has broken down irretrievably.

What options are open to me?

  1. If your husband or wife has committed adultery you can raise a divorce action immediately. However, if you proceed on this basis the divorce writ will have to:
    - name the person with whom your spouse formed a relationship
    - be served on that person
  2. If the

How long does an eviction action actually take in Scotland?

Tribunal Repossession Application Timescales

The answer to "how long does an eviction action actually take in Scotland?" is much along the same lines as "how long is a piece of string?"

Obtaining an Order for Possession in Scotland is not a particularly quick process. If your application is straightforward and is not defended by your tenant, the following can be used as a general guide:-

Which route of repossession are you taking?

If the tenancy is a short assured tenancy:

  • Compulsory Repossession: this relies on

Procurement Process: Challenging the Final Decision

Under the procurement regulations, an organisation engaged in a procurement exercise should allow a ?standstill period? of 10 days to elapse between notifying the tenderers of the successful party and awarding the contract. If an unsuccessful tenderer raises a legal challenge to the procurement process during the standstill period, the organisation cannot proceed to award the contract without first obtaining an order from the court.

In a recent case from Northern Ireland (Rutledge Recruitment and Training Limited v Department for Employment and Learning)

Feed in Tariff - Are RSLs running out of time?

Although the deadlines for the Feed in Tariff in March 2012 and the Community Energy Savings Programme (CESP) in December 2012 seem a long way away, are RSLs running out of time? Housing Associations would benefit from thinking about it now due to the lengthy lead in time.? This is due to the number of parties currently involved:

  • All systems installed need to be commissioned by approved suppliers
  • The works (and the carbon saving properties) must be completed before these dates -?not merely committed
  • Utility

What is a Scottish Charitable Incorporated Organisation

A Scottish Charitable Incorporated Organisation (SCIO) is a new legal body (with effect from April 2011) for charities registered in Scotland.

What is a Scottish Charitable Incorporated Organisation?

  • It is?not?subject to the same reporting and regulatory requirements as a company.
  • It can enter into transactions on its own behalf, rather than by its charity trustees on its behalf.
  • The charity trustees are in general protected from incurring personal liability.? (However this protection is not absolute and charity trustees individually may be held responsible for the

Choosing Trustees & Executors in your Will

How do you go about choosing trustees & executors?in your Will?

The person or people appointed by you to administer your estate when you die are required to fulfil their role of ingathering your estate by:

??paying off debts and expenses (from your funds, not theirs!)
??distributing the estate in accordance with your Will or, if no Will, in terms of the laws of intestate succession.

Without a Will the people appointed by law may be people you do not like, do not trust and

Landlords ? How to use the Small Claims Court in Scotland

How can landlords?use the small claims court in Scotland to recover debt from a tenant? We?work closely with Landlord Accreditation Scotland and one of their regular training sessions involves how to pursue a tenant for money through the courts using the small claims procedure.

It?s supposed to be an easy way for people to recover money without a solicitor, but caution should be taken as there are some hidden dangers that landlords should be aware of:

The Court Rules
Small claims were designed to be

Should Scotland scrap home reports?

Are Home Reports here to stay or should Scotland scrap Home Reports?

There are grumblings amongst MSPs. The Scottish Tories want them scrapped. David McLetchie MSP, Scottish Conservative Chief Whip, said: "In the best of times, Home Reports were an expensive luxury. However, nowadays figures showing that the housing market is struggling to return to where it was a couple of years ago they are madness?

Why have Home Reports?

The single survey for the Home Report was intended to be:

  • an assessment by the

Evicting Tenants for Antisocial Behaviour

We asked our blog readers whether a conviction for supplying Class A drugs within a social rented house (antisocial behaviour) should be made a mandatory ground for evicting a tenant.? 97% of those who voted were in favour. Is evicting tenants for antisocial behaviour a good thing?

In 2011,?Grant Shapps, Housing Minister in the UK Government launched a consultation document; it asks whether a new mandatory power of eviction should be available not just for drugs offences but for all antisocial behaviour?

We would

Do I Need a Written Tenancy Agreement in Scotland?

Our lettings service LetLaw received a query?from a landlord who asked whether it was necessary for him to have a written tenancy agreement with his tenant.

The short answer is yes! Section 38 of the Housing (Scotland) Act 1988 makes it a legal requirement for a private landlord to provide a tenant with a written tenancy agreement. If the landlord fails to do so, the tenant can apply to court for this documentation to be provided.

A tenancy agreement shouldn?t be viewed as a burden

An Overview of the Agency Workers Regulations 2010

After many years of campaigning by trade unions, the Agency Workers Regulations 2010 are due to come into force on 1 October 2011 (and are not retrospective).

In general terms, agency workers will qualify for treatment equal to directly employed workers ? that is equality in terms of basic employment conditions; after 12 weeks in the same role with the same hirer regardless of whether they have been supplied by more than one agency for part of that period of time. ? Basic working and

Dying Without a Will in Scotland

Will law reform change the impact of dying without a Will in Scotland? Society and family structures have changed considerably since the current law on succession came into force in 1964 and there is widespread support for the law to be updated to reflect this.

Current Rules
Where a person dies without a Will (intestate) his spouse/civil partner has prior rights to his estate:-

  • Deceased's share in the dwellinghouse occupied by him and the spouse/civil partner up to £473,000;
  • House contents up to £29,000;
  • Cash

How to Legally Change Your Name in Scotland

The law in Scotland allows anyone to change his or her forename or surname legally at any time providing this is not to defraud. We are often asked how to legally change your name in Scotland.

Marriage, Divorce and Civil Partnership
Following marriage or a civil partnership you can use your birth name or your spouse's or partner's. A marriage or civil partnership certificate is sufficient proof to instigate this change.

If you divorce or dissolve a civil partnership an extract decree of divorce or

Procurement Process and framework agreements

When going through a procurement process how do you ensure you are getting your framework agreements right?

What are?framework agreements?

A framework agreement is a ?contract? under the procurement regulations, but it is not a contract in the traditional sense. It is an agreement whereby a number of contractors are appointed to the framework, and the client may award specific contracts to any one of those contractors during the lifetime of the framework. However, there is no obligation on the client to do so.

What

Landlords Gas Safety Responsibilities

What is a landlords gas safety responsibilities? The Gas Safety (Installation and Use) Regulations 1998 require a landlord to ensure that any gas fitting (and any flue which serves any relevant gas fitting) is maintained in a safe condition.

The Health & Safety Executive (HSE) issued a safety letter in October 2008 regarding a potential risk regarding flues for gas boilers which were located in internal walls and which run through areas such as a ceiling void.? Clearly such flues cannot be easily visually inspected.?

Boundary Dispute: Responsibility for Maintaining a Boundary

Although the law on boundary walls/fences is relatively straight forward, the issue of ownership or maintenance, in practice, is sometimes a difficult and sensitive issue. A seemingly minor disagreement can quickly become a full-scale boundary dispute involving solicitors? letters and threats of court action.

With any boundary queries:

  • At the outset you should review the relevant title deeds to see if there is anything which defines ownership or maintenance responsibility for the boundary feature.
  • The information contained in the title deeds takes precedence over any

Power of Attorney vs Guardianship, what's better?

Powers of Attorney and Guardianship are often confused and I am regularly asked for advice on which is more appropriate. So Power of Attorney vs Guardianship, what's better? Although both concepts are regulated by the Adults with Incapacity (Scotland) Act 2000 and have similar effects, there are significant differences between the procedure for each.

What is a Power of Attorney?
A Power of Attorney is a legal document appointing someone to act for and make decisions on behalf of the granter. The Power of Attorney

Demise of Lifelong Tenancy Agreements

In 2010?the Coalition government introduced proposals that will mean the demise of lifelong tenancy agreements. These proposals howeveer will not affect Scotland as housing is a devolved issue for the Scottish parliament.

The plans are being debated at Westminster as part of the Localism Bill but current proposals include:
??the creation of a new tenancy in the social sector called the "flexible tenancy".
??a fixed tenancy for a minimum of two years. Tenants would not be guaranteed any extension to that initial period.

The idea

Helping Landlords Get the Notice to Quit Date Right

As a private landlord, you really need to be on the ball to avoid the pitfalls of Scottish tenancy law. One of the biggest danger areas involves the perils of picking the wrong date. This can occur in a number of circumstances. So how do you get the notice to quit date right?

The Short Assured Tenancy Agreement Scotland

  • The law says that a short assured tenancy agreement must be for a minimum of six months. e.g. 8 December 2010 to 8 June 2011.
  • Always

How to Recover Money From a Debtor

How can you recover money from a debtor if you obtain a court Order which orders your debtor to pay you the debt but your?debtor does not make payment?

Do you know what you do next?? This is a predicament frequently faced by individuals and organisations who seek to recover debt.? Do not give up as there are various options available!

First Step
If you wish to pursue the debt, the first step is to serve a Charge for Payment.? This is a statutory notice

Successful Completion of Second Stage Transfer

On 27 June 2011, ?we successfully completed the last batch of housing stock second stage transfers from Glasgow Housing Association to several of our Registered Social Landlord (RSL) clients, meaning that the properties are now in the ownership of community-controlled housing associations throughout the city. In total, almost 19,000 homes have transferred to the delight of tenants who voted in favour of their new landlords during the consultation period.

Having been involved in bringing the planned transfer programme to fruition for many years, 2009 saw

What are Living Wills and do I need one?

What are living Wills?

They are:

- a statement expressing your views about how you would like to be treated in the future

- a Will of sorts but applies whilst you are alive not after your death

- essentially an expression of your wishes set out in advance of illness at a time when you have the mental capacity to understand the issues involved and give clear directions

- used to outline circumstances in which you?d like medical treatment withheld e.g. if you suffer

Does Power of Attorney include Tax Planning

Attorneys acting under a Continuing and Welfare Power of Attorney must comply with the five guiding principles set out in the Adults with Incapacity (Scotland) Act 2000. Arguably, the most important of these is that an Attorney must always act in the best interests of the adult. ?Does this include tax planning?

Best interests of the adult ? not always clear cut?
At first glance, it seems that deciding what is in the best interests of the adult is pretty straightforward. However, grey areas often

Divorce or Separation, What?s Best?

When a relationship breaks down, there are lots of questions at what is a very emotional and anxious time. ?If you are going through a divorce or separation, what is the best way to deal with this? ?Is it mediation? ?Or Court?

It is always wise to speak to a solicitor at an early stage who should explain:

  • that every situation is different and what works for one person will not necessarily work for another
  • outstanding issues can be resolved without acrimonious exchange of lawyers?

What are Collateral Warranties? Explaining the Basics

What are collateral warranties?
Collateral warranties are contracts which are designed to establish a contractual link between a third party (the beneficiary) and a contractor or consultant who has carried out certain works.

Why are they required?
In the case of a building contract, collateral warranties are a promise from the contractor to the beneficiary that the works have been carried out in accordance with the building contract. If the works have been carried out negligently, the beneficiary has a right of recourse against the

Get the procurement process basics right!

Many of our clients come too late for procurement advice, as they have already received notice of a potential challenge under the procurement regulations. If you are about to embark on a procurement exercise you should ask the following at the outset:

1.?What type of contract is it?
The procurement regulations apply to contracts for works, services and supplies. Although it seems easy to identify what constitutes a ?work? that isn't always the case!

A good rule of thumb to follow is that maintenance of

Charities & RSLs Combat Climate Change

Climate change burden
Real burdens? ?Boring?, you may say?. Indeed, often little consideration is given to imposing real burdens or conditions upon the sale of land or property. After the introduction of?legislation in 2010, however, real burdens have become more attractive to charities, housing associations and individuals with an environmental conscience as they can now be used to combat climate change.

The Climate Change (Scotland) Act 2009 creates a concept known as a ?climate change burden?, which must have as its purpose the

Private Rented Housing Scotland Act 2011

Are ready for the Private Rented Housing Scotland Act 2011??The Scottish Parliament doesn?t like to make life easy for us by just bringing a whole Act into force at the same time.? Instead, they like to test a lawyer?s ability to keep up to speed, by bringing certain parts into force in dribs and drabs? ?As a landlord, are you ready for the Private Rented Housing (Scotland) Act 2011?

On 31 August the following provisions will come into force:

  • A local authority can require an

Making a Scottish Will

?Where there?s a wedding there?s a Will????.or not!?? The wedding of Prince William and Kate Middleton may have had you oohing and aahing at the pomp and circumstance but did it make you think carefully about the legal implications of marriage and what it means for the succession to your estate never mind the succession to the Crown and the future of the monarchy?? Probably not!! ?Are you Scottish and don't have a Will? ?Read on...

Did You Know?
Around 70 % of us don?t

Shared Equity vs Shared Ownership

e news reports?on a fairly regular basis that individuals wanting to get their foot on the property ladder are finding it more and more difficult these days to get their first home. ?How can shared equity and shared ownership schemes help? Shared Equity vs Shared Ownership, what's best?

Helping First Time Buyers?
Shared Ownership and Shared Equity are two schemes which can assist first time buyers or others on a lower income to get that first foot on the property ladder and achieve home ownership

Welfare Reform and Registered Social Landlords

The Welfare Reform bill which is currently progressing through parliament at Westminster has created much debate amongst Registered Social Landlords.

Much of the debate has involved the proposed introduction of universal credit, a single benefit payment for all claimants. This credit would:

  • replace all existing benefits
  • involve the eventual removal of housing benefit as an individual benefit.
  • remove the current system where housing benefit can be paid directly to a landlord on a tenant?s behalf

Many landlords have rightly expressed concern that the proposed welfare

Landlords: How to Evict a Tenant

As a private landlord you?ll be glad to know that when it comes to repossessing your property in Scotland, the lawmakers have made it nice and complicated for you. Even if a tenant has committed a serious breach of the tenancy agreement, there is no guarantee that you will be able to evict them. So how to?evict a tenant?

There are two handy routes for eviction that are available to you, but neither is fool proof.

?HOW THE SECTION 33 ROUTE WORKS:
??At least

Home Repairs for the Elderly and Vulnerable

Do you know Someone Whose Home is in Dire Need of Improvement?
Or has the Local Council placed a Statutory Notice on it for major repairs?? Councils are currently tightening their belts and housing funding may no longer be available to assist with home improvements or repairs. Does this also affect home repairs for the elderly and the vulnerable?

So Who will Pay for Home Repairs or Improvements?
If someone is property rich but cash poor and they are working alongside their local authority or

The Bribery Act 2010

The Bribery Act 2010 will come into force on 1 July 2011.? The Act sets out a range of bribery related offences which could give rise to prosecution for both organisations and individuals.

The offences include:-
1.?Giving bribes
2.?Receiving bribes
3.?Bribery of a foreign Public Official
4.?Failure of commercial organisations to prevent bribery

The definition of a bribe is a broad one and can include any payment or other benefit which is intended to induce or reward the improper performance of a public function or

Finance Bill 2011 - SDLT Relief on Property Purchases

The Finance Bill 2011 will provide a fairer system of charging SDLT for those buying property in bulk, be this blocks of flats or a number of properties off plan from a Developer.

Historically, on purchases of this type, the SDLT rate would be calculated on the global price paid often resulting in a huge SDLT bill.? For some trading subsidiaries of RSLs this substantial outlay has been off putting.? Once the Finance Bill receives Royal Assent, SDLT for such multiple purchases will be

Child Custody Scotland - Listen to the Children

Child Custody Scotland - I am often asked by parents what age their child has to be to express a view in a child custody dispute between parents. Although many people still talk of custody and access, these terms are no longer legally correct and are now called residence and contact. In terms of the Children (Scotland) Act 1995 there is an assumption that a child aged 12 or over is able to give an opinion, and to instruct their own solicitor. That is only

How do I Ensure a Tenant Pays their Rent?

As a landlord, how do you ensure a?tenant pays their rent?

Well, in a nutshell, you can?t!? But you can try to protect yourself by taking some basic steps before you hand over the keys to the property.

Credit checks
What is your prospective tenant?s financial position???Have they got multiple debts to other creditors? Are there any payment decrees granted against them in court?? If so, alarm bells should ring and you should think twice about handing over those keys!

Referencing
Obtain references from their

Procurement Process: Get the Basics Right

Clients continue to have a lot of questions concerning the procurement process and rightly so.? The risk of getting it wrong can be very costly for an organisation. So just how do you get the procurement process right?

A common pitfall under the procurement regulations is a failure to make the distinction between selection and award criteria. Such failures can be costly, leading to a challenge under the regulations. Although it seems that there is little guidance in the area, there are some useful hints

UK Employment Legislation Controversial Reforms

A number of national newspapers, along with the BBC, reported (from a Government source) that the Coalition were planning to introduce wide-ranging and controversial reforms to UK employment legislation.

-?Redundancy rules could be relaxed, says government ? BBC News Article

-?Unions attack plans to reform employment laws ? Guardian News Article

This was to include:

  • a cap on discrimination awards at tribunals;
  • dilution of the TUPE rights protecting transferring employees;
  • a reduction in the current redundancy consultation periods.

The actual published statement when

Avoid Contract Confusion

We are?often asked by housing associations to look at a contract for the purchase of land and to explain what it means. Legal contracts are supposed to provide certainty and clarity but the opposite can sometimes be the case. So how do you avoid contract confusion?

We recently looked at a contract for a housing association that had an ?option? to purchase some land for development. Rather than agreeing to buy the land outright the association had instead entered into an agreement where it could

Vulnerable adults - Would a Guardianship Help?

"Help! My Aunt Has Dementia and No Longer Understands". Under Adult with Incapacity Legislation - Would a Guardianship help?

Jean recently visited the office looking for advice on how she can help her elderly auntie, who?s in hospital. The medical staff caring for Jean?s aunt believe she no longer has capacity to make decisions on her own behalf but have told Jean that she has no legal authority to make decisions for her aunt.

Jean sought legal advice, which confirmed that as her aunt?s nearest

Ready for more changes in the Private Rented Sector?

The law is raining down on the private rented sector?and over the next few years there will be major legal changes affecting you and your tenants. ?Are you ready for more changes in the private rented sector?

Ahead of the pack is the Private Rented Housing (Scotland) Act 2011 which should be in force by the end of 2011. If you?re really keen or just looking for a cure for insomnia, the entire act can be found here. Meanwhile, keep reading for a handy summary

Does the Dangerous Dogs Act affect landlords?

Would you know a dangerous dog if you saw one? Most tenants wouldn?t?and who can blame them. You may think the huge black snarling beast with the sharp teeth next door is a dangerous dog but the law probably disagrees. How can the Dangerous Dogs Act help?

The problems caused by dangerous dogs remains a topical issue and a controversial one. I?ve often had calls from landlords, who in turn have had calls from their tenants or other residents in the area - ?The new

Gift Aid Declarations for Charities

Charities will no longer have to obtain signed gift aid declarations on the first ?5,000 of small donations per year in order for those donations to qualify for the tax relief, Chancellor George Osborne announced in his Budget speech.

Gift aid will be automatically applied to the donations. Osborne said 100,000 charities would benefit from this to the tune of ?240m. The announcement was the first of a number of major new initiatives affecting charities which Osborne described as ?the most radical reforms to charitable

Legal Rights in Scotland Reviewed by the Scottish Government

Following a recent review, the Scottish Government announced they will not be seeking to remove the distinction between the types of property for the purposes of calculating legal rights. The Scottish Law Commission proposed to amend the calculation of legal rights to take into account the deceased?s entire estate both heritable (land and buildings) and moveable (cash, money in the bank, shares, furniture, cars, jewellery and other personal effects).

What are legal rights?

Legal rights mean that a deceased person cannot entirely disinherit family members.

Raising Applications Where the Tenant's Location is Unknown

In an earlier blog we discussed the benefits of the new abandonment ground contained within the Private Housing (Tenancies) (Scotland) Act 2016.

Ground 10 states;

?It is an eviction ground that the tenant is not occupying the let property as the tenant?s home?.

This ground is only applicable to private residential tenancies.

A practical difficulty now anticipated in connection with this ground relates to service difficulties in the application for eviction.

The First-tier Tribunal for Scotland (Housing and Property Chamber) arranges service of the eviction

Disability Discrimination: a Defence to Eviction

Registered Social Landlords will be all too familiar with the reasonableness defences available to tenants facing eviction in the Sheriff Court. However, they may be less aware of an additional defence under the Equality Act 2010 which is increasing in frequency

15 (1) of the Equality Act 2010 (the Act) provides:

?A person (A) discriminates against a disabled person (B) if? (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a

ROOF MAINTENANCE AND SKYLIGHTS

Are skylights and velux windows part of the roof?? In the case of Waelde -v- Ulloa the Sheriff decided they were not.? A single dwellinghouse in Edinburgh had been converted into three flats ? top, middle and bottom.? The top floor owner carried out roof repairs and sought to claim a share of the maintenance costs from his downstairs neighbours.? The middle floor proprietor agreed to pay for the roof but challenged that he was not liable for repairs to the skylight or the felt

Is rent in advance a tenancy deposit?

In the recent English case of Johnson and Ors v Old, Mrs Old paid 6 months rent in advance. Mrs Old subsequently claimed as her defence to repossession proceedings that the advance payment constituted a deposit and should therefore have been paid into a tenancy deposit scheme.

The definition of a deposit under English law is similar to Scots Law, namely:-

"any money intended to be held . . . as security for

(a) the performance of any obligations of the tenant, or

(b) the