The first decision of the Upper Tribunal for Scotland, which hears appeals from the First-tier Tribunal for Scotland (Housing and Property Chamber) has provided useful guidance on the definition of a "homeowner" under the Property Factors (Scotland) Act 2011.
The decision of Shields and Blackley -v- Housing and Property Chamber, applies a wide definition of homeowner to include those who no longer own the property in question.
Background to the case
Dr David Shields and Alan Blackley were homeowners at the time of an alleged breach by their property factors of the Property Factors Code of Conduct, but subsequently moved out of their properties. Dr Shields and Mr Blackley then each made an application to the First-tier Tribunal, which has replaced the functions of the Homeowner Housing Panel, for a determination against their respective property factors.
Section 17 of the Property Factors (Scotland) Act 2011 states that "a homeowner" may apply to the First-tier Tribunal for determination of whether a property factor carried out their duties and complied with the Property Factors Code of Conduct. Section 10(5) of the 2011 Act defines "a homeowner" as an owner of land used for residential purposes, the common parts of which are managed by a property factor or an owner of residential property adjoining or neighbouring land which is managed or maintained by a property factor and which is available for use by the owner.
The First-tier Tribunal rejected the applications of Dr Shields and Mr Blackley on the basis that neither was any longer a homeowner in respect of the property which was the subject of their complaint and, on a strict interpretation of the legislation, the applicants therefore had no right to apply to the First-tier Tribunal for a determination against their former property factors. The First-tier Tribunal's decisions in these cases were appealed to the Upper Tribunal.
The Decision and Reasoning of the Upper Tribunal
The Upper Tribunal upheld the appeal and allowed Dr Shields' and Mr Blackley's applications to continue. The Upper Tribunal determined that "there is no logical or practical reason why the legislator should have granted to current homeowners a remedy for past breaches whilst denying the same remedy to persons who happen to have sold their property after the failure complained off occurred". The Upper Tribunal considered that one of the main purposes of the 2011 Act was to resolve disputes between homeowners and property factors and therefore the definition of a "homeowner" should include those who have sold their property since the alleged failure by the property factor occurred.
Impact on Property Factors
This decision applies a wide definition to who is considered a homeowner under the 2011 Act. Property factors must therefore be aware that both current and former homeowners can apply to the First-tier Tribunal for determination of their complaint. In other words, a person is not excluded from raising a case against a property factor merely because that person no longer owns the property which was managed by the property factor.
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