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Scottish Letting Day 2019 - Biosphere Green

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Scottish Letting Day 2019 - Biosphere Green

  1. 1. Scottish Letting Day 2019 Conference and exhibition 12 November 2019 Sponsors: Scottish Letting Day Biosphere Green sessions
  2. 2. Scottish Letting Day John Blackwood introduction video Sponsors: Scottish Letting Day
  3. 3. Getting it right with sales and acquisitions of letting agencies Douglas Collingham, TC Young Solicitors Scottish Letting Day Scottish Letting Day 2019
  4. 4. Sessions now available to attend Scottish Letting Day Biosphere Green (current room): Tribunal know how for letting agents Biosphere Blue: Understanding the private residential tenancy Ozone: Demystifying legionella & A year in the life of a tenancy deposit scheme Showdome: Top tips from a self-made property investor 4D Cinema: Informing research to shape the future of private renting Salisbury Suite: The role of the CMA in regulating letting agents
  5. 5. Tribunal know how for letting agents Claire Mullen, TC Young Solicitors Scottish Letting Day Scottish Letting Day 2019
  6. 6. First-tier Tribunal know-how for letting agents Claire Mullen TC Young Solicitors
  7. 7. FTT-HPC “new” jurisdictions 1 December 2017 Housing (Scotland) Act 2014 transferred jurisdiction from sheriff court to FTT-HPC in respect of “actions arising from tenancies and occupancy agreements” in: • regulated tenancies • part VII contracts • assured tenancies
  8. 8. FTT-HPC jurisdiction • civil proceedings arising from a private residential tenancy • payment actions in all tenancy regimes • letting agent code of practice • landlord registration disputes
  9. 9. Repossession routes to recovery of possession of a property Different depending on type of tenancy: • Short Assured Tenancy – 2 routes • Assured Tenancy – 1 route • Private Residential Tenancy – 1 route
  10. 10. Routes • SAT – NTQ and Section 33(1)(d) Notice (served RD or sheriff officer) • Assured Tenancy – AT6 provided a ground of repossession narrated in tenancy agreement • PRT – NTL based on grounds
  11. 11. How do I raise a Tribunal action? • jurisdiction for eviction and payment in Assured/SAT and regulated tenancy actions transferred from sheriff court to First-tier Tribunal (Housing and Property Chamber) on 1 December 2017 • eviction actions must be raised as a form E • payment actions must be raised as a form F • you cannot claim expenses unless exceptional circumstances apply • no upper limit on arrears • overriding objective
  12. 12. Making an application: the paperwork for eviction • complete form E • lodge with Tribunal office (no fee) • include required attachments • application received by Tribunal
  13. 13. Required attachments for SAT application Rule 66 • name, address and registration number (if any) of the landlord/name, address and profession of any representative of the landlord • name and address of the tenant
  14. 14. Required attachments for SAT application cont. Rule 66 The tenancy agreement (if available) or, if this is not available, as much information about the tenancy as the landlord can give; – AT5 – Section 33 notice (inc. evidence of service) – Notice to Quit (inc. evidence of service) – Section 11 notice of the Homelessness (Scotland) Act 2003 (inc. evidence of service)
  15. 15. Required attachments for AT application Rule 65 • name, address and registration number (if any) of the landlord/name, address and profession of any representative of the landlord • name and address of the tenant
  16. 16. Required attachments for AT application cont. Rule 65 The tenancy agreement (if available) or, if this is not available, as much information about the tenancy as the landlord can give; – AT6 (inc. evidence of service) – Notice to Quit (if applicable) (inc. evidence of service) – evidence that the possession ground or grounds has been met – Section 11 notice of the Homelessness (Scotland) Act 2003 (inc. evidence of service)
  17. 17. Required attachments for PRT application Rule 109 • name, address and registration number (if any) of the landlord/name, address and profession of any representative of the landlord • name and address of the tenant • the ground(s) for eviction
  18. 18. Required attachments for PRT application cont. Rule 109 • evidence showing that the eviction ground or grounds has been met; – Notice to Leave (inc. evidence of service) • the tenancy agreement (if available) or, if this is not available, as much information about the tenancy as the landlord can give; – Section 11 notice of the Homelessness (Scotland) Act 2003 (inc. evidence of service)
  19. 19. The paperwork for payment • complete form F • lodge with Tribunal office (no fee) • include required attachment • application received by Tribunal
  20. 20. Required attachments for payment application Rule 70 or 111 • name and address of the landlord • name and address of the tenant/guarantor • reason for making the application – payment of debt • evidence to support the application (tenancy agreement and rent statement (not bank statements)) • a copy of any relevant documents • damages claim – check in/out inventories, receipts for costs incurred
  21. 21. The process • application acknowledged • passed to president/legal member for sift • decision made as to whether application should proceed • either rejected, referred to Tribunal or request for further information
  22. 22. The process cont. If proceeds to a Tribunal • notice given to all parties • written representations requested from other party • may issue “directions” • Case Management Discussion assigned
  23. 23. Case Management Discussion (CMD) • one legal member sitting alone • identify what facts are agreed between the parties • raising with parties any issues it requires to be addressed • discuss whether or not a hearing is required • Tribunal empowered to grant order at CMD • discuss what witnesses, documents and other evidence will be required
  24. 24. Case Management Discussion (CMD) options • does the Tribunal have discretion? • are relevant facts in dispute? • continuation to further CMD • fix a hearing • grant the orders/dismiss the application
  25. 25. Defended actions: preparing for a hearing Timescales • no less than 14 days notice to be given to parties • documentary evidence and List of Witnesses to be lodged 7 days prior to hearing • heard by 2 Tribunal members – legal member is chair
  26. 26. Defended actions: preparing for a hearing • both parties given opportunity to prove their case • evidence can be led, i.e. witnesses, documentation • Tribunal will make a decision once evidence is heard from parties
  27. 27. What happens once eviction order is granted? • under usual circumstances, extract order sent out after expiry of 30 day appeal periods • service of Charge for Removing – 14 days notice of eviction • instruct sheriff officers to carry out the eviction • change of locks • all incurred costs payable by the landlord
  28. 28. What happens once payment order is granted? • under usual circumstances, extract order sent out after expiry of 30 day appeal periods • was Time to Pay granted? • service of Charge for Payment – 14 days • instruct sheriff officers to carry out various forms of diligence
  29. 29. Evidence at hearings • documents to be lodged 7 days in advance • can lodge late with permission of FTT • witnesses should be listed in advance
  30. 30. Decisions at hearings • majority vote but chair has casting vote • decisions must be in writing • statement of reasons to be given if requested in eviction cases • if decision not unanimous chair must also give a note on minority view
  31. 31. Examples of eviction decisions made by FTT • have been hundreds of applications made • have been hundreds granted • however… beware… nothing is certain!!!
  32. 32. Hall v Beattie • hearing 11 September 2018 • eviction action • all in order except section 11 notice • named person was not tenant • Tribunal held notice was mandatory • allowed adjournment for re-service in correct form
  33. 33. Patience v Owens • eviction action • CMD 6 June 2018 • Short Assured Tenancy • NTQ served by sheriff officers • no section 33 notice • landlord unaware it was needed • application dismissed
  34. 34. Royal College of Surgeons v Murray • eviction application • based solely on AT6 procedure • Ground 8 eviction • CMD 22 June 2018 • no specification of grounds in part 3 of AT6 • FTT held AT6 invalid and dismissed application
  35. 35. Scotcrafts Leasing v Kajaks • eviction case • CMD 23 August 2018 • NTQ and section 33 hand delivered on 28 December 2017 • tenant accepted he had received them • FTT held service invalid and application dismissed
  36. 36. Appeals • appeal to Upper Tribunal • on point of law only • requires leave of the FTT • must seek leave within 30 days of receiving decision • if leave refused, applicant can ask for leave from Upper Tribunal • also a “review” process
  37. 37. Letting agent complaints • 1 January 2018 Letting Agent Code of Practice took effect • landlord/tenants(inc. former)/Scottish Minister can make a complaint to the Tribunal for failure to comply with the Code • complainer must first notify the agent in writing to permit the agent time to resolve the complaint • if complainer remains dissatisfied can raise the complaint with the Tribunal
  38. 38. What to expect if complaint made to Tribunal • cover letter from Tribunal with bundle of documents • letter will inform of deadline date to make written representations in response • letter will inform of hearing date and who will be conducting the hearing • made up of two members – legal member is chair
  39. 39. Written representations • consider these carefully • only respond to the issues raised by the applicant • respond concisely to each individual allegation made • assert your position • lodge documentation with your written representations that demonstrates your position
  40. 40. Case study… Paragraph 124 “You must ensure clients’ money is available to them on request and is given to them without unnecessary delay or penalties, unless agreed otherwise in writing (for example to take account of any money outstanding for agreed works undertaken).” You accept you did not provide the landlord with the full 6 months and instead issued it on a monthly basis. This is in accordance with your handling client money procedures and stated in your management agreement.
  41. 41. Case study… Suggested response The applicant complains that the respondent breached paragraph 124 of the Code. This paragraph requires the respondent ensure clients’ money is available to them on request. It is the respondent’s position that they have complied with paragraph 124 of the Code. Reference in this regard is made to clause X of the management agreement which provides advance rent will be held by the agent and paid to the landlord on a monthly basis.
  42. 42. The hearing • if you have responded in full in your written representations you can adopt these at the hearing • the Tribunal members may ask you to elaborate on certain points made in your written representations • where your written representations are not specific or fail to answer the application you can expect the Tribunal members to ask those difficult questions
  43. 43. After the hearing • the Tribunal members will issue a decision usually within around 4 weeks • where the Tribunal decides that the letting agent has failed to comply, it must issue an order (a “letting agent enforcement order”) requiring the agent to take such steps as the Tribunal considers necessary to rectify the failure
  44. 44. The LAEO • must specify the period within which each step must be taken • may provide that the letting agent must pay to the applicant such compensation as the Tribunal considers appropriate for any loss suffered by the applicant as a result of the failure to comply
  45. 45. Failure to comply with LAEO • an agent who, without reasonable excuse, fails to comply with a letting agent enforcement order commits an offence • summary conviction to a fine not exceeding £1,000
  46. 46. Questions? Claire Mullen: cag@tcyoung.co.uk www.tcyoung.co.uk Read our blog: www.tcyoung.co.uk/blog Follow us on Twitter: @TCYLetLaw
  47. 47. Sessions now available to attend Scottish Letting Day Biosphere Green (current room): Letting question time Biosphere Blue: Unwrapping the energy performance certificate Ozone: Changing the referencing process forever (Vouch) & What’s next? (PayProp) Showdome: Working positively with Universal Credit 4D Cinema: A guide to completing your tax return Salisbury Suite: Preventing HR headaches
  48. 48. Letting question time Gail Bowden and Caroline Elgar, Scottish Association of Landlords Scottish Letting Day Scottish Letting Day 2019
  49. 49. SAL advice line • over 9,000 calls per year • 58% from agents and 42% from landlords • 18% about starting a tenancy • 33% about ending a tenancy • 17% repairs and safety requirements • 13% letting agent issues
  50. 50. Can I bury my dog in the tenant’s garden?
  51. 51. Contact us: Scottish Association of Landlords (SAL) tel: 0131 564 0100 email: advice@scottishlandlords.com www.scottishlandlords.com/resources
  52. 52. Scottish Letting Day 2019 Lunch is now served in the Stratosphere area Programme resumes 13.15pm Please visit our exhibitors’ stands Scottish Letting Day Sponsors:
  53. 53. Scottish Letting Day Conference and exhibition 12 November 2019 Sponsors: Scottish Letting Day Tweet #LettingDay
  54. 54. Digital first impressions: How do you measure up on LinkedIn? Miles Duncan, LinkedIn Success Systems Scottish Letting Day Scottish Letting Day 2019
  55. 55. Your Network Is Your Net-worth
  56. 56. Your Free eLearning Course https://learnonline.linkedinsuccesssystems.co.uk/courses/team-training-SSI
  57. 57. 95%
  58. 58. www.linkedin.com/sales/ssi How well do you perform? Check out your LinkedIn Social Selling Index [SSI] right now
  59. 59. Establishing your professional brand Finding the right people Engage with insights Build relationships
  60. 60. 90 Challenge 25% 22% 20% 24% 1% 1% 91%
  61. 61. 4
  62. 62. 4
  63. 63. Professional persona
  64. 64. 4
  65. 65. 4 seconds. The time you have
  66. 66. Very Large Database
  67. 67. 26m
  68. 68. The LinkedIn Flywheel
  69. 69. Step 1 Clarify your brand for LinkedIn
  70. 70. Profile – The Why Your professional website First DIGITAL presentation of YOU – Digital handshake Start Building Emotional Cues: Trust, Credibility, Approachable, Likeable Are YOU what I am looking for? Do you solve my problems (external vs Internal)? Are you my guide? Do you have a plan? Can I trust YOU? Help me to take action? What does success look like? Transform me to that place Formulate opinion – you’re not present LinkedIn won’t work with out a Fully Optimised Profile Vetted In or Vetted Out in
  71. 71. Step 2 Name Background Banner
  72. 72. Canva.com Custom dimensions 1584 X 396
  73. 73. Step 3 Your Photo
  74. 74. Step 4 Contact Information
  75. 75. What about 2nd & 3rd Degrees ? About & Current Experience ✉ ☎
  76. 76. Embed in main profile Insert at the base of the About & Experience
  77. 77. Step 5 Your Headline
  78. 78. The most important field Misunderstood Google reads this field Keywords Headline
  79. 79. Headline 120 characters desktop 200 characters mobile
  80. 80. Headline Or a … positioning Statement (+title)
  81. 81. What ‘Terms’ and/or ‘Phrases’ are people using in Google to find you? or a Positioning Statement 120 Spaces… make the first 70 spaces a priority LinkedIn Expert Trainer●CPD LinkedIn Corporate, Prof Services & SME’s Training●Edinburgh●Glasgow● London●Dubai●HK●Paris ●Accounting Business Development Partner ● SME Specialist Accounting, Tax and Advisory Solutions ● Edinburgh ● Glasgow Enabling Business & Personal Growth✔Recruitment Expert✔Finance & Executive Search Specialist✔Edinburgh✔Glasgow✔Belfast ★High Net Worth Household Insurance Broker★Private Client Insurance★Fine Art, Jewellery & Collections Insurance Expert★ ★ R&D Tax Credit Experts ★ Assisting Innovative Scottish Businesses reduce Corporation Tax or get cash back from HMRC
  82. 82. Steps 6 & 7 About and Experience
  83. 83. Visible three lines, KeyWords Aligned,VP, KeyWords Contact Info, CTA Web pages, PDF,Video Identify their challenges Then explain how you are the solution XY Z
  84. 84. Y Z X Who do you help? What do you help them with? To achieve what?
  85. 85. Title + 100 KeyWords Aligned,VP, KeyWords Contact Info, CTA Web pages, PDF,Video Your services Explain how you add value to their business People buy clarity
  86. 86. Use your media links tactically
  87. 87. No.2: Background Banner No.3: Photo No.5: Headline No.6; About ‘top XYZ’ + Media x 6 or 2 No.4: Contact Info
  88. 88. Who are you? Are you an expert? Do you understand my business? Do you know my challenges? My needs are X… do you have solutions? Can I contact you? Do you look friendly and approachable? Can I trust you? Show me credibility? Validation? Client successes? Are we aligned? Are you colleagues aligned? Is you business aligned to mine?
  89. 89. Sessions now available to attend Scottish Letting Day Biosphere Green Property insurance – The top secrets to ensure that you have (current room): the correct cover in place Biosphere Blue: A guide to completing your tax return Ozone: Support towards meeting minimum energy efficiency standards & Freeing up time for landlords and letting agents Showdome: Understanding the private residential tenancy 4D Cinema: How to survive rent controls and the buy to let backlash Salisbury Suite: Preventing HR headaches
  90. 90. Property insurance – The top secrets to ensure that you have the correct cover in place Steve Cox, Alan Boswell Group Scottish Letting Day Scottish Letting Day 2019
  91. 91. landlords@alanboswell.com alanboswell.com/landlords Landlord insurance Protect your future
  92. 92. Steve Cox I’ve been working in insurance with Alan Boswell Group for 28 years, and with landlords since 1995. I work with landlord associations and agents across the country, and spend a lot of time travelling to meet up with portfolio property owners. I’ve written several articles in property and landlord publications. Business Account Manager 01603 218031 07766 715654 scox@alanboswell.com
  93. 93. landlords@alanboswell.com alanboswell.com/landlords • established in 1982 • 370 staff over 10 locations • Independent Broker Of The Year (2015- 2016) – Insurance Times Award • Best Landlord Insurance Provider 2018 • A top 15 independent broker (Insurance Age, 2017 Top 100) • outstanding service scores 4.8 out of 5 on FEEFO
  94. 94. • the insurance you require • the variety of products we offer • our service • how we price our products • the risks you may face landlords@alanboswell.com alanboswell.com/landlords Objective of today
  95. 95. • unoccupied properties • malicious damage by tenant/cultivation of drugs • non payment of rent • subletting • serviced accommodation • policy conditions/policy excess/underinsurance/disclosure landlords@alanboswell.com alanboswell.com/landlords
  96. 96. We would all love our trouble-free tenants to stay forever, but when the average length of a tenancy is under a year, the chances are you will have untenanted periods. Your cover while your property is unoccupied could be limited to 90 days or might become immediately restricted. Some insurers won’t change your cover, but will increase your premiums. landlords@alanboswell.com alanboswell.com/landlords Understanding unoccupancy rules
  97. 97. Malicious damage by a tenant is surprisingly common. When comparing policy details, look for malicious damage cover. Make sure you’re clear about whether this is included before you buy a policy. Also remember ‘lifestyle’ type damage is not classed as malicious. Manufacture of drugs covers you in the event that a tenant damages your property through drug production. Cannabis farms, for example, can lead to the destruction of property. Failure to insure against this could destroy your investment. landlords@alanboswell.com alanboswell.com/landlords Malicious damage and manufacture of drugs
  98. 98. landlords@alanboswell.com alanboswell.com/landlords If your property suffers a claim, most landlord products should include cover to provide an income while the property is uninhabitable. If your insurance policy does not include this, you could end up out of pocket as the result of a claim. You might also want cover for the cost of alternative accommodation for tenants (if the property is temporarily uninhabitable). Loss of rent
  99. 99. landlords@alanboswell.com alanboswell.com/landlords A tenancy agreement in place means the landlord has carried out the relevant checks on the tenant and knows exactly who is in the property. If the tenant sublets the property, the landlord has lost control over who is housed in the property and any potential claim could be declined. It’s important to carry out regular checks on the property so you know who is in the property. If you are aware of subletting, make sure you tell your insurer/broker. What if my tenants sublet?
  100. 100. landlords@alanboswell.com alanboswell.com/landlords What about serviced accommodation?Landlord insurance doesn’t automatically cover serviced accommodation when properties or rooms are let on a per- night basis. Holiday let insurance or serviced accommodation insurance might be more appropriate for you.
  101. 101. landlords@alanboswell.com alanboswell.com/landlords Underinsurance Ensure your rebuild costs are up to date. Rebuilding value NOT market value! http://calculator.bcis.co.uk
  102. 102. landlords@alanboswell.com alanboswell.com/landlords Disclosure Disclose all information to insurers. Insurers set their rates based on information provided by you. Non-disclosure is a reason to avoid not only a claim but an entire policy.
  103. 103. • address including postcode • construction – walls, roof, floors, age, cladding • property type • previous claims experience/3 or 5 years • tenant type • personal information • unoccupancy • any works being undertaken landlords@alanboswell.com alanboswell.com/landlords Disclosure Main rating factors
  104. 104. • malicious damage caused by the tenant • carpets, curtains & white goods • 90 days full policy cover between lets • loss of rent or alternative accommodation (following a claim) • trace and access • accidental damage • £5m property owners liability • £10m employers liability • extend or add home emergency, legal, rent guarantee/excess protection. landlords@alanboswell.com alanboswell.com/landlords Alan Boswell Group Landlord Insurance
  105. 105. landlords@alanboswell.com alanboswell.com/landlords You have a duty of care and potential liability for injuries in and around your property. Examples: • tenant trips on a loose tile, section of worn carpet or uneven step • roof tile falling from a roof and hitting a passer-by on the head (note: not just the tenant). £1m per property is not going to be enough. HMOs and smaller blocks of flats you need to consider £5m minimum. We cover up to £5m per property, as standard. Property owner’s liability
  106. 106. landlords@alanboswell.com alanboswell.com/landlords Legal expenses If a tenant defaults on their rent, or refuses to vacate the property, immediate help is available. • cover for £100,000 of legal expenses (including eviction costs) • general disputes relating to tenancies • repair and renovation disputes • health and safety prosecutions • cover for HMOs and student lets • recovery of unpaid rent by a tenant • tax investigation cover
  107. 107. landlords@alanboswell.com alanboswell.com/landlords Rent guarantee Our comprehensive policy covers rental income in the event of non-payment, and any legal expenses you may face for issues such as eviction. • rental income cover up to £25,000 • legal expense helpline 24/7 • access to online health & safety documents • up to 12 months’ cover • full landlord legal expenses up to £100,000 • cover for HMOs and student lets
  108. 108. landlords@alanboswell.com alanboswell.com/landlords Home emergencyHome emergency cover for landlords is vital in a crisis. We, with Intana Insurance, provide swift and effective assistance in a domestic emergency. • boiler breakdown cover • cover for complete failure or breakdown of electricity or gas supply • cover for the infestation of vermin • up to £100 for alternative accommodation • burst pipes and drainage • 24/7 emergency helpline • unlimited number of claims (£500 per claim) • UK-based call centre
  109. 109. EXCESS PROTECTION landlords@alanboswell.com alanboswell.com/landlords Excess protection This cover reimburses you for the cost of your policy excess in the event of a claim. It works alongside your normal property owner’s insurance policy and will cover the cost of your excess up to a pre-agreed limit. • available from £30 a year • maximum cover limit of £3,000 • easier to manage excess costs • use on multiple claims • high cover limits • UK-based advisers
  110. 110. We guarantee to beat your existing premium* landlords@alanboswell.com alanboswell.com/landlords * Terms apply. See www.alanboswell.com/terms or call for full details. Price guarantee only applies where existing cover is held.
  111. 111. Thank you for listening. Any questions?
  112. 112. Scottish Letting Day 2019 Refreshments are served in the Stratosphere area Programme resumes 15.15pm Please visit our exhibitors’ stands Scottish Letting Day Sponsors:
  113. 113. Scottish Letting Day Conference and exhibition 12 November 2019 Sponsors: Scottish Letting Day Tweet #LettingDay
  114. 114. The role of the CMA in regulating letting agents Cecilia Parker Aranha and Lucy Stone, Competition and Markets Authority Scottish Letting Day Scottish Letting Day 2019
  115. 115. Consumer protection law for lettings Cecilia Parker Aranha Director, Consumer Protection Scottish Letting Day, 12.11.19 195
  116. 116. Unfair practices 196
  117. 117. Unfair terms 197 “A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.”
  118. 118. Transparency 198
  119. 119. Case studies 199
  120. 120. Consumer protection law for lettings Cecilia Parker Aranha Director, Consumer Protection Scottish Letting Day, 12.11.19 200
  121. 121. Lucy Stone Senior Intelligence Officer - Intelligence and Investigations Team Cartels - lifting the lid on anti-competitive conduct
  122. 122. What is a cartel? Price fixing Market sharing Bid-rigging Agreeing with competitors what price you will charge to avoid having to compete with each other. Agreeing with other businesses how much you will bid in a tender, and who will have the lowest bid so that they win the contract. Agreeing not to go after a competitor’s customers, or deciding which territories each business will ‘take’. Also: • Sharing sensitive information
  123. 123. 203 Enforcement consequences ● Director disqualification for up to 15 years ● Civil enforcement - fines on businesses of up to 10% of turnover - liability to be sued for damages (‘follow on’ action) ● Criminal Enforcement - up to 5 years in prison - unlimited fines ● Reputational Damage
  124. 124. 204 Somerset estate agents case p p p ● 6 local agents met to “have a chat about fees…” ● price-fixing – agents agreed to set a minimum commission rate for residential sales of 1.5% ● agents took turns to ‘police’ the cartel ● 5 estate agents were fined. 6th agent received immunity from fines as it was the first to confess under the CMA’s leniency policy; 2 received a reduction in fines under the leniency policy ● 2 CDUs secured in April 2018 ● court proceedings seeking disqualification of 2 further directors commenced in April 2019 ● provided they continue to comply with the terms of leniency, the CMA will not seek the disqualification of the co-operating directors of 3 of the estate agents which benefitted from leniency.
  125. 125. 205 Reputation “…For too many years now the area has been driven by agents simply quoting low fees…”
  126. 126. 206 Evidence “…For too many years now the area has been driven by agents simply quoting low fees…”
  127. 127. 207 Evidence “…For too many years now the area has been driven by agents simply quoting low fees…”
  128. 128. If you have information about a cartel (e.g. price-fixing, market-sharing, bid- rigging) but are not directly involved If you think you may have been involved in something illegal, you may escape fines or sanctions if you come to us first How to report to us Report via our new online reporting form or email: cartelshotline@cma.gsi.gov.uk bit.ly/ReportACartel Stop Cartels campaign page www.gov.uk/stopcartels explains what cartels look like in practice
  129. 129. Now let’s see what you’ve learned… 209
  130. 130. It can be illegal to attend a meeting with employees from other businesses where price is discussed. ● True or false? 210
  131. 131. As a customer, it's ok to tell suppliers the prices that other suppliers are quoting you. ● True or false? 211
  132. 132. It's ok to agree with competitors not to sell below a minimum price to help protect your profit margin. ● True or false? 212
  133. 133. Businesses can agree not to sell to the same customers as each other. ● True or false? 213
  134. 134. Price fixing is a criminal offence and can lead to imprisonment. ● True or false? 214
  135. 135. In a competitive tender, it's ok to discuss what prices you intend to quote with competing bidders. ● True or false? 215
  136. 136. Competing businesses can agree between them what territories they will operate in. ● True or false? 216
  137. 137. A business that has a dominant market position has a special responsibility not to behave in ways that unfairly squeeze out their rivals. ● True or false? 217
  138. 138. Admitting your involvement in a cartel can lead to immunity from penalties. ● True or false? 218
  139. 139. How much can businesses be fined for breaking competition law? ● up to £100,000? ● up to £1 million? ● a year’s worth of profit? ● up to 10% of turnover? 219
  140. 140. Sessions now available to attend Scottish Letting Day Biosphere Green (current room): Tribunal know how for landlords Biosphere Blue: Taster training for letting agents – meaningful CPD Showdome: Informing research to shape the future of private renting 4D Cinema: Working positively with Universal Credit Salisbury Suite: Digital first impressions: How do you measure up on LinkedIn?
  141. 141. Tribunal know how for landlords Claire Mullen, TC Young Solicitors Scottish Letting Day Scottish Letting Day 2019
  142. 142. First-tier Tribunal know-how for landlords Claire Mullen TC Young Solicitors
  143. 143. First-tier Tribunal Housing and Property Chamber • brought into existence on 1 December 2016 • replaced Homeowner Housing Panel and Private Rented Housing Panel • assumed their existing jurisdiction for repairing standard cases and property factoring issues
  144. 144. FTT-HPC “new” jurisdictions 1 December 2017 Housing (Scotland) Act 2014 transferred jurisdiction from sheriff court to FTT-HPC in respect of “actions arising from tenancies and occupancy agreements” in: • regulated tenancies • part VII contracts • assured tenancies
  145. 145. FTT-HPC jurisdiction • civil proceedings arising from a private residential tenancy • payment actions in all tenancy regimes • letting agent code of practice • landlord registration disputes
  146. 146. Repossession routes to recovery of possession of a property Different depending on type of tenancy: • Short Assured Tenancy – 2 routes • Assured Tenancy – 1 route • Private Residential Tenancy – 1 route
  147. 147. Short Assured Tenancies and the non-breach route • landlord has the right to compulsory repossession of the property under Section 33 (1)(d) of the Housing (Scotland) Act 1988 • such an eviction action cannot be defended (as long as notices have been validly served and are in the correct form/equality act defence!) • NTQ and Section 33(1)(d) notice (served RD or sheriff officer) • NTQ must tie in with the ish date • Section 33(1)(d) notice must give at least 2 months notice • no need to wait ‘til ish – breach route is also available
  148. 148. Assured Tenancies and the breach route • must have a ground of repossession under Schedule 5 of the Housing (Scotland) Act 1988 narrated in tenancy agreement • following service of an AT6 detailing said ground and details of the breach • AT6 allows Tribunal action to be raised either after 14 days or 2 months from date of service of AT6 (depending on the ground relied upon) • AT6 expires after 6 months
  149. 149. The breach route cont. • Tribunal application made on AT6 does not entitle you to repossession • tenant is entitled to defend the action • main breach grounds used are the arrears grounds (Grounds 8, 11, and 12). If relying on Ground 8 (3 months in arrears) and it is undefended, you are entitled to repossession • all other main grounds, you must show the Tribunal that it is reasonable to evict in all the circumstances
  150. 150. Private Residential Tenancies (PRT) • must have a ground of repossession under Schedule 3 of the Private Housing (Tenancies) (Scotland) Act 2016 • following service of a Notice to Leave (NTL) detailing said ground and details of the ground • NTL allows Tribunal action to be raised either after 28 days or 84 days from date of service of NTL (depending on length of occupation or the ground relied upon) • NTL expires after 6 months
  151. 151. Private Residential Tenancies (PRT) • mix of mandatory/discretionary grounds • tenant is entitled to defend the action. Tribunal still entitled to grant order in certain circumstances • main grounds used are Grounds 1 and 12. If relying on Ground 1 (landlord intends to sell) and it is undefended, you are entitled to repossession. Ground 12 (rent arrears) has mandatory and discretionary elements • where discretion applies, you must show the Tribunal that it is reasonable to evict in all the circumstances
  152. 152. How do I raise a Tribunal action? • jurisdiction for eviction and payment in Assured/SAT and regulated tenancy actions transferred from sheriff court to First-tier Tribunal (Housing and Property Chamber) on 1 December 2017 • eviction actions must be raised as a form E • payment actions must be raised as a form F • you cannot claim expenses unless exceptional circumstances apply • no upper limit on arrears • overriding objective
  153. 153. Making an application: the paperwork for eviction • complete form E • lodge with Tribunal office (no fee) • include required attachments • application received by Tribunal
  154. 154. Required attachments for SAT application Rule 66 • name, address and registration number (if any) of the landlord/name, address and profession of any representative of the landlord • name and address of the tenant
  155. 155. Required attachments for SAT application cont. Rule 66 The tenancy agreement (if available) or, if this is not available, as much information about the tenancy as the landlord can give; – AT5 – Section 33 notice (inc. evidence of service) – Notice to Quit (inc. evidence of service) – Section 11 notice of the Homelessness (Scotland) Act 2003 (inc. evidence of service)
  156. 156. Required attachments for AT application Rule 65 • name, address and registration number (if any) of the landlord/name, address and profession of any representative of the landlord • name and address of the tenant
  157. 157. Required attachments for AT application cont. Rule 65 The tenancy agreement (if available) or, if this is not available, as much information about the tenancy as the landlord can give; – AT6 (inc. evidence of service) – Notice to Quit (if applicable) (inc. evidence of service) – evidence that the possession ground or grounds has been met; – Section 11 notice of the Homelessness (Scotland) Act 2003 (inc. evidence of service)
  158. 158. Required attachments for PRT application Rule 109 • name, address and registration number (if any) of the landlord/name, address and profession of any representative of the landlord • name and address of the tenant • the ground(s) for eviction
  159. 159. Required attachments for PRT application cont. Rule 109 • evidence showing that the eviction ground or grounds has been met; – Notice to Leave (inc. evidence of service) The tenancy agreement (if available) or, if this is not available, as much information about the tenancy as the landlord can give; – Section 11 notice of the Homelessness (Scotland) Act 2003 (inc. evidence of service)
  160. 160. The paperwork for payment • complete form F • lodge with Tribunal office (no fee) • include required attachment • application received by Tribunal
  161. 161. Required attachments for payment application Rule 70 or 111 • name and address of the landlord • name and address of the tenant/guarantor • reason for making the application – payment of debt • evidence to support the application (tenancy agreement and rent statement (not bank statements)) • a copy of any relevant documents • damages claim – check in/out inventories, receipts for costs incurred
  162. 162. The process • application acknowledged • passed to president/legal member for sift • decision made as to whether application should proceed • either rejected, referred to Tribunal or request for further information
  163. 163. The process cont. If proceeds to a Tribunal • notice given to all parties • written representations requested from other party • may issue “directions” • Case Management Discussion assigned
  164. 164. Case Management Discussion (CMD) • one legal member sitting alone • identify what facts are agreed between the parties • raising with parties any issues it requires to be addressed • discuss whether or not a hearing is required • tribunal empowered to grant order at CMD • discuss what witnesses, documents and other evidence will be required
  165. 165. Case Management Discussion (CMD) options • does the Tribunal have discretion? • are relevant facts in dispute? • continuation to further CMD • fix a hearing • grant the orders/dismiss the application
  166. 166. Defended actions: preparing for a hearing Timescales • no less than 14 days notice to be given to parties • documentary evidence and list of witnesses to be lodged 7 days prior to hearing • heard by 2 Tribunal members – legal member is chair
  167. 167. Defended actions: preparing for a hearing • both parties given opportunity to prove their case • evidence can be led, i.e. witnesses, documentation • Tribunal will make a decision once evidence is heard from parties
  168. 168. What happens once eviction order is granted? • under usual circumstances, extract order sent out after expiry of 30 day appeal periods • service of Charge for Removing – 14 days notice of eviction • instruct sheriff officers to carry out the eviction • change of locks • all incurred costs payable by the landlord
  169. 169. What happens once payment order is granted? • under usual circumstances, extract order sent out after expiry of 30 day appeal periods • was Time to Pay granted? • service of Charge for Payment – 14 days • instruct sheriff officers to carry out various forms of diligence
  170. 170. Evidence at hearings • documents to be lodged 7 days in advance • can lodge late with permission of FTT • witnesses should be listed in advance
  171. 171. Decisions at hearings • majority vote but chair has casting vote • decisions must be in writing • statement of reasons to be given if requested in eviction cases • if decision not unanimous chair must also give a note on minority view
  172. 172. Examples of eviction decisions made by FTT • have been hundreds of applications made • have been hundreds granted • however… beware… nothing is certain!!!
  173. 173. Hall v Beattie • hearing 11 September 2018 • eviction action • all in order except section 11 notice • named person was not tenant • Tribunal held notice was mandatory • allowed adjournment for re-service in correct form
  174. 174. Patience v Owens • eviction action • CMD 6 June 2018 • Short Assured Tenancy • NTQ served by sheriff officers • no section 33 notice • landlord unaware it was needed • application dismissed
  175. 175. Royal College of Surgeons v Murray • eviction application • based solely on AT6 procedure • Ground 8 eviction • CMD 22 June 2018 • no specification of grounds in part 3 of AT6 • FTT held AT6 invalid and dismissed application
  176. 176. Scotcrafts Leasing v Kajaks • eviction case • CMD 23 August 2018 • NTQ and section 33 hand delivered on 28 December 2017 • tenant accepted he had received them • FTT held service invalid and application dismissed
  177. 177. Appeals • appeal to Upper Tribunal • on point of law only • requires leave of the FTT • must seek leave within 30 days of receiving decision • if leave refused, applicant can ask for leave from Upper Tribunal • also a “review” process
  178. 178. Questions? Claire Mullen: cag@tcyoung.co.uk www.tcyoung.co.uk Read our blog: www.tcyoung.co.uk/blog Follow us on Twitter: @TCYLetLaw
  179. 179. Scottish Letting Day 2019 Thank you for coming See you next year Sponsors: Scottish Letting Day

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