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Homeowners can use Factors Act remedies even after sale

4 August 2017

Homeowners should not be barred from using the remedies in the Property Factors (Scotland) Act 2011 just because they have since sold their property, the Upper Tribunal for Scotland has ruled in its first judgment issued in a chamber appeal under the new tribunals structure.

Sheriff Anthony Deutsch allowed appeals by Dr David Shiels and Alan Blackley against decisions of the Housing & Property Chamber of the First-tier Tribunal rejecting their applications under s 17 of the Act. The chamber had proceeded on the basis that the section opens with the words "A homeowner may apply", and when the applications were made neither applicant still owned the property in question. 

Sheriff Deutsch said the chamber had adopted "a very literal, non-purposive interpretation". It was clear that the Act intended to make provision for resolution of disputes between homeowners and property factors, and end the "free-for-all" under which factors were unregulated and disputes could only be conducted through the courts.

"There is no logical or practical reason why the legislature should have granted to current homeowners a remedy for past breaches while denying the same remedy to persons who happen to have sold their property after the failure complained of occurred", he commented. "That would be at odds with its policy of making provision for dispute resolution."

He pointed out that the literal interpretation produced an absurdity, in that complaints about failures to comply with the property factors code of conduct would not be justiciable in the sheriff court. There were various likely situations in which the chamber's approach would lead to "an unworkable or impracticable result".

The sheriff concluded: "I consider that properly construed, s 17(1) of the 2011 Act requires only that the applicant should have been a homeowner at the itme of the alleged failure on the part of the property factor." He quashed the First-tier Tribunal's decisions and remitted the cases to it to proceed.

Click here to access the decision.

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