Appeal By Proven Properties (scotland) Ltd Against A Decision Of The Upper Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Pentland,Lord Drummond Young,Lord Menzies |
| Neutral Citation | [2020] CSIH 22 |
| Date | 12 May 2020 |
| Docket Number | XA112/19 |
| Court | Court of Session |
| Published date | 12 May 2020 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 22
XA112/19
Lord Menzies
Lord Drummond Young
Lord Pentland
OPINION OF LORD MENZIES
in Appeal under section 48 of the Tribunals (Scotland) Act 2014
by
PROVEN PROPERTIES (SCOTLAND) LTD
Appellants
against
A decision of the Upper Tribunal communicated to the appellants on 30 July 2018
______________
Appellants: Kelly; Hughes Dowdall Solicitors, Glasgow
12 May 2020
Introduction
[1] This appeal concerns the proper interpretation of the Property Factors (Scotland) Act
2011, and in particular whether the appellants fall within the definition of “property factor”
provided by section 2 of that Act.
[2] The appellants carry on business as property developers. In 2007 they erected a
building consisting of 15 residential flats. The following agreed background of matters not
in dispute was set out by the Housing and Property Chamber First-tier Tribunal for Scotland
2
in its decision Letter dated 16 February 2018 (it should be noted that in this extract, the
present appellants are referred to as “the respondents”):
“The development at Charlotte Court, 37 East Princes Street is a building consisting
of fifteen flats which were erected in 2007 by Proven Properties (Scotland) Limited.
Marketing of them was adversely affected by the recession. The homeowner
purchased Flat 7 which is on the second floor. The respondents decided to let the
other units and in 2017 another flat was sold. As at the date of the Hearing the
respondents own thirteen of the flats and one is currently being marketed for sale.
The flats were factored by B and B Estate Agents and Property Managers (B and B)
until 19th November 2011 when the respondents took on the management of the
building. The respondents arrange for servicing of the lift, payment of the BT
account in respect of the emergency call function of the lift, cleaning of the common
hallways and stairs, maintenance of the landscaped area, payment of the electricity
account for the common lighting and any necessary repairs and maintenance of the
common parts of the building. Until the insurance renewal date in 2017 the
respondents arranged the common insurance policy for all the flats in the building
including that belonging to the homeowner. The respondents sent various accounts
to the homeowner since 2011 in respect of a one fifteenth share of the costs of all the
matters previously referred to with the exception of matters pertaining to the lift for
which a one thirteenth share of costs was sought. The respondents have never
sought to be paid a factoring or management fee by the homeowner in respect of the
work it has carried out in managing the building. The respondents no longer
arrange property insurance in respect of the homeowner’s flat.”
[3] The matter came before the First-tier Tribunal on an application by the
owner/occupier (“the homeowner”) of one of the flats in the development which had been
sold by the appellants. The homeowner was in dispute with the appellants regarding a
leaking roof, and made an application to the First-tier Tribunal in terms of section 17 of the
2011 Act for determination of whether the appellants had failed to carry out the property
factor’s duties and to ensure compliance with the property factor Code of Conduct. The
appellants disputed that they were property factors in terms of the 2011 Act, and the First-
tier Tribunal considered this point as a preliminary matter. The Tribunal found that the
respondents (ie the present appellants) were property factors in terms of the 2011 Act, and
that the homeowner’s application could proceed to determination on the merits.
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