Resolving Problems with Factors

You should start the process of resolving complaints informally and work through the increasingly formal steps if you need.

Start informally

The first thing to do if you have a problem is to contact your factor and discuss the problem with them.  If a number of owners are affected, it might be worth arranging an owners meeting and asking the factor to attend and discuss how they can resolve the problem and improve their service to you.  This is generally the quickest and easiest way to sort things out, especially those which turn out to be a result of misunderstandings and mis-communication.

It’s always a good idea to keep a note of any conversations or discussions as these will be useful if you find you need to take things further.

If you don’t already have an owners association, this is good time to set one up.

If informal steps don’t resolve the situation, the next step is to use the factors official complaints process.  If there is still no resolution, you can take your case to the First Tier Tribunal

Mediation

Mediators can help owners resolve problems with other owners and with factors.

Find a community mediation service near you.

Factor’s official complaints procedure

Your factor must have a clear complaints procedure set out in the Written Statement.

  • The complaints procedure will require you to put things in writing (or email).
  • It may be a two stage process allowing escalation to Director level in the firm.
  • The complaints procedure must be free to use.
  • It should set out clear timescales for response.

If you don’t get a satisfactory answer from your first complaint, you should ask for your complaint to be taken up a second time by a Director of the factor’s firm.

You can complain about:

  • a common property issue (not individual)
  • a failure in their factoring duties as set out in their Written Statement of Services)
  • where their duties have not been carried out to a reasonable standard or
  • them breaking the Code of Conduct

When you put things in writing, it’s a good idea to follow the format set out for the FFT as this will save you time later.

You can start your first letter with a sentence such as “I wish to use your official complaints procedure to resolve the following problems…”

Your second letter could start with a sentence like “I complained to you on the (date) and have your response.  While some of the complaints have been resolved, I am still unhappy about the following and now wish these complaints to be taken up by your Director (Name if you have it)”  Then copy the relevant parts of your first complaint and add a sentence or two about why you are still unhappy.

If you have fully followed the Factor’s Complaints process but the problem has not been resolved, you can now take your case to the First Tier Tribunal Housing and Property Chamber.

The Housing and Property Chamber

Originally the Home Owner Housing Panel (HoHP) this is is part of the First Tier Tribunal (FTT), an entry point to the Scottish legal system.

Key points to note about the First Tier Tribunal (FTT):

  • you don’t need legal representation.
  • it is free to use.
  • they can require a factor to make changes in practice or pay compensation.
  • hearings are normally fairly informal ,taking place round a table with two or three Tribunal members and probably two representatives from the Factor’s firm present as well as owners
  • the Chair for your hearing will have a legal background and be supported by Tribunal members with surveying, property management or other relevant practical experience.

What can you complain to the FTT about?

You can complain about:

  • a property manager who has failed in their factoring duties (as set out in their Written Statement of Services) or not carried these duties out to a reasonable standard or
  • a property manager who has broken the Code of Conduct

You cannot:

  • complain about individual repairs
  • complain about other owners (see Acting Together)
  • complain about the level of fees charged (but you can complain that you have been improperly billed)  
  • ask the Tribunal to dismiss your factor (see Changing your Factor)
  • ask the Tribunal to change your share of costs or the title deeds (see Changing your Title Deeds)
  • complain about a change in services provided
  • complain about events which occurred before October 2012 (unless the problem continued after then).

See Property Managers for details of the Code of Conduct and who is a Property Manager.

More than one owner with the same problem?

You all need to complain individually, both to the Factor and to the First Tier Tribunal. However, you can all send exactly the same letter each time. 

The FTT may decide to hear just a small sample of cases at a joint hearing and then decide the others in writing. The Chair of the Owners Association could write a covering letter to the FTT suggesting a number of owners who might be willing to speak at a hearing but the final choice will be the FTT’s. Alternatively, each owner can nominate the same person (maybe the Chair of the Owners Association) to represent them.

If you are successful, other owners can make complaints subsequently, following the same procedure.

FTT hearings are held in public so other owners can sit in at your hearing but not speak.

Setting out your case

It’s worth having a look at some past decisions of the FTT’s Housing and Property Chamber.  Some easy ones to follow are:

  • A case where an owner felt the factor had failed to consult owners properly over an increase in works costs ( Code of Conduct Communication and Communication section 2.4)  – basically, the owner said the factor had consulted with wrong person and failed to deal with her requests for information  (Code of Conduct Communication and Communication section 2.5) 
  • A case where an owner complained the factor was failing in their duties because they were not cleaning the common areas properly – she felt she could do a better job herself without being charged.

Your particular problem may have a number of features. Link each of the main features of you complaint to the most relevant clause in Factors Code of Conduct which is set out by the Scottish Government. This can include a failure to carry out duties set out in the Written Statement sent to you by your Factor . You won’t be penalised if it is decided you should have complained under a different clause- just pick the one which seems most relevant to you.

Property Factors Code of Conduct  Scottish Government document with numbered clauses.

For every clause you think the Factor has breached:

  • list the clause number
  • give the facts of the story - the how, what, when, where and why
  • say what impact this has had on you.

In the second stage of using the factors complaints procedure and when approaching the FTT, after each main point, add in what response you have had to your complaints and why you remain dissatisfied.

Housing and Property Chamber application form

Your next step is to download the FTT Housing and Property Chamber application form.

Housing & Property Chamber Template letters and forms

Sections 1 - 6 of the form looks for basic details of addresses and contacts. Section 7 is where you tell your story.

You need to say:

  • which parts of the Code of Conduct (give precise section numbers) you are complaining about
  • which of the factor's duties have not been followed in your case
  • your specific complaint - what went wrong and when; any witnesses; any written evidence or photographs; what the Factor did or didn't do in response to your complaints
  • how this has affected you
  • what would help resolve the problem – an apology, reduction of fees etc

It's most important to back up your story with references to copies of documents. 

Don’t let the form put you off. The panel recognises that you are just an owner and they will let you know if have made any critical mistakes and you can then adjust and resubmit your application.

Download the form

Find an advice centre near you

FTT procedure

Once your application form has been received, the President of the FTT's Housing and Property Chamber has 14 days to “ sift” your application.  Your application could be sifted out if it is:

  • vexatious or frivolous (without sufficient grounds and purely to cause annoyance)
  • you have recently made a very similar complaint
  • a complaint about an issue which has now been resolved
  • you haven’t given the Factor enough opportunity to resolve the dispute.

At this stage, you might be asked to provide more information.

Once you have got through the initial “sift, you will be sent a “Notice of Referral” meaning that you will get a hearing. At this point, you can choose to proceed by written representations alone or to be heard in person.

Generally, people choose to have a hearing as it helps them put their case completely.  But if both you and the property manager agree, the whole case can be decided by written representations.   In this case, both you and the property manager will make written representations and you will both have a chance to comment on each other’s representations before the case is decided.

You should continue to pay your Property Managers bills and liaise with them over repairs while you are going through the hearing procedure.  Both sides are still contracted to one another.

Before the hearing

If you have opted for a hearing, you can request it to take place at a public venue near you. Hearings are normally held in public but you can ask (giving reasons) for the hearing to be held in private. You will be sent a hearing date at least 14 days in advance.  You can write to the Tribunal to ask for more time or to change your representation.

Both parties may ask for or be given “Directions” to produce certain evidence or to bring witnesses or to make “skeleton arguments” if a point of law is being discussed.

You will be asked to send a list of “Productions” at least 7 days in advance of the hearing. "Productions" are any further evidence additional to the original submission.  Give yourself plenty of time to put this together.  You will need to

  • put all the required documents in logical order
  • number each document in order
  • number each page of each document
  • attach a written list of the documents or any other evidence (head this list with the case reference number, names of parties etc)
  • make at least two additional copies
  • add a list of any witnesses you intend to bring

Send one hard copy to the Tribunal and another to the Property Factor or their representative.  Details will be on the forms. You should also give a copy to any helper.  You will be sent a copy of all the Property Factor’s evidence at the same time.

What happens at a hearing?

You do not need legal representation but you can take a helper with you.

Be sure to let the Tribunal know if you decide not to attend or if you or a witness will be delayed.

All papers and evidence (“productions”) should have been circulated at least 7 days in advance.  You may not be allowed to rely on evidence that has been held back.

The hearing is informal – as courts go! Both parties are allowed to make their case – often point by point - and can question what the other side says.

Hearings generally take a few hours and normally start at 10.00.

You will get a decision about four weeks later in writing.

There is a list of upcoming hearings on the Housing and Property Chamber’s website. You can ask to be an observer at a Housing and Property Chamber hearing.  This may help you get better prepared. Contact the Housing and Property Chamber to make your request.

What can the Housing and Property Chamber do?

If the Property Manager is found to have failed to work to the Code of Conduct or failed in their “factoring duties”, the Housing and Property Chamber can make a Property Factor Enforcement Order which may include apologies, compensation and a change of practice in future.  It is a criminal offence for the property manager not to comply with the order.

Appealing

You can appeal a decision made by the Housing and Property Chamber but only on a point of law. Appeals are heard at the Upper Tribunal for Scotland 

Next Steps

More about the Housing and Property Chamber