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2025UT17
UTS/AP/24/0089
UTS/AP/24/0090
UTS/AP/24/0092
DECISION OF
Sheriff Ian Hay Cruickshank
ON AN APPLICATION TO APPEAL
IN THE CASES OF
Ms. Heather Waugh; Ms. Lesley Ross; Mr. Duncan Munro and Ms. Jane Munro
Appellants
- and -
Largiemore Estate Limited
per Aberdein Considine
Respondent
FTS Case Reference: FTS/HPC/PF/22/3577, FTS/HPC/PF/22/3578, FTS/HPC/LM/22/3579
20 March 2025
Decision
Upholds the conjoined appeals; Quashes the decision of the First-tier Tribunal for Scotland
Housing and Property Chamber dated 3 September 2024; Remits the case back to the First-tier
Tribunal to be reconsidered by a differently constituted Tribunal and to proceed as accords.
Introduction
[1]
When in law does an individual become a property factor for the purposes of the
Property Factors (Scotland) Act 2011 ("the 2011 Act")? Does the 2011 Act cover a dwelling house
which is owned but restricted by title conditions to be used only as a holiday home and for a
limited period of annual occupancy? What is the meaning of "residential property" in terms of
the statute? These are the questions which fall to be answered in this appeal.
[2]
The appellants lodged three separate applications with the First-tier Tribunal for Scotland
Housing and Property Chamber ("the FTS") under section 17(1) of the 2011 Act. The appellants
sought a determination as to whether the respondent had failed to comply with property factor
duties. The respondent Company is not registered as a property factor and does not accept that it
falls to be regarded as such. The FTS conjoined these cases, and they remain conjoined for appeal
purposes.
[3]
The matter was determined at a hearing before the FTS where parties agreed the terms of
a Joint Minute in relation to certain facts. As such, no evidence was led and the parties further
agreed that, in the first instance, matters should be restricted to hearing legal submissions as to
whether (a) the respondents fell within the definition of property factor and (b) whether the
applicants fell within the definition of homeowner, both as provided for by the 2011 Act.
[4]
The FTS concluded that it had no jurisdiction to determine the applications. It did so on
the basis that it determined in law the respondent was not a property factor. Separately, the FTS
considered that the properties in question were not "residential" for the purposes of the statute.
[5]
The appellants sought leave to appeal. This was granted by the FTS on 26 September
2024.
Grounds of appeal
[6]
The grounds of appeal are stated as follows:
1. The FTS has misdirected itself in respect of the interpretation of section 2 of the 2011
Act in respect of the meaning of Property Factor.
2. The FTS has misdirected itself in respect of the interpretation of section 2(1)(c) of the
2011 Act in respect of the definition of Property Factor.
3. The FTS has misdirected itself in respect of its interpretation of section 2(1)(c) of the
2011 Act in respect of the meaning to be given to "residential property".
4. The FTS has failed in its duty to construe the 2011 Act purposively to give effect to the
underlying policy objectives.
[7]
In this appeal each of the appellants represented their respective interests. The
respondent was represented by Mr. Sutherland, Advocate
Reasoning of the FTS
[8]
As stated above, the FTS did not hear evidence. It heard parties' submissions and had
before it various productions. It proceeded on a set of agreed facts, and these formed the full
extent of the findings-in-fact as recorded in its written decision. The findings-in-fact are relatively
brief. It is of assistance to replicate these in full using the numeric system employed in the
decision:
i.
The respondents are the owners, under Title Number ARG29330, of land used as a
commercial holiday development known as Largiemore Estate, Otter Ferry,
Tighnabruaich.
ii.
Largiemore Holiday Estate is situated on land immediately adjacent to Loch Fyne and
contains, inter alia, 44 chalets, the solum of each being owned by the owner of the
chalet on which it is built.
iii.
The Largiemore Estate also contains roadways, lay-bys, vehicle parking areas, a boat
parking area and landscaped grounds, all of which are in the ownership of the
respondents.
iv.
The applicants each own one of the 44 chalets.
v.
Each of the chalets is a purpose-built holiday home.
vi.
Each of the applicant's chalets is subject to the terms of a Deed of Conditions by Loch
Fyne Estates Limited recorded in the General Register of Sasines applicable to the
County of Argyll on 14 July 1986.
vii.
Clause SECUNDO of the Deed of Conditions provides that the chalets and chalet
owners "shall have the rights in common with the other proprietors of other parts of
the Development and of Largiemore Farmhouse of access and egress by foot and
vehicle...and to enjoy in common with all other such proprietors all areas of amenity
such as grass lands and all services and facilities provided for chalet proprietors by
the Development owner...".
viii. Clause SECUNDO (Second) provides that chalets are "...to be used and occupied
solely as a private holiday dwellinghouse which for the purposes hereof means
occupancy not exceeding eleven months in any period of twelve months and for no
other purpose whatsoever...."
ix.
Clause SECUNDO (Third) provides that "in consideration of the rights of access,
parking and enjoyment aforesaid the proprietor shall be bound to pay along with the
proprietors of all chalets on the Development, an equal share (on the basis of one
share per chalet on the Development) of the costs and overheads incurred by the
Development Proprietor in or about the maintenance, repair, replacement and
renewal of the whole facilities over which rights are granted...".
x.
The applicants are liable to pay Council Tax on their respective chalets. The applicants
receive a 50% Purpose Built Holiday Home Discount on their Council Tax liability.
[9]
The FTS heard submissions on the policy aims of the 2011 Act. Each party sought to assist
the FTS in reaching an appropriate definition of the wording in dispute. Parties further referred
to case law to assist their respective positions.
[10] The FTS resolved the matter before it in the following manner. First, it determined
whether the respondent fell within the definition of property factor. The FTS referred to the case
of Proven Properties (Scotland) Limited v Upper Tribunal for Scotland [2020] CSIH 22. In applying the
decision in Proven Properties, the FTS concluded (at paragraph 22):
"...The view of the tribunal was that the respondents are not in business as property factors.
They own everything at Largiemore Estate apart from the 44 chalets and their sola and are
operating a holiday park development...As part of that business, they maintain and repair
various facilities over which, in terms of a Deed of Conditions, the chalet owners have rights of
access or use. The Deed of Conditions and separate Management Contracts (containing
provisions to all intents and purposes identical to those in the Deed of Conditions) between the
individual chalet owners and the respondents require the chalet owners to pay the costs of
maintaining the facilities over which they have rights. The respondents are, therefore, recouping
their costs from the chalet owners. That situation can be distinguished from that of developers
who convey to a third-party land management company the amenity grounds and facilities of a
residential development. The respondents are not, in the opinion of the Tribunal, providing
factoring services, and, on that ground alone, the Tribunal has no jurisdiction and the
applications must fail."
[11] Although the FTS reached that principal conclusion it went on to determine whether the
appellants' properties were "residential" for the purposes of section 2(1)(c) of the 2011 Act. It
concluded that the chalets in question did not meet the definition to be applied to that phrase. It
commented that the chalets were never meant for permanent occupation. Reflecting on what had
been submitted to it in relation to the meaning of "reside" and "residence," the FTS stated that
any reasonable interpretation of the word "residence" would "imply at least the potential to use
a property as one's permanent abode" (at paragraph 23). The FTS held that, within the context of
the development at Largiemore, the chalets were not to be classed as residential properties for
the purposes of the 2011 Act.
Submissions
[12] All parties to this appeal lodged detailed written submissions. These were supplemented
by further oral submissions at the appeal hearing. I am obliged to all parties for their diligent
approach in this respect.
[13] Although each of the appellants prepared their own submissions, on the points which are
material for the purposes of this appeal, their respective submissions did not differ substantially.
For that reason, I will not attribute any submission to a particular appellant. It is sufficient to
summarise them in one grouping.
[14] It should also be noted that a great deal of the written submissions focused on the
importance of the decision in the case of Proven Properties Limited. This was understandable given
the rationale for the decision of the FTS. Indeed, it became clear that none of the parties had
referred the FTS to this case. It had been the FTS who drew the parties' attention to it. Albeit the
FTS had invited comment on the case, all parties had submitted that they did not consider the
case to be relevant given the very different factual circumstances which prevailed. During this
appeal Mr. Sutherland conceded that the respondent did not seek to argue that the FTS was
entitled to reach its conclusions on the basis as outlined by it in paragraph 22 of the written
decision. Mr. Sutherland accepted that the FTS was not able to conclude whether the respondent
was acting "in the course of its business" and was not entitled to conclude that the respondent
was simply recouping its costs from the chalet owners. This was an area where the facts were
disputed. The only matter for the proper consideration of the FTS had been whether the correct
definition to be applied to "residential property" led to a finding that the respondent was a
property factor and that the appellants were homeowners.
[15] I am grateful to Mr. Sutherland and consider his concession was responsibly made. For
that reason, I will not summarise the submissions which were advanced as to whether the FTS
correctly concluded that the respondent was acting "in the course of its business." I will focus on
the submissions relevant to the matter of the definition of "residential property" which should
have been applied for the purposes of the 2011 Act.
[16] In their submissions the appellants pointed to the fact that the property owned by the
respondent was not operated as a holiday park in the conventional sense. It was not operated
under a "holiday park license" as properly understood. Each of the 44 chalets were owned. The
chalets were described in the Deed of Conditions as holiday dwellinghouses. Reading the
relevant clause in full in the said Deed there was an express prohibition against using a chalet for
business purposes or for the sale of goods "whether or not such use may be deemed incidental or
natural to the ordinary residential use of the chalet" (at Clause SECUNDO Second). In that
respect it was clear that the chalets were residential and not commercial properties.
[17] On the matter of the limited occupancy in any twelve-month period the appellants
submitted this was of no consequence for the purposes of the 2011 Act. The property did not
require to allow permanent occupancy for it to qualify as a residential property. The Act did not
require it to be the permanent home of the chalet owner. A chalet owner could reside anywhere.
A chalet owner could, if they wished, reside in the holiday home for eleven months and then
reside at another holiday home for the next month before returning to reside again at the chalet.
It didn't matter that the chalet owner moved between different properties. All that counted was
that the property was residential, it did not require to be the owner's place of domicile.
[18] The appellants further submitted that the dictionary definitions to which the FTS was
referred did not assist. For the purposes of the statute the term should be given its plain and
straight forward meaning. In terms of the 2011 Act holiday homes could have been specifically
excluded but were not. For other statutory purposes, the chalets in question were classed as
residential properties. This was the case for Council Tax liability. Further, a holiday home was
classed as a residential property which attracted Capital Gains Tax liability. The appellants also
pointed to other holiday developments which were similar in nature where owners were
believed to be registered as property factors. What the respondent did was manage or maintain
land available for use by the owners of two or more adjoining or neighbouring residential
properties. There were title conditions relating to the payment of maintenance and management
costs and overheads. Accordingly, the chalets were residential properties for the purposes of
section 2(1)(c) of the 2011 Act. To determine otherwise, as the FTS had done, was illogical and
unjustified.
[19] The appellants pointed me to the policy aims behind the 2011 Act. The FTS had failed to
define "residential property" to give purposeful effect to those aims. This approach was
consistent with the reasoning in the case of Shields v Blackley [2019] UT 2.
[20] For the respondent, Mr. Sutherland adopted his written submissions. If the UTS
considered it necessary to have regard to any material out with the wording of the Act itself, an
indication of the intended scope of the 2011 Act could be found in the policy memorandum
which accompanied the Bill. Within that memorandum it was noted that the definition of
"property factor" did not apply to homeowners who "self-factor," those who manage property
which is not owned in common, and those who manage commercial property.
[21] The respective definitions of "property factor" and "homeowner" were to be found in
sections 2 and 10(5) of the 2011 Act. The definitions referred to the related concepts of land being
available for use by residential properties and land used for residential purposes. The proper
approach to construction of a statute was to begin with the ordinary meaning of the words used.
Per the Oxford English Dictionary, the word "residential" was defined as "serving or used as a
residence: in which one resides." The word "reside" was commonly defined as dwelling
permanently. The definition of "residence" was defined as "to have one's usual dwelling place or
abode" and "having one's permanent or usual abode."
[22] Mr. Sutherland referred to the Home Owner and Debtor Protection (Scotland) Act 2010
("the 2010 Act"). Whereas the 2010 Act had a different purpose from the 2011 Act, both referred
to "land used to any extent for residential purposes". The meaning of this expression had been
considered in the case of Westfoot Investments Ltd v European Property Holdings Inc 2015 SLT (Sh
Ct) 201. The court held this meant it was a property used as a home. Further consideration to the
phrase had been given in the case of Royal Bank of Scotland Plc v Mirza 2017 SLT (Sh Ct) 105. The
Sheriff Appeal Court approached the matter in a different way to the case of Westfoot Investments
Ltd but concluded that what was important was the use of the property as a residence and
whether the occupier used it as their home. Just because a property could be considered as
residential that was not determinative for the purposes of the 2010 Act. Mr. Sutherland readily
accepted, as he had done in his submissions before the FTS, that these cases were not directly in
point but, in his submission, they helped in the formulation of the appropriate definition to be
applied to the words used in the 2011 Act.
[23] The respondent disputed that the appellants were "homeowners" for the purposes of the
2011 Act. This was because the chalets were not used for residential purposes and were not the
appellants' residences. As such, the FTS had not erred when it concluded that the chalets were
not meant for permanent occupation and the Deed of Conditions prevented the appellants from
residing there as their usual dwelling-place or abode. On that basis the FTS had applied a correct
interpretation to the disputed meaning of the wording as used for the purposes of the 2011 Act.
Discussion
[24] The 2011 Act established a register of property factors and requires property factors to be
registered. The Act makes provision in relation to the resolution of disputes between
homeowners and property factors. Where homeowners are dissatisfied with a property factor an
application can be made to the FTS to determine whether a property factor has failed to carry out
its duties or comply with the property factor code of conduct.
[25] Section 2 of the 2011 Act provides the meaning of property factor. It is a lengthy
definition, and, for the purposes of this appeal, it is useful to set out the terms of that section in
full.
"2 Meaning of "property factor"
(1) In this Act, "property factor" means--
(a) a person who, in the course of that person's business, manages the common parts of
land owned by two or more other persons and used to any extent for residential
purposes,
(b) a local authority or housing association which manages the common parts of land
used to any extent for residential purposes and owned--
(i) by two or more other persons, or
(ii) by the local authority or housing association and one or more other person,
(c) a person who, in the course of that person's business, manages or maintains land
which is available for use by the owners of any two or more adjoining or neighbouring
residential properties (but only where the owners of those properties are required by the
terms of the title deeds relating to the properties to pay for the cost of the management or
maintenance of that land), and
(d) a local authority or housing association which manages or maintains land which is
available for use by--
(i) the owners of any two or more adjoining or neighbouring residential properties, or
(ii) the local authority or housing association and the owners of any one or more such
properties,
but only where the owners of those properties are required by the terms of the title deeds
relating to the properties to pay for the cost of the management or maintenance of that
land.
(2) Despite subsection (1), the following are not property factors for the purposes of this
Act--
(a) a person so far as managing or maintaining land on behalf of the Crown that was
acquired by virtue of Her Majesty's prerogative rights in relation to unclaimed or
ownerless land,
(b) an owners' association established by the development management scheme (within
the meaning of the Title Conditions (Scotland) Act 2003 (asp 9)) so far as managing or
maintaining common parts or land in accordance with the scheme,
(c) a person so far as managing or maintaining common parts or land on behalf of
another person who is a property factor in relation to the same common parts or land.
(3) The Scottish Ministers may by order modify either or both of subsections (1) and (2).
(4) An order under subsection (3) may make such consequential modifications of any
other provision of this Act as may be necessary or appropriate.
(5) An order under subsection (3) is not to be made unless a draft of the statutory
instrument containing the order has been laid before, and approved by resolution of, the
Scottish Parliament.
(6) In this Part--
"housing association" has the meaning given by section 1 of the Housing Associations
Act 1985 (c.69),
"local authority" means a council constituted under section 2 of the Local Government etc.
(Scotland) Act 1994 (c39)"
[26] The definition of property factor in my conclusion is a wide one. That appears to be
acknowledged within the terms of section 2 on the basis that the exclusions to being a property
factor as listed in subsection 2(2) commence by stating that the listed exclusions are so listed
"despite" the definition as provided in subsection 2(1). Furthermore, subsection 2(3) gives
Scottish Ministers the power to modify both the definition of property factor and the exclusions
thereto should they deem it appropriate to do so.
[27] In terms of section 17(1) of the 2011 Act it is a "homeowner" who may apply to the FTS to
determine a failure, or non-compliance, on the part of a property factor. A "homeowner" for the
purposes of the 2011 Act is defined by section 10(5) as follows:
"(a) an owner of land used to any extent for residential purposes the common parts of which are
managed by a property factor, or
(b) an owner of residential property adjoining or neighbouring land which is--
(i) managed or maintained by a property factor, and
(ii) available for use by the owner."
[28] Residential property is not defined by the 2011 Act. In addition to the dictionary
definitions referred to, case law was offered for the assistance of the FTS reaching an appropriate
definition. These cases were also referred to in the submissions made in this appeal.
[29] In Royal Bank of Scotland Plc v Mirza 2017 SLT (Sh Ct) 105 the Sheriff Appeal Court held
that, for the purposes of the protective regime provided for residential property under section
20(2A) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (introduced by the 2010 Act
referred to in the submissions above) and the regulations in relation to calling-up of a security
and pre-action requirements, whether protection existed depended on a property being used for
residential purposes. The court considered the definition to be given to "land used to any extent
for residential purposes" and in so doing referred to the decision in Westfoot Investments Ltd v
European Property Holdings Inc 2015 SLT (Sh Ct) 201 in which Sheriff Welsh had defined property
used for residential purposes as meaning a property used as a home. In Sheriff Welsh's decision,
he considered the question to be posed was "whose home is it?." Whilst broadly agreeing with
the decision in Westfoot Investments Ltd, the Sheriff Appeal Court posed a different question and
stated:
"That question is simply this: "Were the subjects, to any extent, used for residential purposes?"
This must always be a question of fact. In our view the word "residential" qualifies the purpose
rather than the property referred to in the clause. It follows that in certain circumstances security
subjects may be occupied or unoccupied and yet remain residential in the sense we have
described. Factual presence in a property may not be a determinative factor. Temporary absence
can and should be accommodated within the definition" (opinion of the Court delivered by
Sheriff Arthurson QC at paragraph 4)
[30] Whereas the phrase "land used to any extent for residential purposes" appears in
subsection 2(1)(a) of the 2011 Act, that phrase does not appear in subsection 2(1)(c) which is the
relevant definition to be applied to the factual circumstances here. As such the comments in the
above cases are of limited assistance in resolving the matter for the purposes of this appeal. That
said, it seems to me that the above observations in Royal Bank of Scotland acknowledge the word
"residential" can cover a wide spectrum of factual situations, certainly for the purposes of the
2010 Act.
[31] In Shields v Blackley [2019] UT 2 the UTS held that section 17 of the 2011 Act must be
constructed purposively in such a way as to give effect to the objectives and policy which
underlie the provision. As the 2011 Act had been a private members bill the objectives and policy
were not found in any Scottish Law Commission report or official explanatory memorandum.
With that acknowledged the UTS considered the purpose of the legislation was readily
discernible through consideration of the pre-act law and the terms of the 2011 Act itself (at
paragraph 2 of the judgement).
[32] Parties in this appeal referred to the policy aims of the 2011 Act. Both considered these
aims supported their respective positions as to the definition to be given to "residential
property."
[33] The SPIC Briefing Notes on the Property Factors (Scotland) Bill described property factors
as generally managing or maintaining the common parts of homes in multiple ownership. In
outlining the recent history of land management and property factoring services there was
mention of self-regulated schemes falling short and therefore the need for statutory regulation
being necessary. On the matter of land maintenance, the Briefing Note observed that obligations
on property owners to pay for such services were often incorporated into title deeds. It was
further commented that:
"Under this model, because the land maintenance company owns the land, it can be very
difficult to remove and replace it with another provider. As a result, homeowners are effectively
locked into a contract with a particular land maintenance company." (page 8)
[34] As commented in the case of Shields, before the passing of the 2011 Act property factors
were not subject to regulation and, in the absence of minimum standards or practices, disputes
between homeowners and property factors could only be resolved by litigation conducted in the
courts. The preamble to the 2011 Act made it plain that provision for the resolution of such
disputes was one of the Act's main purposes. The resolution of disputes now lies within the
jurisdiction of the FTS.
Conclusion
[35] The FTS concentrated on the definition provided for by section 2(1)(c) of the 2011 Act. In
the opinion of the FTS, the crux of the matter was whether or not the respondents were
providing what could be regarded as factoring services "in the course of its business". It was
conceded on appeal that given disputed issues of fact the FTS was not able to resolve the
jurisdictional matters before it on this basis.
[36] The only matter for determination in this appeal is whether the chalets in question are
residential properties for the purposes of the 2011 Act. It is whether the chalets fall to be
regarded as residential properties as part of the overall definition of both "homeowner" and
"property factor" as provided for by the Act that must be determined.
[37] In this appeal, each of the appellants own a property. Although not stated in the decision
of the FTS each of the appellants have owned their properties for many years prior to the passing
of the 2011 Act. The relevant Deed of Conditions provides for the chalets to be used and
occupied solely as private holiday dwellinghouses which for the purposes of the Deed means
occupancy not exceeding eleven months in any period of twelve months and for no other
purpose whatsoever.
[38] In terms of 17(1) of the 2011 Act it is a "homeowner" who may apply to the FTS for a
determination regarding a dispute with a property factor. It is clear from the definition provided
by section 10(5)(b) that it is the ownership of a residential property which qualifies the individual
to be regarded as a homeowner for the purposes of the 2011 Act. It does not state that the owner
of the residential property must be residing in the property as a necessary requirement to allow
an application to be made to the FTS. Whereas ownership does not require the owner to reside in
the property, ownership must be of a property which is residential.
[39] I stand by my earlier conclusion that, for the purposes of the 2011 Act, and as part of the
definition to be given to property factor, there is nothing to preclude the widest meaning being
given to the term "residential property". To my mind that refers to a property which is used for
residential purposes without requiring to further consider the nature and extent of the residential
occupancy or other current use of the subjects by its owner. In other words, a homeowner is
someone who owns a residential property as opposed to a commercial property, the latter not
allowing for any element of residential use. Whether they reside in it permanently or whether
they reside elsewhere is not relevant. There is no requirement for the purposes of the statute that
the property is the owner's principal place of residence.
[40] The fact that the title conditions of the chalets limit the occupancy period in each twelve
months, and limits occupancy for holiday purposes, does not in my opinion disqualify it from
falling within the definition of residential property for the purposes of the 2011 Act. Per the
wording of the statute, the only title condition of relevance is whether the owners are required by
the terms of the title deeds relating to the properties to pay for the cost of the management or
maintenance of the adjacent or neighbouring land. In the absence of any statutory exclusion
relating to properties where title conditions limit the period of occupancy or the purpose of that
occupancy the title conditions founded upon in this appeal do not prevent the owner of the
chalet being a "homeowner" for the purposes of section 10(5) of the 2011 Act. The same meaning
of "residential property" must be applied whether it appears in that definition or to its use in
terms of section 2(1)(c) of the Act.
Conclusion
[41] Based on the above I shall sustain the third ground of appeal. It is unnecessary to
determine the other grounds as framed. Accordingly, this appeal succeeds in relation to the
definition to be applied to "residential property," being one of the constituent parts of the overall
definition of "property factor."
[42] In terms of section 49(1) of the Tribunals Scotland Act 2014 ("the 2014 Act") I quash the
decision of the FTS. In terms of section 49(4) of the 2014 Act, I will direct the FTS that the
properties, for the purposes of these conjoined proceedings, fall within the definition of
"residential property" for the purposes of the 2011 Act. Beyond that, whether the respondent
falls to be regarded as a property factor remains a matter of disputed fact. Only a substantive
hearing can determine that.
Observation
[43] During this appeal, it became clear that the respondent has raised Sheriff Court actions
against each of the appellants for outstanding sums believed to be due in terms of the contractual
relationship between the parties. I did not consider any submissions based on the existence of
other related proceedings to be relevant for the purposes of this appeal. I am also conscious of
the respondent's position that any services it provides are not those of a property factor. That
said, this case highlights a tension between jurisdictions required to resolve disputes between
homeowners and property factors from their respective positions in such circumstances.
[44] If a homeowner is unhappy about the services provided by a property factor the route to
resolve the dispute is by making an application to the FTS. Conversely, if a property factor seeks
to recover outstanding sums from a homeowner they must raise an action for recovery in the
Sheriff Court usually via simplified procedure. Anecdotally I am aware of cases in the Sheriff
Court where the homeowners defence to such a claim is that payment has been withheld because
of the quality of service provided. Many such actions seem to be paused in the Sheriff Court to
allow homeowners an opportunity to have their complaints as to service adjudicated by the FTS.
This does not appear to me to be the most expeditious way to resolve the two sides of a
disagreement in these circumstances. But to resolve the two aspects of such a dispute in one
forum, in relation to which there may be merit, would require a change in jurisdiction for
determination of the property factor's claim for unpaid charges. That would of course require
the introduction of statutory provisions to allow for that.
Sheriff Ian Hay Cruickshank
Member of the Upper Tribunal for Scotland
A party to this case who is aggrieved by this decision may seek permission to appeal to the Court
of Session on a point of law only. A party who wishes to appeal must seek permission to do so
from the Upper Tribunal within 30 days of the date on which this decision was sent to him or
her. Any such request for permission must be in writing and must (a) identify the decision of the
Upper Tribunal to which it relates, (b) identify the alleged error or errors of law in the decision
and (c) state in terms of section 50(4) of the Tribunals (Scotland) Act 2014 what important point
of principle or practice would be raised or what other compelling reason there is for allowing a
further appeal to proceed.
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