This petition is being brought forward following our experiences of trying to secure a change of factor. We have sought to use the complaint process of the current factor, have taken our appeal to the Homeowners' Housing Panel (HOHP) and subsequently sought assistance via the Faculty of Advocates. None of these efforts were successful.
It seemed that the Scottish Government might be able to assist by amending existing legislation so that a simple majority was all that would be required. A letter received from the Justice Directorate in 2015 indicated that, at that time, the Scottish Government had no plans to review the relevant legislation. What seemed clear was that retirement housing was seen as being a ‘special case’ but it does not seem to us that the ‘protection’ afforded by the insistence on a two-thirds majority was in the genuine interest of the owners/residents. On the contrary it appears that the current legislation places the interest of factors over those of owners/residents in sheltered accommodation and retirement homes. We are suggesting that the Scottish Government should take a second look at the unintended consequences of supposedly ‘protective’ legislation. The proposed amendment is not seen as a magic wand to iron out all differences between owners/residents and factors. On the other hand we believe it will provide a catalyst for changes that introduce greater accountability and more flexibility in the way that estates are managed on behalf of owners/residents.
We contend that the current provisions of the Act unjustly discriminate against owners in sheltered accommodation, and have set out ten reasons why the current legislation demanding a two-thirds majority for transfer must, in our opinion, be changed.
1. It is first and foremost undemocratic and takes no account of the fact that owners are the paymasters of the Factor
2 It fails to take stock of the fact that not all, or at least all employees representing Factors, act with probity and in the genuine interests of their clients.
3. It is arbitrary in the sense that not all Estates are required to abide by it in bringing about transfer to another Factor.
4. It appears to be the product of lobbyists acting on behalf of Factors who, themselves, were brought into the initial consultation when the legislation was being drafted.
5. It provides a kind of 'security of tenure' even for rogue Factors and, despite what is argued to the contrary, it is a major undertaking to remove a Factor embedded in this manner.
6. It is a breach of fair trade in goods and services. We can easily change our barber, dentist, butcher, or golf club for example, but can't change a Factor (without considerable hassle!)
7. It is deeply offensive to the frail, vulnerable and elderly who are themselves notoriously change-averse. They don't need the 'safety' provided by legislation designed, presumably, to deter them from unwise changes or, rather, changes that act against the interests of their current Factor.
8. It sits very badly with the Scottish Government's stated mission to build a fair and just society in which everyone has equal opportunities and equal rights. If a two-thirds majority of balloted residents were needed to take on a Factor (as opposed to changing an existing one) the injustice of the present dispensation would become immediately apparent.
9. It inhibits transparency of operation and restricts the level of genuine consultation taking place between owners/residents since the current Factor is aware that it takes a sea-change to bring about their removal whatever their conduct.
10. Its basis is essentially a profit motive promulgated to suit a Factor's interests not those of owners/residents. It is, for that reason, if no other, bad law and therefore needs to be amended.
We would like to see the current legislation amended so that, for example, a simple majority of residents can always dismiss a property factor, regardless of what the title deeds say, once the manager burden has expired. The manager's burden may have expired but we consider that a switch to another Factor, though theoretically possible, is, in practice, made very difficult.