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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11554
Experience:  30 years as a practising solicitor.
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I would like to understand what procedural irregularity is

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Hello, I would like to understand what procedural irregularity is and specifically whether it relates to my situation. I am pasting the CONDESCENDENCE from the summary application I am about to submit and would like to understand if submitting is a good idea or not, ie. am I likely to win? The Pursuer respectfully ***** ***** court 1. To make an order enforcing Rule 6, subsection 6.2 of the Tenement Management Scheme in relation to the proposed courtyard works due to begin shortly at the ******.. RULE 6 – PROCEDURAL IRREGULARITIES 6.2 Liability for scheme costs where procedural irregularity If any owner is directly affected by a procedural irregularity in the making of a scheme decision and that owner— (a) was not aware that any scheme costs relating to that decision were being incurred, or (b) on becoming aware as mentioned in paragraph (a), immediately objected to the incurring of those costs, that owner is not liable for any such costs (whether incurred before or after the date of objection), and, for the purposes of determining the share of those scheme costs due by each of the other owners, that owner is left out of account. As follows: a. The pursuer is to be left out of the calculation of costs for the proposed scheme works b. The pursuer is to be given a written apology for the various communications received on the matter and compensated for the amount of time discussing and trying to clarify his position on the matter CONDESCENDENCE 1. D**** H*****, the pursuer owns F****, ***** ***** Street. ***** ***** (the property factor), a prominent property management company based in Scotland manages property on behalf of the residents and has done so for a number of years. 2.D***** purchased the property in late 2014, completing the purchase in October. Before this time, as is normal the seller’s solicitors wrote to the Property Factor advising them of the sale, the pursuer’s contact details and the name of his solicitor and date of completion. The pursuer also contacted the property factor shortly after the sale to enquire about buildings insurance and also a few months later in January about a leak in the roof as again this was expected to be covered by buildings insurance. 3. Despite these interactions, S**** never got in contact with the pursuant as they should have done under the Property Factors (Scotland) Act 2011 until May/June 2016, around 20 months after the sale took place. During this time no correspondence was received from the property factor concerning a. Any details of scheme works that were being proposed or discussed or voted for by owners b. The details of any meetings to discuss or vote for proposed scheme works c. Any details on costs or works being incurred during that time relating to the property and surrounding areas 4. In May/June 2016, Speirs Gumley wrote to the pursuant advising that they owned some £5,562.20 for courtyard replacement works that had been voted in favour for at an AGM meeting held in March 2015 of a small quorum of 8 people (not simple majority of all owners). This is allowed under the Title deeds of the property if the first meeting is not attended by a majority. They also advised the pursuant that £5,275.72 was to be paid in relation to maintenance and cleaning voted for at meetings of which the pursuant received no communication to attend or speak at. 5. The pursuant immediately rejected all costs, writing to the Homeowner housing panel (HoHP about the matter following discussions with the property manager where he tried to ask them to cancel all costs voted for without his knowledge prior to the initial communication received in mid-2016. 6. The HoHP agreed that failures had occurred and ordered Speirs Gumley to cancel all management costs for the 2 year period which totalled £300. The pursuant agreed to pay for the remaining property management costs at the time as he was being threatened with legal action and did not have the necessary funds to appropriately defend himself, and continues to pay these monthly. 7. The Title Deeds to the property clearly states that for a first meeting where a majority of residents is needed to vote in favour of works, 7 days’ notice is required for all residents of the flats offices and retail units and where a 2nd meeting is to be held where a quorate vote is required by at least 10 people attending, that 14 days’ notice shall be given to all resident in the flats, offices and retail units 8. In this case, no notice was given to the pursuant for any meetings for a period of 2 years, nor was he told that costs had been voted for in this time. Due to the pursuant not being able to attend, speak, or vote at the AGM because he was not made aware, he feels strongly that the proper procedures set out in the title deeds have not been followed and that there has been procedural irregularity in relation to how the costs have been voted for on his behalf without input

Submitted: 1 month ago.
Category: Scots Law
Expert:  JGM replied 1 month ago.

Thanks for your question. I am a solicitor in Scotland. Your Initial Writ is incorrectly set out, does not seek the correct remedy and you would never get a warrant for service from the sheriff clerk. These applications should really be drafted by a solicitor unless you are trained in drafting litigation. However putting that aside, can you tell me why you are referring to the Tenement Management Scheme when you also refer to the title deeds and the procedure contained in the title deeds for making decisions. The legislation states that the Tenement Management Scheme only applies where there is no provision in the title deeds for the making of decisions for carrying out common repairs. So any action should be based on the provisions of the title deeds and whether these have been followed. Your remedy would be interdict to prevent the works going ahead in the absence of the proper procedures being followed, subject to any arbitration provisions in the title deeds. I hope that helps. Please leave a positive rating so that I am credited for my time.

Customer: replied 1 month ago.
Hello, please find the 2nd part of my writ. My main question is concerning if there is procedural irregularity here as I was not invited to vote or attend the meeting. Rule 6 of the Tenement Management Scheme should apply as my title deeds make no reference to procedural irregularity or what happens if this occurs. Please read more below, The city council are providing a grant to 'top up' the funding and are now chasing me for payment. Thanks9. Under Section 4 of the Tenements (Scotland) Act 2004 it states(8) The provisions of rule 6 of the Scheme shall apply to the extent that there is no tenement burden making provision as to the effect of any procedural irregularity in the making of a scheme decision on— (a) the validity of the decision; or (b) the liability of any owner affected by the decision.The pursuant has reviewed the title deed burdens and feels that there is certainly no burden therein making provision as to the effect of any procedural irregularity in the making of a scheme decision.10. Furthermore, notice was sent to all other owners and residents following the meeting in March 2015 advising them that they have 2 years to pay for the works. The pursuant was only informed in 2016 and is not financially able to pay these large costs.11. The property factor has used the decision by a quorate of 10 people to persuade most residents in the building to pay and but has failed to gather all the funds required. Because of this they have reached out to Glasgow City Council to receive additional funding under Section 50(3) of the Housing (Scotland) Act 2006.12. Amongst other qualifications, section 50 subsection 3 only applies under section 50 subsection 2) b) iii)(b) that the share of estimated costs apportioned to the owner who has not complied with the requirement does not conflict with any provision about liability for or apportionment of costs contained in—
(iii) the tenement management scheme in so far as it applies to those houses or any decision made under that scheme, and13. The pursuant believes that there is a conflict with Rule 6 of the Tenement Management Scheme14. Section 50 also points out(1) Subsection (3) applies where—
(b) notice has been served on each owner responsible for that maintenance requiring the owner to deposit a sum into a maintenance account representing the apportioned share of the estimated costs for which that owner will be liable,
(5) A notice of the type referred to in subsection (1)(b) must set out—
(e) why the estimate is considered reasonable,The pursuant has advised the property factor that the research carried out into obtaining value for money was not done with due care. This is because only 3 companies were asked to quote for the works and only 1 completed quote came back which does not feel like an adequate bid process.15. The tender price received by the party The property factor intends to have do the works was son 20% higher than anticipated and again the pursuant feels that due care has not been given to the process, which, had he known about the process and work being done, he could have communicated earlier.16. Glasgow City Council have agreed to provide the additional funding required and have now demanded that the pursuant deposit the full funds within the next 7 days or receive additional fines against the property and be in danger of losing his landlord licence. Despite the pursuant calling the relevant people at Glasgow City Council several times, they refused to acknowledge his position and appear to be of the opinion that if the majority have voted for the works to complete then they can provide funding17. In actual fact, no actual majority ever voted for the works, only a quorate of 10 people. The rest have paid after being told they must. Glasgow City Council have also failed to take into account the procedural irregularities present during the voting process for these scheme works. The pursuant therefore respectfully ***** ***** he is left out of the account when calculating the costs that each owner in the tenement must pay for the courtyard works.
Expert:  JGM replied 1 month ago.

Thank you for confirming the position as regards ***** ***** deeds. On that basis I think you are protected by Rule 6.2 of the TMS. You weren't given notice and weren't aware of the proposal and when you became aware you objected to it. So why do you need to raise a court action at all? Although what you have drafted isn't right, my reading of it suggests that you are looking for some kind of declaratory order from the court to say that Rule 6.2 applies and that you have no liability to pay. You don't have to do that. You can state your position to the factor an if they don't accept your position they can sue you for payment. It would then be appropriate for you to argue Rule 6.2 as a defence to the action for payment. So in my opinion there is no need for you to raise an action at this stage. I hope that helps. Please leave a positive rating so that I am credited for my time.

Customer: replied 1 month ago.
Hi there, thanks for your response. Normally I would have done what you suggest and leave the property factor to sue me. However, in this case the property factor has 'passed' the debt to the City Council who have agreed to provide a grant for the funding gap as they believe there has been no procedural irregularity (although they haven't listened to any of my evidence). The council have since sent me letter saying that in their view I have been made aware of the works and that I must pay or risk being fined and risk have charges levied against my property title and even losing my landlord licence. In this case, should I still leave things to play out or take action?
Expert:  JGM replied 1 month ago.

It appears that the Council haven't thought this through. Reply to their letter quoting Rule 6.2 verbatim and ask them to state in detail why they consider you are liable having regard to the facts. Also make them aware that if they even consider removing your landlords licence or putting a charging order on the property over this you will sue them for damages for any losses arising. I don't see that you need to take action at the moment.

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