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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12069
Experience:  30 years as a practising solicitor.
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Scots Law Enquiry I am in a dispute with my property factor

Customer Question

Scots Law Enquiry
I am in a dispute with my property factor in Scotland. The first hearing date is Friday Nov 13th. They are claiming £1128 in charges (incl. £90 in fees to Put the debt on my property title deeds).
I am counterclaiming for disputed charges on the bill (£322.81); & not crediting a payment to my account (£237.27);
1. In working up the proof for my counterclaim I am not sure whether I should just pay the sum due to the Property Factor using "Payment Under Protest" mechanism prior to the initial hearing this Friday? What are the pros and cons of this?
2. There is another outstanding sum. This relates to a common repair bill totalling £12,500 of which the factors claim my share (@12.5%) is £1,562. The work was to replace a bressemer beam in the attic.
The co - 0wner undertook the work as an "emergency repair" during a major refurbishment to his property below the attic. The refurbishment lasted 3-5 months.
Factor attended a ‘review meeting’ at the co-owners flat & agreed the work on the basis that the work constituted an emergency repair.
The co-owner had already sought competitive quotes and his contractor doing the refurbishment got the job.
Works went ahead without notifiying the co-owners in advance of the need for work; Co owners were not advised of any of this until the work had been carried out.
No photo records of the condition of the bressemer beam has been provided which could demonstrate the condition of the beam. It is claimed the beam was split due to the outward bowing exterior wall , and it was claimed there was dry rot on the underside of the beam
The co-owners are now being pursued by the factor on behalf of the owner (who paid for the work in full) for £12,500 based on a structural engineer (SE) drawing; photo of finished work and a Letter/Invoice (w/ no breakdown of job costs or proof of payment). No further itemization has been provided as requested.
I then checked the costs using a reputable construction costs consultancy/quantity surveyors - the Budget cost based on the structural engineers specification/ national construction cost indices/recent tenders of this kind - came in at £3,330 excl. vat. 12.5% share £417.
The firm noted a variation from the specification and the photo of completed work and it would appear that the final bill of work would reduce a further £780 to £2,550.00 12.5% share £316.00
It cost me £250 to have the job cost assessment undertaken.
The factors have secured some co-owner contributions (2x £1,570 share)
Two properties were sold during this period (May – Sept 2014). The factors retained funds from outgoing co-owners. The funds retained were over and above the change of title in the flat being refurbished.
The factor has requested a co-owners meeting. An agenda item for that meeting is the replacement bressumer beam outstanding repayments. Under the Scottish Government Guidelines to Property Managers implementing the Tenement Act Scotland; Emergency Works Section 7 co-owners can be asked to retro-actively sign off an ‘emergency repair’ on the basis that it was an emergency, thereby validating the competitive tendering for the job; the costs; and giving co-owners a legal liability for this charge.
The factors have made reference to the means by which they or the City Council could charge the cost onto an owners title deeds.
The job cost as claimed by the Factors and Co-owner represents an increase of 500% over ‘budget cost’ as itemized by a reputable independent construction costs consultancy & based on valid UK construction cost indices
I do not want a liability for this bill. But it could be consented to by co-owners.
I do not believe the work 'constituted such an emergency repair' that the co-owners could not be notified.
I believe that the factor is in breach of his financial obligations to the co-owners under the Factors code of conduct.
Can I include this in my Small claims counterclaim - given that the bill is £12,500? Or will the court accept the counterclaim on the basis of my 12.5% share?
What do I have to ask for from the sheriff?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
Does the share of the £12,500 intimated to you form any part of the factor's case against you in this small claim action?
Customer: replied 2 years ago.
No not yet.But at the co-owners meeting the factor will attempt to get the co-owners to retrospectively agree the work - this is allowed because the factor and the owner who did and paid for the work claim that they had to go ahead with the work on an emergency basis. The decision is legally binding based on a majority vote and then the factor can pursue me for the debt.
Expert:  JGM replied 2 years ago.
In that case you can't bring that dispute into the current court action. The current action relates solely to the charges they have billed and those you are disputing. You should not be counterclaiming if you have not paid these charges. A counterclaim is for monies they owe you. What you should be doing is pay whatever monies are not in dispute and defend the rest.
Customer: replied 2 years ago.
Follow up Q.1. Bressemer Beam Replacement: In which case how do I handle the excessive costs claim - which has merit - and for which I wish to limit my liability. There is also a question of whether there has been a breach of contract by the property factor in terms of his financial obligations and obligations under communications code of conduct.Follow up Q 2. One of the charges on the Property factors Bill relates to pointing/stone work that they undertook for £237.
-The factor was slow to respond to my complaint about the open pointing. Taking 18 months to do the repair work. I had been raising the issue for four years prior to that but there was no formal complaints procedure in place.
- I suffered damages to my flat as a result of the water ingress (wet rot and dry rot) and discovered these damages 6 months after my complaint has been raised. The costs to repair are £3000.00 this is based on a conservative/budget quote for
- The pointing repair work is insufficient: I still have water ingress.I had thought to raise this as a separate claim against the factor for Neglect. Would I be able to raise this claim here now? I do not feel ready to raise that claim yet I would be pushed to pull it all together.
Expert:  JGM replied 2 years ago.
1. The beam replacement case hasn't started yet. You would defend and counterclaim if appropriate in the event that you received a claim on the grounds narrated by you.2. The cost to you of the delayed and failed pointing would form a counterclaim in the current action against you and you could ask the court for 14 days or so to lodge a counterclaim.
Customer: replied 2 years ago.
There is a small claims court threshold of £3000.If I included the pointing damages (not just the disputed charge) then I would cross the threshold and have to take the claim under summary cause which has different rules and legal costs associated with it. I am wondering whether at this stage it would be better to roll the neglect claim for the bressemer beam and the delayed and poor pointing into one larger claim and 'pursue' the factor this way. Consequently before the hearing on Friday I would have to pay the undisputed charges; change my counterclaim on the hearing this friday to one of disputing charges on the current bill only; and address appropriately why I am removing the damages aspect of my counter claim because I would not want to have the other party argue that I in settling the current case I had settled on the damages for common disrepair and could therefore not raise the matter once more?If I remove the second part of my current counterclaim which was generally worded "Damages following common disrepair " My claim here was aimed at the damages arising from works when the bressumer beam was replaced £746 which you say I cannot claim at this time)
Expert:  JGM replied 2 years ago.
No, you can't include the beam case. There is no case about this at the moment and nothing you can claim or counterclaim for. If your counterclaim exceeds the £3000 consider limiting your claim to £3000. You are allowed to do that.