Ewan Miller

Since the FTT decision we’ve contacted our local MSP. She’s been in touch with RMG to express her concern at refusal to accept the vote run to terminate them. RMG have re-iterated their position that as per their interpretation of the deeds the WRA are not able to provide evidence that for the 38 tenanted properties in the estate the tenant actually passed the voting paper and communication on the the absent owner/landlord. Likewise they insist a quorate of 20% of owners was not physically present at the EGM meeting thereby insinuating voting by proxy is not permitted. Please note, however, that the option of mandated or proxy attendance / voting at any duly convened meeting of Plot Proprietors is set out  in the first section of Part 2 of the Deed of Servitudes and Conditions in the following explicit terms:

“any of the Plot Proprietors may be represented by a mandatory; the quorum of a meeting shall be twenty per cent of the total number of the Plot Proprietors or their mandatories.”

We have followed that procedure in arranging the October EGM, and RMG have done likewise in respect of all previous AGM meetings. We firmly believe this approach to be wholly compliant with the requirements of the Deeds.

Neither of these points were an issue in the past when RMG oversaw the formation of the WRA nor when they have sought quorate from the resident population for large spends which they are duty bound to do as per the deeds. Such interpretations of the deeds needless to say would make it pretty much impossible to ever get rid of a factor.

I’ve been advised by other factors that the process followed by the WRA is the norm in Scotland. The FTT decision was that they (as a body) cannot make interpretations of deeds and therefore advised both parties that a decision on the matter should be sought in a civil court:

“The Tribunal’s view was that it was not within its powers to determine whether the EGM had been competently convened or whether the decision to terminate the property factors’ appointment was valid. There was a clear dispute between the Parties as to the legal interpretation of the Deed of Servitudes and Conditions affecting the development and this was rightly a matter for a court to determine, if the Parties could not reach agreement.”

I’ve been advised by other factors and my local MSP that one of the reasons the FTT process was created to avoid such disputes going to civil courts. My MSP advised me to raise a petition to the Scottish Parliament to request a review of the Code of Conduct for Factors (Scotland) and the FTT process to ensure they make decisions on such matters. I will be progressing this.

I’ve also asked our local MSP to request RMG for confirmation that they will not block us using residents funds for legal support should the WRA seek to obtain a decision on the matter in a civil court. At present RMG have been clear that the residents of Woodilee Village will pay all their legal fees incurred so far in disputing this vote.  RMG (through the same legal firm) did offer to re-run the vote on behalf of the WRA with an “admin fee” of £8600 and a condition that the FTT complaint was dropped.

RMG have now gone completely rogue and stopped engaging with the WRA applying yet another interpretation of the deeds in relation to the 7 grand they have spent of your money on grit for bins (many of which are already full) referencing “majority objection” as the new quorate requirement.

Please all remember that all this money that is spent by RMG is coming out of your pocket as residents. Further while they insist they remain the factor at Woodilee Village they are supposed to provide a service covering regular walk rounds, regular updates on the debt position for the estate, none of which is happening.

All – unfortunately the tribunal did not uphold the complaint against RMG and on the key point around whether the vote was correctly run they stated:

“The Tribunal’s view was that it was not within its powers to determine whether the EGM had been competently convened or whether the decision to terminate the property factors’ appointment was valid. There was a clear dispute between the Parties as to the legal interpretation of the Deed of Servitudes and Conditions affecting the development and this was rightly a matter for a court to determine, if the Parties could not reach agreement.”

For the time being RMG therefore remain factors of Woodilee Village. The RA will now need to consider the next steps.

I attended the First Tier Tribunal hearing today where my complaint was heard around RMG’s refusal to accept the residents’ vote to terminate their role.

Other than tribunal members was just myself (as Chair of the WRA) and a lawyer from the firm RMG have appointed to defend the complaint. RMG did not attend.

Was relatively relaxed, civil and thoroughly covered my complaint.  The tribunal will provide a decision within the next 2-3 weeks. 

Conscious many residents will want to know what is happening with RMG and the sudden issuing of invoices for the period after they were terminated. As it stands they remain our factor until due process is followed unfortunately. The RA cannot advise individual residents what they should do in relation to payment of the invoice.  As soon as I receive the FTT response I will share it.

It’s come to our attention that RMG have not paid the temporary grounds maintenance contractor for work after 1st May (when their role as factor was terminated by residents). Given RMG’s stance is that they do not accept the termination notice and remain factors for the estate we would expect them to continue to operate as before. We are communicating this to residents as we expect we may see a further deterioration in the upkeep of our estate and fully expect RMG to communicate something blaming the RA. The RA can also confirm that a date in late Sept has been set for a first tier tribunal by the Scottish Courts Service meaning this matter will finally be brought to a close.

The RA can update that a formal complaint on RMG was submitted to the Scottish Courts Tribunal service on 21st June. The complaint relates to RMG’s refusal to accept the residents’ decision to terminate their role as factor of the estate. We await confirmation that the complaint can be heard at the tribunal and when.

In relation to a recent RMG communication to residents about the grounds maintenance tender (sent 25th July), the RA did confirm to RMG that they wished to re-appoint Root One as grounds maintenance contractor (formal email sent to RMG 19th July 2021), this was the recommendation from RMG.  After confirming this, RMG then revealed Root One were in dispute with them in relation to unpaid invoices across 2 estates (one being Woodilee) and therefore could not be appointed as grounds maintenance contractor (email sent from RMG to RA 20th Aug after chasing from RA on delays to commencement of new grounds maintenance contract).  This dragged on for several months. The RA subsequently made a decision to re-run the tender when the incoming factor started. This has not been possible as RMG have refused to leave. Those are the facts. 

The RA would also like residents to be aware that until the RA themselves created a scope document for which to tender the grounds maintenance contract, RMG had nothing written down to scope the maintenance work in the estate. This was the first thing the new committee asked for when starting in role Nov 2020. The tender process was supposed to start then and be concluded in time for appointment of the contract at the start of the budgetary year 1st May 2021. RMG did not deliver a spec nor any progress at all on this despite a formal complaint to their Director for Scotland, hence the RA wrote the document themselves.

The RA will update residents when the tribunal process is concluded.

It is now over 12 weeks (3 months) since the Woodilee Residents Association provided confirmation to RMG that it wished to end their role as Factor for the estate with their role due to end 30th April 2022.  Confirmation of termination was served on Friday 28th January in order to give RMG, as outgoing factor, time to conduct an orderly transition to the incoming factor (NPM).  In over 3 months RMG have still not given the RA, nor residents, a clear and final position on whether they intend to accept their role is over or whether they refuse to accept the vote and continue their role as factor (against residents’ wishes).

In the 3 months since termination RMG have sought through an external legal firm to argue that the vote conducted by the RA to seek a mandate to terminate their role was not in accordance with the deeds.  The RA refute this.  During this time RMG have also confirmed in writing to residents that they have ceased ensuring that critical health and safety checks such as the annual tree survey are completed because “NPM are taking over”.  More recently they have started to send out direct debit schedules to some residents for the upcoming budgetary year (starting 1st May).  RMG have not contacted the RA to agree a budget for the upcoming year.  The direct debit schedules do not look correct in any case given the general annual budgets from previous years.  Any resident receiving these should contact RMG for a clear stance on their position as factor.

In the interests of complete transparency below are the exchanges between the external legal firm acting on RMG’s behalf and the RA:

• 18th Feb 2022 – RMG legal challenge on the vote run
• 21st Feb 2022 – RA response to legal challenge
• 21st Feb 2022 – RMG’s email response when asked by the January 2022 tree survey had not taken place
• 25th March 2022 – RMG further legal challenge on vote run
• 28th March 2022 – RA response
• 28th March 2022 – Appendix to RA response
• 6th April 2022 – RMG further legal challenge on vote run
• 7th April – RA response
• 3rd May – RMG further legal challenge on vote run
• 4th May – RA response
• 8th Aug – RMG response (* added 3rd Dec 2022 to show complete communication trail, WRA did not respond to this, rather attended FTT instead)

Please note RMG intend to charge all legal costs for this quite lengthy back and forth to the residents of Woodilee.

Rest assured that the Factors Code of Conduct (Scotland) 2021 contains a number of clauses aimed at ensuring residents can replace factors should they so wish and there are repercussions (and recourse) for factors who fail to adhere to the code, accessible through the Tier 1 Tribunal process.

We await a final position from RMG by 30th April failing which we will proceed with a tier 1 tribunal submission.  Unfortunately we cannot advise residents on what happens from 1st May.  The incoming factor NPM are ready to start but RMG are refusing to perform any transition.

All residents should contact RMG and ask them to confirm their position, we are paying them currently to factor the estate so every resident has a right to an answer.  Likewise, while their emails (shown above) confirm they have now stopped doing their job from late January, we will request the tier 1 tribunal service to review these statements and assess what financial recourse we might have.

On 28^th January, 2022, the chair of Woodilee Residents Association (WRA) gave notice to the current estate Factor, RMG, or the WRA decision to terminate RMG as factor as of 30^th April 2022. The WRA appointed NPM as replacement factor.

Follow up emails were sent to RMG on 1 February and 3 February. A reply was received from RMG on 3 February stating “we are currently reviewing our position and will be in contact in due course”.  WRA chased RMG on 17 February, but no response was received. 

On 19 February, WRA received a letter from BTO, legal representatives of RMG requesting information on the role of the WRA and details on how the meeting to give WRA power to appoint a new factor was run.  WRA replied to this letter on 21 February answering in detail all questions posed by BTO.  No reply has been received from either BTO or RMG to this letter.

Despite multiple further attempts to contact RMG via email and telephone, no further replies have been received and RMG have refused to acknowledge the notice given and commence handover proceedings to the incoming property factor.

A formal complaint to RMG on the lack of engagement and acknowledgement of their termination was raised by the WRA Treasurer on 15 March, no response has been received to date on this complaint.

On 23 March, WRA became aware of a letter sent by RMG to the incoming factor NPM which disputes the validity of the termination of RMG as factor for the estate.  The letter states “The RA appear to have sought a vote on the right to undertake a tender process but at no stage have the owners been presented with options on factors, which the Deeds suggest is the correct process”

WRA strongly dispute that it does not have the power to terminate RMG and appoint a new factor in their place.  WRA have the power to terminate a factor and appoint a new factor following a motion being passed at an Extraordinary General Meeting of property owners held on 20^th October 2021.  The motion ““Members of the association grant the Woodilee Residents Association the authority to decide who factors Woodilee Village estate” was approved by 244 (out of 252) votes cast.  The total votes of 252 represented 29.3% of properties on the estate, far exceeding the quorum requirement of 20% defined in the Deed of Conditions for Woodilee Village. These Deeds give the residents the power “to fix the duration of the Manager’s appointment or to appoint another Manager in his, her or their place”, a power which was delegated to WRA via this motion.

Despite RMGs statement to NPM, nowhere in the Deeds is it required that a meeting of residents must be presented with options on factors.  WRA have complied with the Deeds in seeking the power from residents to remove and appoint a new factor and have acted in line with this power.

WRA also note that although RMG have not engaged with them on the termination, they appear to be presenting a contradictory position to different parties.  As noted earlier, in communications with the incoming factor, RMG are disputing the right of WRA to terminate them and appoint NPM. However, an email sent to WRA Treasurer on 22 March stated that RMG would not be appointing a contractor to complete an overdue health and safety inspection on trees around the estate as “it will be the responsibility of NPM to conduct such inspection”

On the one hand RMG appear to be fighting to remain factor on the estate, and on the other hand they are refusing to work as factor on the grounds another factor is due to takeover in May 2022.

It is a requirement of the updated Property Factors (Scotland) Act 2021 Code of Conduct for Property Factors, effective from 16 August 2021, that RMG’s Written Statement of Services (WSS) must set out ‘inter alia’, “ a clear statement confirming the property factor’s procedure for how it will co-operate with another property factor to assist with a smooth transition process in circumstances where another factor is due to of has taken over the management of property and land owned by homeowners “ [paragraph 1.5 G (21) refers].  No such statement exists in RMG’s WSS.

RMG’s failure to meet this obligation mean NPM’s transition into the role of factor will be more challenging as RMG have access to contact details for all home owners in the estate which they have refused to share.  It also means that NPM will now ultimately start afresh as factor.  RMG will be expected to explain the end of budgetary year financial position (including debt) to all residents.

WRA encourage all residents to raise formal complaints to RMG to complain about the lack of communications relating to their termination and their lack of action to meet their statutory obligation to support the incoming factor, NPM.

Because we believe residents should get access to the facts, attached here are the artefacts referenced in this update.   *Updated 5th April with additional communications

• 18th Feb 2022 – RMG legal challenge on the vote run
• 21st Feb 2022 – RA response to legal challenge
• 21st Feb 2022 – RMG’s email response when asked by the January 2022 tree survey had not taken place
• 25th March 2022 – RMG further legal challenge on vote run*
• 28th March 2022 – RA response*
• 28th March 2022 – Appendix to RA response*

Following our recent update on the appointment of NPM as factor for the estate we can confirm that it is now 7 weeks since the RA notified RMG of the residents’ decision to terminate their role on 30th April. Notification  was sent on 28th January, providing RMG with more than the three months notice specified in the Woodilee Village Deeds and in RMG’s own Service Level Agreement. RMG have not yet responded formally to the decision made by us as residents, nor have they engaged with NPM in order to support a smooth transition, as they are legally bound to do under the terms of the updated Code of Conduct Part of the Property Factors (Scotland ) Act 2011.

We believe 7 weeks is more than sufficient time for RMG to provide a formal response to the  decision of residents and to engage with the incoming factor. It is extremely disappointing that they have not yet done so.

In all the circumstances, we will press RMG to meet their legal obligations. It would also be helpful if individual residents raised  formal complaints with RMG as a first step of a possible referral to the First Tier Tribunal. Several residents are already progressing this route.

It should not be forgotten that the factor role is a supplier into us as client (the residents of the estate). We collectively pay them to perform this service. We have the right to decide who performs this service as per the deeds of servitude and conditions. The Code of Conduct for Property Factors (Scotland) updated in July 2021 is in place to ensure the will of residents is enforceable. We expect RMG to comply with the terms of that code. Letters of complaint from individual residents will be a welcome additional source of pressure in reminding them of that legal obligation.

The RA can announce that following the vote in October, when residents gave the RA a mandate to select a new factor for Woodilee Village, we have now completed a tender process and selected Newton Property Management as our new factor. They will start in role on 1st May to align with commencement of our new budgetary year when new invoices are issued to residents. We have notified RMG that we wish to terminate their role on 30th April.

Newton Property Management scored top in both our pre screening and Invitation to Tender stages. Their management fees are less than RMG. They are a local company and understand the Scottish market. They have also offered to transition over any outstanding debt, dependent on RMG being willing to pass over final account positions for each unit in the estate. Newton Property Management will be in touch with all residents in due course.

This has been a long and arduous journey over 4 and half years, across 2 formations of the RA. Several residents have dedicated considerable time to this enterprise which is essentially about getting value for money and a decent service.

We hope that RMG will continue to provide the service that residents are paying for to end April as well as supporting a professional transition to our new factor as they are duty bound to do by the Factors Code of Conduct.

Any questions please feel free to get in touch with us at contact@woodilee.org.uk

Further details on our tender process and timeline can be found here