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Scotland Upper Tribunal Decisions


You are here: BAILII >> Databases >> Scotland Upper Tribunal Decisions >> Rose Quarcoo against Homesbrook Factoring LTD (Upper Tribunal - Housing and Property Chamber) [2025] UT 38 (10 June 2025)
URL: http://www.bailii.org/scot/cases/ScotUT/2025/2025ut38.html
Cite as: [2025] UT 38

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2025UT38
Ref: UTS/AP/25/0045
DECISION OF
Sheriff Jillian Martin-Brown
ON AN APPLICATION FOR PERMISSION TO APPEAL
(DECISION OF UPPER TRIBUNAL FOR SCOTLAND)
IN THE CASE OF
Mrs Rose Quarcoo
Appellant
- and -
Homesbook Factoring Limited
Respondent
FTS Case Reference: FTS/HPC/PF/23/4448
Forfar, 10 June 2025
Decision
Permission to appeal is REFUSED.
Reasons For Decision
Background
1.
The appellant (Mrs Quarcoo) made an application for a Property Factor Enforcement
Order against the property factors (Homesbook Factoring Limited) under the Property
Factors (Scotland) Act 2011 (FTS/HPC/PF/23/4448) in respect of the property at Flat 37C
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Lenzie Way, Glasgow. An evidential hearing took place on 28 January 2025 and her
application was refused on 30 January 2025. The First-tier Tribunal for Scotland ("FTS")
decided that the property factors had not failed to comply with any of Overarching
Standards of Practice 2, 3 & 4, nor sections 1 (A-F), 2.1, 2.2, 2.5, 3.3, 4.1, 4.3, 4.4, 4.5, 4.6,
4.7, 4.8, 4.9, 7.1, 7.2, 7.9, 7.11 nor 7.12 of the Property Factors Code of Conduct.
2.
The appellant applied to the FTS to appeal the decision. The FTS determined that the
appellant had not identified a stateable ground of appeal on a point of law and that the
request for permission to appeal was entirely without merit. Leave to appeal was
refused on 11 March 2025.
3.
The appellant submitted an application to appeal to the Upper Tribunal on 22 April
2025, outwith the time limit of 30 days of the date the decision was sent to her. She
requested an extension of time for submitting her appeal under rule 5(3) of the Upper
Tribunal for Scotland (Rules of Procedure) Regulations 2016. A permission to appeal
hearing took place on 9 June 2025 by WebEx, attended by Mrs Quarcoo and Mr Rodger
on behalf of the respondent.
Grounds of Appeal
4.
In the event that the deadline was extended, the appellant sought leave to appeal on five
grounds as follows:
(ii) misapplication of legal principles governing factor appointment;
(ii) improper evidentiary assessment;
(iii) misinterpretation of the Property Factors Code of Conduct;
(iv) procedural impropriety; and
(v) incorrect framing of the legal issue.
Extension of Time
5.
The appellant explained that the decision was sent to her on 18 March 2025 and she
submitted an application to appeal on 17 April 2025, within the 30 day time limit.
However, she erroneously sent it to the FTS rather than the Upper Tribunal. Upon being
informed by the FTS on 22 April 2025 to send her application to the Upper Tribunal, she
did so the same day.
6.
The respondent did not oppose an extension to the time for submitting an appeal.
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7.
I considered that the appellant had made an administrative error, which was
understandable in the absence of legal representation. Once notified of her error, she
had taken immediate action to rectify it and the respondent was not prejudiced by an
extension of the time. In all the circumstances, I determined it was in the interests of
justice to allow an extension of time.
Submissions
8.
Moving on to the grounds of appeal, the appellant had lodged detailed written
submissions, upon which she intended to rely. In relation to ground (i), she submitted
that the FTS had erred by finding that a valid contractual relationship existed despite
non-compliance with the title deeds and statutory requirements that a factor may only
be appointed through a majority vote at a properly convened meeting with due notice
given to all proprietors.
9.
The respondent submitted that it did comply with the title deeds and statutory
requirements by obtaining mandates from over 51% of the proprietors, calling a meeting
and giving all of the proprietors notice as set out in the title deeds.
10. In relation to ground (ii), the appellant submitted that the FTS accepted unverified
mandates as evidence of the respondent's lawful appointment without adequate
scrutiny of their validity or whether they constituted a majority as required by the deed
of conditions.
11. The respondent submitted that the FTS had examined the matter very thoroughly and
concluded that the statutory requirements were met. Mandates could be signed prior
to the meeting and proxy votes obtained.
12. In relation to ground (iii), the appellant submitted that the FTS failed to recognise that
non-compliance with the Code requiring a written statement of services to be provided
was not merely a technical breach and was instead a mandatory requirement. The FTS
also erred by accepting constructive notice rather than requiring evidence of direct
written communication. Her tenant had not received any mail from the respondent
addressed to her at the property.
13. The respondent submitted that a written statement of services was handed out at every
meeting and posted to the addresses it had on file for all of the proprietors. This factual
dispute had been considered and determined at the evidential hearing.
14. In relation to ground (iv), the appellant submitted that the FTS refused to consider
relevant documentary evidence submitted by her on 15 January 2025, including emails
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demonstrating that the appellant had never received direct notification of the
respondent's appointment; affidavits from neighbouring property owners confirming
they had likewise never received formal notification; and a subject access request
indicating no records of the claimed attendance figures for the meeting of 30 April 2019.
15. The respondent submitted that it followed the debt recovery procedures correctly and
wrote to the appellant's home address as well as the property. Evidence about this point
had been submitted to the FTS. In addition to correspondence, there was signage with
contact information for the respondent. She must have noticed the cleaning, grounds
maintenance, annual fire alarm, replacement of lights, etc.
16. Finally, in relation to ground (v), the appellant submitted that the FTS erred by focusing
on whether the respondent was acting as a factor rather than whether they were legally
appointed according to the requirements in the title deeds burdens section.
17. The respondent submitted that it was validly appointed and detailed evidence had been
considered by the FTS about how and why it was appointed; the mandates obtained;
when it was appointed; and the work done to the development. This was simply an
attempt by the appellant to avoid paying her debt in respect of unpaid property
factoring charges.
Decision
18. As highlighted by the FTS in its decision to refuse permission to appeal dated 11 March
2025, the appellant's entire case was predicated on an assertion that she never received
from the property factors any communication whatsoever until they tried to enforce a
debt for unpaid factoring charges, therefore she did not know that they were acting as
factors for the development. The FTS, having heard from both parties at the evidential
hearing, decided on the balance of probabilities that it preferred the evidence of the
respondent. The FTS did not regard it as credible that the appellant had not received
any communication whatsoever from the respondent, either at the property or at her
home address.
19. Assessments of credibility and their application to factual disputes are matters which
the FTS is best placed to make, having the opportunity to hear and see witnesses giving
their evidence. The role of the Upper Tribunal at this stage is to consider whether there
are arguable grounds of appeal on a point of law.
20. In relation to ground (i), the FTS explained in its decision of 30 January 2025 (para. 41)
that having carefully considered all the evidence before it, on the balance of
probabilities, the appellant had been aware of the appointment of the property factors and
that she did not first learn of their appointment when she received a letter from debt
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recovery agents on 14 September 2023. Having made that factual decision, the FTS
rejected the appellant's contention that she was not bound by any written statement of
services because the property factors had not been validly appointed. Whilst it was clear
that the appellant disagreed with the decision of the FTS on the facts, I did not consider
that she had set out a basis as to how the FTS had erred in law and accordingly, refused
this ground of appeal.
21. In relation to ground (ii), the FTS explained in its decision of 30 January 2025 (paras 37
­ 41) that the standard of proof was the balance of probabilities. It explained why it
preferred the evidence of the respondent where there was conflicting evidence and the
reasons for its findings on the credibility of the appellant. Again, whilst it was clear that
the appellant disagreed with the decision of the FTS on the facts, I did not consider that
she had set out a basis as to how the FTS had erred in law and accordingly, refused this
ground of appeal.
22. In relation to ground (iii), the FTS explained in its decision of 30 January 2025 (para. 42)
that it accepted that the process followed had not happened within the timescales
indicated in the written statement of services but the use of the word "may" gave the
respondent discretion to decide whether to carry out certain actions and pursue debt,
which had worked to the appellant's advantage.
23. Separately, the FTS explained (para. 40) that it did not accept the appellant's point about
the property factors having no proof of postage. The FTS' view was that it would be
normal practice for a property factor to use a mail-merge facility or to send generic
letters in personalised envelopes. The FTS did not presume constructive notice. Instead,
it rejected the appellant's position as not credible and preferred the evidence of the
respondent.
24. Whilst it was clear that the appellant disagreed with the decision of the FTS on both of
these points, I did not consider that she had set out a basis as to how the FTS had erred
in law and accordingly, refused this ground of appeal.
25. In relation to ground (iv), as highlighted by the FTS in its decision to refuse permission
to appeal dated 11 Match 2025, it did have regard to the evidence submitted late by the
appellant. The decision of 30 January 2025 made reference (para. 37) to one of the
documents provided, namely an email from a local councillor to a former resident. It
was not necessary for the FTS to deal with every piece of material or even every point
(AJ (Cameroon) v Secretary of State for the Home Department [2007] EWCA Civ 373). I did
not consider that the appellant had set out a basis as to how the FTS had erred in law
and accordingly, refused this ground of appeal.
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26. Finally, in relation to ground (v), the FTS explained in its decision of 30 January 2025
(para. 37) that it was clear that the property factors had in fact been appointed to factor the
development. It did not conclude that the mere provision of services created a
contractual obligation. Instead, it rejected the appellant's position as not credible and
preferred the evidence of the respondent. I did not consider that the appellant she had
set out a basis as to how the FTS had erred in law and accordingly, refused this ground
of appeal.
Refusal of Permission
27. Permission can only be granted if there are arguable grounds of appeal on a point of law
(section 46 of the Tribunals (Scotland) Act 2014). As that statutory test is not met in
relation to any of the five grounds, permission is refused.
Sheriff Jillian Martin-Brown
Member of the Upper Tribunal for Scotland

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