The panel members were Mr Neville Pedersen MARLA (Honoured) FNAEA (Honoured) (member panellist acting as the Chairperson for the Tribunal), Mr Michael Jones PPNAEA (Honoured) MARLA (member panellist) and Mr Stephen Shaw (lay panellist). The presenting Case Officer for Propertymark was Miss Laura Hanley-Gorton and Ms Beard was in attendance at the hearing accompanied by Ms Ellen Hamilton, Office Manager of Fineholm.
Allegations
The Tribunal considered the allegations set out in the case summary sent to Ms Beard on 8 April 2021. It was alleged that Ms Beard had acted in contravention of the requirements of the following Propertymark Conduct and Membership Rules.
- Conduct Rule 1.1: Introduction to the Accounting Rule (in particular Rule 1.1.3)
- Conduct Rule 1.7: Access to, or availability of, Client Money
- Conduct Rule 1.14: Payments out of a Client (Bank) Account
- Conduct Rule 1.15: Timing of Banking (in particular Rule 1.15.2)
- Conduct Rule 1.18: Record keeping
- Conduct Rule 1.23: Reconciliations – format and frequency
- Conduct Rule 13: General duty to uphold high standards of ethical and professional behaviour (in particular Rule 13.1.2)
- Conduct Rule 21: Continuing professional development (CPD) rules
Decision
The Tribunal considered the submissions from the Case Officer and Ms Beard and after deliberation came to the following findings:
- Conduct Rule 1.1.3: Admitted
- Conduct Rule 1.7: Admitted
- Conduct Rule 1.14: Admitted
- Conduct Rule 1.15.2: Proven
- Conduct Rule 1.18: Admitted
- Conduct Rule 1.23: Proven
- Conduct Rule 13.1.2: Proven
- Conduct Rule 21: Admitted
Ms Beard submitted a plea in mitigation.
Santions
- Conduct Rule 1.1.3: £250
- Conduct Rule 1.7: £250
- Conduct Rule 1.14: £250
- Conduct Rule 1.15.2: Caution
- Conduct Rule 1.18: £250
- Conduct Rule 1.23: Caution
- Conduct Rule 13.1.2: Caution
- Conduct Rule 21: Caution
In addition, costs were imposed of £294 against Ms Beard in favour of Propertymark.
Closing statement
The Tribunal made the following statement:
'The Tribunal would like to thank Ms Beard and her Office Manager, Ellen Hamilton, for their attendance at today’s Tribunal Hearing and for their input which has been most helpful.
From the evidence presented there has been a lack of financial control over a period of time caused, in part, by staffing issues. From information provided and accepted by the Tribunal this has been addressed and whilst Ms Beard is no longer in membership, she is endeavouring to follow the rules as if she were. The Tribunal felt this was a case of poor financial control rather than deliberate intent in relation to client account shortfall.
The penalties levied indicate the thoughts of the Tribunal into the seriousness of the breaches against the level of penalty that could have been imposed. We welcome the fact that Ms Beard is endeavouring to follow Propertymark rules and perhaps in due course you may consider re-applying for membership of Propertymark.'
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Allegations
The Tribunal considered the allegations set out in the case summary sent to Ms Beard on 8 April 2021. It was alleged that Ms Beard had acted in contravention of the requirements of the following Propertymark Conduct and Membership Rules.
The Property Ombudsman Code of Professional Practice for Residential Letting Agents in Scotland
- 1. General Obligations
1(b) You (*) must comply with this Code of Professional Practice. You must comply with all laws relating to the letting and management of residential property and in particular to The Letting Agent Code of Practice (Scotland) Regulations 2016, the Private Housing (Tenancies) (Scotland) Act 2016, the Housing (Scotland) Acts 1988, 2001, 2006, 2010 and 2014, Tenancy Deposit Schemes (Scotland) Regulations 2011, Data Protection Act 1998, Competition Act 1998, the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), Business Protection from Misleading Marketing Regulations 2008 (BPRs), Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, Energy Act 2011 (Green Deal), Immigration Act 2014, Rent (Scotland) 1984 and all other current and relevant primary, secondary and devolved legislation.
1(c) You must ensure that all staff are fully conversant with all aspects of the Code and their legal responsibilities. Such staff must observe the Code and their legal responsibilities in all their dealings with consumers. You must comply with all laws relating to the letting of residential property and all other current and relevant legislation.
- 8. Viewing and Access to Premises
8(f) Access to a property may be required by you, or an authorised third party on behalf of the landlord (e.g. a surveyor, builder, tradesman, etc.) for the purpose of viewing the condition, state of repair and/or to fulfil related statutory obligations and/or to carry out repairs. If you hold the key, the tenant must be given the appropriate minimum notice of 24 hours or that prescribed by law, of the appointment (unless agreed otherwise with the tenant beforehand), except in cases of genuine emergency. Notwithstanding providing the tenant with reasonable notice to access a property, express consent from the tenant to do so should be obtained. If a tenant refuses access, you, the landlord or any third party have no right to enter the property using the retained keys without a warrant.
Propertymark Conduct and Membership Rules
- Conduct rule 13: General duty to uphold high standards of ethical and professional behaviour
- Conduct rule 18: Information sharing
- Conduct rule 21: Continuing professional development (CPD) rules
Decision
The Tribunal accepted Ms Beard’s admittance of the breaches and asked consequent questions of her.
Code of Practice 1b/1c - Admitted.
Code of Practice 8(f) - Admitted.
- Code of Practice 1b/1c: Admitted
- Code of Practice 8(f): Admitted
- Conduct rule 13: Admitted
- Conduct rule 18: Admitted
- Conduct rule 21: Withdrawn
Ms Beard submitted a plea in mitigation.
Sanctions
- Code of Practice 1b/1c: Caution
- Code of Practice 8(f): £250
- Conduct rule 13: £250
- Conduct rule 18: £100
In addition, costs were imposed of £294 against Ms Beard in favour of Propertymark.
Closing statement
The Tribunal made the following statement:
'The Tribunal thanks Ms Beard for her attendance today.
The case against Fineholm Letting Services of which Ms Beard is a Director highlights the need to ensure that all members of staff are fully aware of and comply with the rules regarding keys and access to property. This has been a salutary lesson to Miss Beard who has already faced a £1200 fine from the FTT for Scotland.
The Tribunal has been made aware of changes and procedures at Fineholm Letting Services to prevent a re-occurrence of this situation.'
Download the full report
The downloadable report shows the full details of the rules involved in this case.
Allegations
The Tribunal considered the allegations set out in the case summary sent to Ms Beard on 8 April 2021. It was alleged that Ms Beard had acted in contravention of the requirements of the following Propertymark Conduct and Membership Rules.
- Conduct rule 1.1: Introduction to the Accounting Rule
- Conduct rule 1.7: Access to, or availability of, Client Money
- Conduct 1.14: Payments out of a Client (Bank) Account
- Conduct 1.15: Timing of Banking (in particular 1.15.2)
- Conduct 1.23: Reconciliations – format and frequency
- Conduct 13: General duty to uphold high standards of ethical and professional behaviour
- Conduct 21: Continuing professional development (CPD) rules
Decision
The Tribunal considered the submissions from the Case Officer and Ms Beard and after deliberation came to the following findings:
- Conduct rule 1.1.3: Admitted
- Conduct rule 1.7: Admitted
- Conduct 1.14: Admitted
- Conduct 1.15.2: Admitted
- Conduct 1.23: Admitted
- Conduct 13: Admitted
- Conduct 21: Withdrawn
Ms Beard submitted a plea in mitigation.
Sanctions
- Conduct rule 1.1.3: £250
- Conduct rule 1.7: £250
- Conduct 1.14: £250
- Conduct 1.15: Caution
- Conduct 1.23: Caution
- Conduct 13: Caution
In addition, costs were imposed of £294 against Ms Beard in favour of Propertymark.
Closing statement
The Tribunal made the following statement:
'The Tribunal would like to thank Ms Beard and her Office Manager, Ellen Hamilton, for their attendance at today’s Tribunal Hearing and for their input which has been most helpful.
From the evidence presented there has been a lack of financial control over a period of time caused, in part, by staffing issues. From information provided and accepted by the Tribunal this has been addressed and whilst Ms Beard is no longer in membership, she endeavours to fulfil and follow the rules as if she were.
The Tribunal felt this was a case of poor financial control rather than deliberate intent in relation to client account shortfall. The penalties levied indicate the thoughts of the Tribunal into the seriousness of the breaches against the level of penalty that could have been imposed.'
Download the full report
The downloadable report shows the full details of the rules involved in this case.
