Supply of Services Agreements
Property Letting & Management Services (Scotland)
1. Interpretation
1.1 Definitions:
Agreement the agreement between the Client and SoProperty for the supply of the Services in accordance with the Contract Details, these Conditions and any Schedules.
Available Services: the services able to be provided by SoProperty as set out in these terms.
Business Day a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.
Charges the charges payable by the Customer for the supply of the Services by the SoProperty, as set out in Contract Details.
Conditions these terms and conditions.
HMO a House in Multiple Occupation
Laws and Regulations all applicable laws, statutes, statutory instruments, orders, regulations and codes of practice (whether or not having the force of law) in force from time to time in all or part of the Territory. The Territory is as set out in the Contract Details.
Letting Fee the fee payable by the Client to SoProperty for sourcing a new tenant.
Property the property that is to be let out and that is owned by the Client, as specified in the Contract Details.
Screen carry out pre-vetting checks of prospective tenants to the level and criteria as required by the Client from time to time and Screening shall be construed accordingly.
Services the services, to be provided by SoProperty pursuant to the Agreement, as described in these terms.
1. Valuation Services:
1.1 As part of the Valuation Services SoProperty shall provide the following Services:
1.1.1 calculate a realistic rental valuation for the Property based on current market data analysis and quality/configuration of accommodation provided.
1.1.2 visit the Property and advise on any repairs, redecoration, reconfiguration or furnishing requirements that would further enhance the property for marketing.
2. Marketing and Initial Letting Services:
2.1 As part of the Marketing Services SoProperty shall provide the following services:
2.1.1 prepare any particulars including coordination of the photographer to photograph the Property.
2.1.2 if so instructed, instruct and prepare a video and floorplan of the Property.
2.1.3 provide details of the Property to suitable applicants.
2.1.4 prepare all marketing material for online advertising.
2.1.5 advertise the Property on online property portals including Zoopla, Rightmove, and at SoProperty’s discretion elsewhere.
2.1.6 arrange for prospective tenants to view the Property.
2.1.7 Screen prospective tenants.
2.1.8 carry out reference checks.
2.1.9 provide the Client with regular feedback and keep them informed of all offers.
2.1.10 Arranging the first tenancy including negotiating terms and, unless the Client instructs SoProperty not to, preparation of a tenancy agreement in accordance with applicable Laws and Regulations.
2.1.11 Collection of and, if instructed by the Client, lodging any deposit payable by the tenant with a government approved deposit scheme.
2.1.12 Preparation of an inventory at the beginning of the tenancy (additional charge for this service).
2.1.13 Dealing with formal check in of the tenant.
2.1.14 take utility meter readings, close client’s utility accounts if required, arrange future rental payments.
2.1.15 Ensuring that the Client has the current electrical and gas meter readings.
2.1.16 Closing of Client’s utility accounts if instructed.
2.1.17 Making arrangements for future rental payments.
2.1.18 Inform client of any upcoming tenancy notice periods and arrange to serve notice to terminate such tenancy or to negotiate new terms if instructed by the Client (additional charge for this service, please see Part 3 of the Schedule)
Additional Work SoProperty’s Marketing Services and Initial Letting Service charges cover the work described above. Unless SoProperty are providing Property Management Services, any additional work will shall be at an additional fee.
3. Property Management Service:
3.1 As part of the Property Management Service SoProperty shall provide the following services:
3.1.1 Retention of a float of £200, payable by the Client to SoProperty.
3.1.2 Acting as main point of contact for the tenant throughout the term of the tenancy.
3.1.3 Monthly collection of rent.
3.1.4 regular property inspection to ensure that the condition of the Property is being maintained satisfactorily. Please note that responsibility for and the management of an empty property is not included and will only be carried out through specific written agreement with SoProperty.
3.1.5 Co-ordination of any maintenance work that requires attention on a routine or emergency basis and settling the account from the ‘Float’ or pre agreed monies received from the Client.
3.1.6 Arrangement of any statutory testing that is required e.g. Electrical Inspections, Gas Safety Certificates & Energy Performance Certificate.
3.1.7 Inform client of any upcoming tenancy notice periods and arrange to serve notice to terminate such tenancy or to negotiate new terms if instructed by the Client (additional charge for this service).
Services Start Date the day on which SoProperty is to start provision of the Services, as set out in the Contract Details.
3.2 Interpretation:
3.2.1 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that legislation or legislative provision.
3.2.2 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
3.2.3 A reference to writing or written includes fax and email.
4. Commencement and term
4.1 The Agreement shall commence on the date when it has been signed and delivered by both parties and shall continue, unless terminated earlier in accordance with clause 18 (Termination) or this clause, this Agreement shall continue for 12 months (Initial Term) and shall automatically extend for 12 months (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than 60 days before the end of the Initial Term or the relevant Extended Term, to terminate this Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
5. Supply of services
5.1 SoProperty shall supply the Services to the Client from the Services Start Date in accordance with the Agreement.
5.2 In supplying the Services, the SoProperty shall:
5.2.1 perform the Services with reasonable care and skill; and
5.2.2 use reasonable endeavours to perform the Services in accordance with the service description set out above.
6. Valuation Services:
6.1 As part of the Valuation Services SoProperty shall provide the following Services:
6.1.1 calculate a realistic rental valuation for the Property based on current market data analysis and quality/configuration of accommodation provided.
6.1.2 visit the Property and advise on any repairs, redecoration, reconfiguration or furnishing requirements that would further enhance the property for marketing.
7. Marketing and Initial Letting Services:
7.1 As part of the Marketing Services SoProperty shall provide the following services:
7.1.1 prepare any particulars including coordination of the photographer to photograph the Property.
7.1.2 if so instructed, instruct and prepare a video and floorplan of the Property.
7.1.3 provide details of the Property to suitable applicants.
7.1.4 prepare all marketing material for online advertising.
7.1.5 advertise the Property on online property portals including Zoopla, Rightmove, and at SoProperty’s discretion elsewhere.
7.1.6 arrange for prospective tenants to view the Property.
7.1.7 Screen prospective tenants.
7.1.8 carry out reference checks.
7.1.9 provide the Client with regular feedback and keep them informed of all offers.
7.1.10 Arranging the first tenancy including negotiating terms and, unless the Client instructs SoProperty not to, preparation of a tenancy agreement in accordance with applicable Laws and Regulations.
7.1.11 Collection of and, if instructed by the Client, lodging any deposit payable by the tenant with a government approved deposit scheme.
7.1.12 Preparation of an inventory at the beginning of the tenancy (additional charge for this service).
7.1.13 Dealing with formal check in of the tenant.
7.1.14 take utility meter readings, close client’s utility accounts if required, arrange future rental payments.
7.1.15 Ensuring that the Client has the current electrical and gas meter readings.
7.1.16 Closing of Client’s utility accounts if instructed.
7.1.17 Making arrangements for future rental payments.
7.1.18 Inform client of any upcoming tenancy notice periods and arrange to serve notice to terminate such tenancy or to negotiate new terms if instructed by the Client (additional charge for this service)
Additional Work SoProperty’s Marketing Services and Initial Letting Service charges cover the work described above. Unless SoProperty are providing Property Management Services, any additional work will shall be at an additional fee.
8. Property Management Service:
8.1 As part of the Property Management Service SoProperty shall provide the following services:
8.1.1 Retention of a float of £200, payable by the Client to SoProperty.
8.1.2 Acting as main point of contact for the tenant throughout the term of the tenancy.
8.1.3 Monthly collection of rent.
8.1.4 regular property inspection to ensure that the condition of the Property is being maintained satisfactorily. Please note that responsibility for and the management of an empty property is not included and will only be carried out through specific written agreement with SoProperty.
8.1.5 Co-ordination of any maintenance work that requires attention on a routine or emergency basis and settling the account from the ‘Float’ or pre agreed monies received from the Client.
8.1.6 Arrangement of any statutory testing that is required e.g. Electrical Inspections, Gas Safety Certificates & Energy Performance Certificate.
8.1.7 Inform client of any upcoming tenancy notice periods and arrange to serve notice to terminate such tenancy or to negotiate new terms if instructed by the Client (additional charge for this service).
9. Client's obligations
9.1 The Client shall:
9.1.1 co-operate with the SoProperty in all matters relating to the Services;
9.1.2 provide, for the SoProperty, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Property and;
9.1.3 provide, in a timely manner, such information as SoProperty may require, and ensure that it is accurate and complete in all material respects.
9.2 If SoProperty’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, SoProperty shall:
9.2.1 not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
9.2.2 be entitled to payment of the Charges despite any such prevention or delay; and
9.2.3 be entitled to recover any additional costs, charges or losses SoProperty sustains or incurs that arise directly or indirectly from such prevention or delay.
9.3 The Client confirms that he/she is the sole or joint owner of the Property and has the right to rent out the Property under any terms of mortgage. Where necessary, the Client confirms that permission to let has been granted by the mortgage provider. The Client authorises SoProperty to carry out the Services.
9.4 The Client acknowledges that where the Contract is in respect of Valuation Services or Marketing and Initial Lettings Services only that SoProperty has no responsibility for the day to day management of the Property. Upon signature of a tenancy agreement between the Client and a tenant, SoProperty shall take the meter readings and prepare the inventory (at the additional charge). Thereafter the Client shall be responsible for Property and the management of the tenancy agreement in its entirety, including lodging the security deposit with a government approved Security Deposit Scheme.
10. Property Management
10.1 This clause 10 applies where SoProperty is providing Property Management Services.
10.2 The Client shall pay £200 (“Float”) to SoProperty, within 14 days of signing the agreement, to a bank account nominated in writing by SoProperty. Such funds shall be used by SoProperty for minor repairs.
10.3 Any necessary repair and maintenance works to be carried out up to the value of £200 will be instructed without consultation with the Client, unless otherwise instructed in writing.
10.4 Any necessary repair and maintenance works to be carried out in excess of £200 shall not be commenced until approved by the Client. The charges payable by the Client to SoProperty for arranging such works shall be [10]% plus VAT of total cost of works.
10.5 In the event that tenants vacate the Property before the end of the tenancy for any reason SoProperty shall, if agreed between the Client and SoProperty, market the Property per the Marketing and Initial Letting Services in accordance with these Conditions. The Client agrees to pay the Letting Fee as set out in Part 3 of the Schedule in the event that a new tenant is sourced successfully. The Letting Fee shall be deducted in full from the first month’s rental payment, paid direct to SoProperty. Any surplus still owed will be paid within 14 days of the start date of any tenancy.
10.6 In the event that a tenant vacates the Property before the end of a tenancy for any reason, SoProperty shall retain the full Letting Fee.
10.7 SoProperty shall not provide Property Management Services in the event of the Property having no tenants.
10.8 If, for any reason, it should arise that the Client wishes to evict the tenant, then the Client must seek independent legal advice and SoProperty shall have no responsibility and bear no liability in this regard.
10.9 Where the Client intends to use the Property as an HMO Property, the Client is responsible for ensuring the Property is fully compliant with all applicable Laws and Regulations and will seek all the necessary legal and safety certificates to let out a Property that is categorised as an HMO Property. It is the Client’s responsibility to engage the services of an independent HMO specialist to obtain the required licenses for the HMO Property. SoProperty shall have no responsibility and bear no liability in this regard. Any upgrading works or assistance SoProperty provides in respect of an HMO Property in order to ensure compliance with the applicable Laws and Regulations are outside the scope of the standard Property Management Service and additional charges will apply for such services.
11. Data protection
Where the Client is an organisation, the parties shall comply with their data protection obligations as set out in the Privacy Notice.
12. Travel Expenses
Any expenses incurred by SoProperty in travelling to and from the Property to provide the Services shall be payable by the Client to SoProperty.
13. Charges and payment
13.1 In consideration for the provision of the Services, the Client shall pay SoProperty the Charges in accordance with this clause 20.
13.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to SoProperty at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
13.3 In the case of Valuation Services and Marketing and Initial Lettings Services, SoProperty shall submit invoices for the Charges plus VAT if applicable to the Client on completion of each of the Services. Each invoice shall include all reasonable supporting information required by the Client.
13.4 in the Case of Property Management Services, SoProperty shall deduct the Charges from the monthly rental income due by the tenant to the Client.
13.5 Any additional services carried out by SoProperty that are not included in Part 1 of the Schedule shall be at an additional charge. Such additional services shall not be provided by SoProperty unless agreed by both Parties. The charge for such additional services shall be invoiced upon completion of the additional services.
13.6 The Client shall pay each invoice due and submitted to it by SoProperty, within 30 days of receipt, to a bank account nominated in writing by SoProperty.
13.7 If the Client fails to make any payment due to SoProperty under the Agreement by the due date for payment, then, without limiting SoProperty's remedies under clause 18 (Termination):
13.7.1 the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of Scotland's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
13.7.2 SoProperty may suspend all Services until payment has been made in full.
13.8 All amounts due under the Agreement from the Client to SoProperty shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
14. Insurance
14.1 SoProperty does not accept responsibility for non-payment of rent, damage or other default or loss caused by tenants. It is recommended that the Client put in place an appropriate insurance policy to cover for this eventuality.
14.2 The Client shall be responsible for the property and contents being adequately insured and that the insurance policy covers the situation where the Property is let.
14.3 In the event that SoProperty agrees to assist the Client with insurance claims as an additional service, SoProperty shall have no liability in connection with such claims. Additional charges will be payable by the Client to SoProperty.
15. Exclusivity
15.1 The Client agrees that, for the duration of the Agreement, SoProperty shall be its sole and exclusive provider of marketing services, letting services and property management services in connection with the Property.
16. Compliance
16.1 SoProperty has no responsibility or liability for the Client’s legal obligations as landlord.
16.2 The Client confirms that they are aware of their legal obligations as landlord. The Client shall ensure that the Property is made available for letting in a safe condition and in compliance with the necessary Laws and Regulations. Whilst SoProperty shall take all reasonable steps to audit that relevant equipment is checked at the beginning of the tenancy or during the tenancy as required, this does not relieve the Client of his/her legal responsibilities.
17. Limitation of Liability
17.1 References to liability in this clause 17 include every kind of liability arising under or in connection with the Agreement including but not limited to liability in contract, delict (including negligence), misrepresentation, restitution or otherwise.
17.2 Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited, to liability for:
17.2.1 death or personal injury caused by negligence;
17.2.2 fraud or fraudulent misrepresentation; and
17.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
17.3 Subject to clause 24.2 SoProperty shall not be liable to the Client for any loss of profits, loss of sales or business; loss of agreements or contracts, loss of or damage to goodwill or indirect or consequential loss whatsoever.
17.4 Subject to clause 24.2, SoProperty’s total liability to the Client shall not exceed the Charges payable by the Client under the Agreement.
18. Termination
18.1 Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:
18.1.1 the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
18.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
18.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
18.1.4 the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
18.2 Without affecting any other right or remedy available to it, SoProperty may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment.
18.3 Where this agreement is in respect of Valuation Services and Marketing Services and Initial Letting Services only, the Agreement shall immediately terminate on completion of those Services in full by SoProperty.
18.4 On termination of the Agreement for whatever reason:
18.4.1 the Client shall immediately pay to SoProperty Supplier all of SoProperty's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SoProperty may submit an invoice, which shall be payable immediately on receipt;
18.4.2 any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect; and
18.4.3 termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
19. General
19.1 Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving 28 days' written notice to the affected party.
19.2 Assignation and other dealings.
19.2.1 The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without SoProperty's prior written consent.
19.2.2 SoProperty may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Agreement.
19.3 Entire agreement. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
19.4 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.5 Waiver.
19.5.1 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
19.5.2 A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19.6 Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 26.6 shall not affect the validity and enforceability of the rest of the Agreement.
19.7 Notices.
19.7.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
19.7.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at the address as specified in the Contract Details; or
19.7.1.2 sent by email to the address specified in the Contract Details.
19.7.2 Any notice or communication shall be deemed to have been received:
19.7.2.1 if delivered by hand, at the time the notice is left at the proper address;
19.7.2.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
19.7.2.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, where business hours resume. In this clause 19.7.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
19.7.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
19.8 Counterparts.
19.8.1 This Agreement may be executed in any number of counterparts.
19.8.2 Where executed in counterparts:
19.8.2.1 this Agreement shall not take effect until each of the counterparts has been delivered;
19.8.3 delivery shall take place when the date of delivery is agreed between the parties after execution of this agreement as evidenced by the date inserted at the start of this Agreement.
19.8.4 The Client hereby authorises SoProperty or its agent to insert the date of delivery agreed above on the front page of this Agreement.
19.8.5 If this agreement is not executed in counterparts, this Agreement shall be delivered on the date inserted on the front page of this Agreement or, if no such date is inserted, the date on which the last party signed this Agreement.
19.9 Third party rights. Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of this Agreement .The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
19.10 Governing law. The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of Scotland.
19.11 Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.