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New rights for tenement flat owners

02/02/2004

Changes to Scotland's property law which will benefit private home owners were unveiled today.

The Tenements (Scotland) Bill will grant new rights to over 1.4 million home-owners living in tenements and buildings such as modern flats and high rise blocks, ensuring a fairer deal when it comes to the repair and maintenance of their homes.

The proposed new law will close loopholes in existing laws, which can result in essential repair work on private properties being postponed for years or in some cases, never being done at all.

Deputy Communities Minister Mary Mulligan said:

"We want to see everyone in Scotland living in a warm, safe home. Most home-owners want to ensure their homes are well looked after. The changes we are announcing today will make sure that basic repair and maintenance work can be carried out - even if a minority in a tenement property refuse to co-operate or pay for their share of the work.

"It will also make it easier for home-owners in a shared property to work together to maintain the shared areas of their buildings, such as the close, stair or roof.

"The new law will create a fairer system for repair work and will mean that neighbour disputes can be resolved more quickly and fairly."

Under the existing system, the conditions of management and maintenance of tenement buildings are usually set out in the title deeds of the property.
Where this is not the case, a default common law has been developed by the courts to fill the gap. In practice, this has meant that unanimity is required for any repair or maintenance work on shared parts of the property, sometimes resulting in repair work on the entire property being delayed or even thwarted by a single resident.

The main purpose of the new Bill is to modernise the common law rules and to clarify who owns which part of a tenement. It aims to create a fairer system of shared responsibility for maintenance of tenement buildings and to introduce a statutory system of management of tenements, where these are not set out in the title deeds.

The key changes the new Bill seeks to introduce are:

  • Every tenement will have a management scheme to set out the basic framework for maintenance and management of the tenement. Often the title deeds will set this out but when they don't, the provision of the Tenement Management Scheme (introduced by the Bill) will apply. For instance, if the title deeds don't specify how the cost of maintenance is to be divided, the Tenement Management Scheme will apportion the costs between the owners (in most cases they will pay an equal share). Another example of this could be if the title deeds don't specify how decisions are to be reached, the Tenement Management Scheme will set out how this is to be done.
  • Majority decision making will apply where no decision making procedure is provided for in the title deeds. In other words, if the majority in a property decide to have repairs or maintenance work carried out, the minority will be obliged to pay their share. Improvement, as distinct from maintenance, works will still be subject to unanimous agreement, unless
    they are incidental to any maintenance works
  • The Tenement Management Scheme will include a list called 'scheme property'. This will mean that unless the title deeds say otherwise (for example if they state that a business taking up a larger space in the tenement should pay more), every owner will be obliged to contribute, in most cases equally, to the cost of maintaining the most important parts of the tenement - such as the roof and the external walls

The Bill also contains provisions on a number of other aspects of tenement management, including ensuring emergency access for repair work, compulsory insurance and the liability of incoming home-owners for repairs

This Bill is the third in a series of laws to modernise and improve Scotland's home-ownership legislation. It follows the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003. These pieces of legislation all implement Reports of the Scottish Law Commission and they are all based on draft Bills prepared by the Commission.

The Tenements Bill was the subject of a public consultation launched in March 2003. Responses to consultation generally welcomed the proposals in the draft Bill.

Where a tenement already benefits from appropriate title deeds, they will continue to take precedence over legislation. In other words, the new law will only affect properties where the title deeds do not specify other appropriate arrangements, or if they are defective. This is to ensure that the most relevant and appropriate system of tenement management is in place for individual properties.

Under the Bill, a tenement will not only include typical tenement flats but also modern flat developments, high-rise tower blocks and villas which have been converted into two or more flats. It applies to commercial as well as residential properties.