This item was published during the term of a previous administration that ended in April 2007
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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.