The Tenements (Scotland) Act 2004 was introduced to set out the rights and obligations of all individuals living in flats and tenements in Scotland. The new legislation was introduced to replace the old-fashioned common law of the tenement. Under the old-fashioned system, the conditions of maintenance of tenements were usually set out in the title deeds of the property. If this was not the case then the Common Law of tenements applied, meaning an agreement would be required for any repair or maintenance work on share parts of the property.
The 2004 Act was introduced replacing the Common Law, known as the default law. The new act brought with it modern rules which allowed for repairs, as well as clarification of ownership of parts of the tenement if the title deeds do not already make that clear. The act sets a decision-making structure that makes it easier to carry out repairs and maintenance without disagreement between owners. In most cases this will mean common repairs are carried out based on an agreement of the majority owners rather than a unanimous vote and being vetoed by their neighbours.
The main principle of the 2004 Act is that all tenements will have a scheme for management and maintenance, however not all tenements will have the same scheme. The scheme for an individual tenement will be one of:
Title Deeds
Title Deeds will continue to be the key legal guardian of tenements’ rights and duties when it comes to common repairs. Where there are gaps in the deeds, or where clauses are unworkable, the new rules will apply. The provisions in title deeds have allowed many buildings to be maintained in good repair for over a century. Modern title deeds often have very comprehensive and quite sophisticated provisions, but if their Deeds do not fully cover certain vital common repairs, such as repairs to the roof or stairs, then the Tenements Act will fill these gaps.
The Tenement Management Scheme
The Tenement Management Scheme is a default management scheme which will ensure that every tenement in Scotland, existing or future-built, will have the correct rules for maintenance and management. The tenement management scheme will also ensure title deeds which are silent on a particular matter will have the correct rules for maintenance and management. Section Four of the 2004 Act deals with the application of the Tenement Management Scheme, which contains nine rules. It is important to remember that the Tenement Management Scheme procedures only apply if the information is not included in the title deeds.
It only applies to areas which fall within the definition of ‘scheming property’. Because scheme property is used or needed by everybody in the building, all the owners are responsible for maintaining it unless title deeds state otherwise. There are 3 types of ‘scheme property’: structural parts of the building such as the foundations; walls and roof and all parts of the building which are common e.g. the lift. It should be noted in cases of a life, only the owners on the first floor and above will need to arrange and pay for the work, also all parts which the title deeds say more than one owner is responsible.
Finally, if a tenement needs to access another property for repairs, the tenement management scheme gives the right for the tenement to access other owners’ property to complete repairs. Reasonable time must be given to other owner prior to repairs, to ensure access to the property. However an owner can refuse to let you in to complete repairs. Under section 5 of the 2004 Act provides that an ‘owner’ can make application to the sheriff for annulment of certain decisions.
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