Common Repairs Policy - Appendix 1

Appendix 1

The Tenement (Scotland) Act 2004 provides rules for the ownership of various parts of a tenement and a system for management of tenements to cover the situation where the title deeds do not make provision in relation to these matters.

Definition of a Tenement

The definition of what constitutes a tenement in the Tenement (Scotland) Act 2004 is a broad one. Under Section 26 a tenement is defined as a building, or part of a building, comprising two or more related flats which are owned or are designed to be owned separately and which are divided from each other horizontally (i.e. one is on top of the other). Under Section 29 a flat includes premises, whether or not they are used, or intended to be used, for residential purposes. The effect of these provisions is that a wide variety of residential property, including large houses which have been converted into flats, high rise blocks, modern blocks of flats, as well as the traditional sandstone or granite buildings of three or four storeys, will qualify as a ‘tenement’. Furthermore, mixed use property, where there are shops on the ground floor with flats on the upper floors, as well as purely commercial property (eg office blocks) will qualify as a ‘tenement’.

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The Tenement Management Scheme

The Tenement Management Scheme provides for the management and maintenance of ‘scheme property’ of a tenement. The principles of ‘scheme property’ is that some parts of the tenement are so vital that their maintenance should be the responsibility of all of the owners who have common property and rights in those parts.

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Scheme Property

This includes:

  • any part of the tenement that is the common property of two or more owners, for example, the close or stair; and
  • any other parts of the tenement that your title deeds say must be maintained by two or more owners, for example, the gutters and downpipes.

The following are included in Scheme Property:

  • the ground on which the property is built;
  • the property foundations;
  • the external walls ;
  • the roof including any rafters or any structure supporting the roof;
  • any wall or load bearing column; and
  • the part of a gable wall that is part of a tenement building.

The following are NOT included in Scheme Property:

  • any extensions that form part of only one flat;
  • any door, window, skylight, vent or other opening that serves only one flat;
  • any chimney stack or chimney flue that serves only one flat.

If a part of the tenement is the common property of two or more, but not all, of the owners in a tenement, then only those owners with common property rights in those parts are responsible for the maintenance of that part of the property.

Maintenance of scheme property includes:

  • repairs and replacements;
  • cleaning;
  • painting and other routine works;
  • gardening;
  • the day-to-day running of the tenement;
  • the reinstatement of part of the tenement building.

Maintenance does not include alteration, demolition or improvement, unless the improvement is part of maintenance work. For example, the main door needs replaced, adding an improved modern lock is likely to be counted as maintenance, rather than improvement, although this will depend on the extent of the work and the cost involved.

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Decision Making Regarding the Scheme Property

If owners decide that something requires to be done with regard to Scheme Property, the Tenement Management Scheme provides a mechanism for holding meetings and deciding whether anything requires to be done to Scheme Property. Decisions regarding Scheme Property are known as ‘Scheme Decisions’.

If an owner requests a Scheme Decision, the owner must provide other owners with at least 48 hours notice of the date, time, purpose and location of meeting. If a meeting is not held, the owner must consult with all owners and take account of the majority votes.

Owners or their agents will be consulted in writing either by mail which can be hand delivered or electronically delivered and contact will be addressed to the owner or proprietor of the property.

The requirements for voting, consultation and notification only apply if title deeds do not make provisions for taking decisions, or if these are inconsistent between the title deeds of different owners.

Scheme decisions are binding and any obligation arising from the scheme or as a result of a scheme decision can be enforced either through the courts, by any owner, or anyone authorised by an owner.

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Matters On Which Scheme Decisions May Be Made

Unless title deeds state otherwise, owners can make basic scheme decisions to:

  • carry out maintenance to Scheme Property;
  • arrange an inspection of Scheme Property in order to decide whether and how much maintenance is required;
  • appoint a manager or organisation to manage the tenement;
  • dismiss the appointed manager or organisation;
  • delegate a manager to instruct works to a specified amount ;
  • arrange a tenement common policy of insurance;
  • exclude any owner not included in the scheme costs;
  • authorise works already carried out by an owner;
  • modify or revoke any scheme decision;
  • install a door-entry system controlled from each flat, even if it is not to replace an existing system; and
  • cancel or change any previous decision.

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Voting

Each flat has one vote and that can be used by the owner or someone appointed by the owner. However, owners do not have a vote on decisions about maintenance if they are not liable for the costs of maintenance to that part of the tenement.

If they share ownership of a flat with one or more people, then any one of the owners can use the vote. If there is a disagreement on how to vote, no vote is accepted unless one of the owners own more than half of the flat, in which case he or she can use the vote, or the vote is agreed among those who own more than half the flat.

Unless title deeds set out procedures for making decisions, a scheme decision is decided by a majority vote.

Owners can make decisions about improvements, for example installing a communal satellite dish, but agreement must be unanimous, unless title deeds specify voting procedures for these.

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Scheme Decisions Relating To Maintenance

If the owners of the scheme decide to carry out maintenance, the owners can make decisions on any of the following:

  • instruct or arrange for the maintenance; and
  • require each owner to deposit an estimated share of costs.

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Emergency Works

Emergency work is that required in the interests of health and safety that cannot wait for a scheme decision to be taken. Few repairs are likely to be this urgent and the provisions for emergency work must not be used simply because there is a disagreement between neighbours on the need for the work. There is no legal definition of what constitutes an emergency. In the event of a dispute about emergency work, owners must be able to justify it and prove that the action taken was reasonable. In an emergency, work can be instructed without a scheme decision.

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Maintenance Account

Contractors may not be willing to start work unless finances are already in place. Therefore, owners can decide that each owner who is liable for a share of the cost should deposit his or her share of the estimated cost with someone nominated for this purpose, which could be an owner, property manager or agent, not less than 28 days after the decision was made.

If the owners decide to authorise persons to operate a maintenance account on their behalf, a description of the works required and the following information will be expected:

  • an estimated cost of maintenance;
  • consideration of any comparison of estimates;
  • the apportionment of shares;
  • the names and date of works approved;
  • the proposed and completion dates; and
  • names & addresses of 2 persons authorised to operate financial affairs, normally via a bank or building society.

An owner is entitled to inspect any tender in connection with the proposed maintenance work.

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Provision For Refund

If the maintenance is not carried out by a set date or 28 days after the proposed date, an owner who has deposited their share can request a refund with interest from the maintenance account. If the maintenance is carried out before the appointed person or agent has received the notice, then no refund will be allowed. Any actual spent costs will be deducted, if a refund is awarded.

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Scheme Costs - Liability and Apportionment

The liability of costs are generally apportioned among owners equally, unless an individual flat is one and half times larger than the smallest flat, then consideration should taken of the total floor areas and apportioned accordingly.

Owners are liable for the following costs incurred as a result of a scheme decision from the date of the decision (unless title deeds say otherwise):

  • maintenance or inspection for maintenance;
  • payments to a manager or factor to carry out inspections and maintenance;
  • the running costs of scheme property that benefit more than one flat;
  • costs that the local authority can reclaim for work carried out by it, for example, after serving a repairs notice and then carrying out the work itself;
  • management fees and costs;
  • common insurance premiums;
  • the costs of calculating the floor area of any flat, where this is necessary to decide how costs should be shared;
  • the costs of installing a door-entry system that can be controlled from each flat;
  • any other costs relating to the management of scheme property.

If there is no specific provision within the title deeds then the scheme costs will be divided equally between the owners of the tenement. Any new owners will be expected to contribute to the scheme maintenance.

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