2 Rights and responsibilities of tenement flat owners
While you are solely responsible for the upkeep of your own flat or house, parts of the tenement building or estate are normally the joint responsibility of all the owners whose title deeds say they have a right of common property. In a tenement this will typically include parts such as the common stairs or lifts. In an estate, access roads are typically common property.
As well as your responsibilities for maintenance, the law says you must not:
- do anything that would interfere with any part of the building that provides support or shelter. This would include knocking down internal walls without replacing the structural support, or knocking holes in walls for boiler ventilation and not making the hole properly weather proof; or
- do anything that would interfere with the natural light in any part of the building.
If you own a tenement flat, you are also responsible for maintaining those parts in which you have a ‘common interest’. These include the parts that provide support and shelter for the building as a whole, such as the external walls and normally the roof. Your fellow owners can enforce this responsibility.
You will find details of your rights and responsibilities in:
- your title deeds; or
- the Tenement Management Scheme (if your title deeds have gaps or defects).
2.1 Title deeds
Your title deeds normally tell you about your rights and responsibilities for your own flat and your shared responsibilities for the tenement. Your title deeds may:
- tell you about your responsibilities for the management and maintenance of the common parts;
- tell you how decisions about them should be taken;
- tell you how costs are to be allocated between owners;
- specify arrangements for paying for maintenance work and services.
The conditions in your title deeds are obligations – known as real burdens – that go with the ownership of your flat. When you bought your flat, you accepted the conditions, and they will remain with the flat when you sell it. They are put in the title deeds to control the use of the flats in the tenement, for example by banning business use, or to ensure that the owners maintain or contribute to the maintenance of the common parts.
Your title deeds will be registered with the Land Register of Scotland or the Register of Sasines or sometimes both.
If you don’t have a copy of your deeds, you can get one from:
- the Registers of Scotland (which maintains the Register of Sasines and the Land Register of Scotland);
- the solicitor who did the conveyancing when you bought your flat, if you don’t have a mortgage; or
- your mortgage lender.
Your solicitor or lender may charge a fee for a copy of your title deeds. If you are buying a property, you should always ask for a copy of your title deeds.
2.1.1 How can I change conditions in my title deeds?
You and your fellow owners may want to change the burdens in your title deeds, for example if they are no longer necessary or you feel they are unfair.
The process for changing your deeds depends on how many of the owners in a tenement agree to the change:
- If all of you agree, then it is straightforward. A solicitor will be able to draw up the required deed and the Lands Tribunal for Scotland will certify the change.
- If the majority of you agree that you want a condition in your title deeds changed, again the deed is drawn up and sent to the Tribunal. Those against the change can send a formal objection to the Tribunal if they wish. The Tribunal will consider the change and make a decision.
- If at least 25% of the owners wish to make a change, they can apply to the Tribunal for a decision.
If you wish to make changes to your title deeds, you will need to use a solicitor to do so. Fellow owners must be given the chance to object. Any changes to your title deeds, and the title deeds of any of your fellow owners who are affected by the change, must be registered in the Land Register of Scotland or the Register of Sasines. You will be charged fees by the solicitor for preparing the changes and by the Registers of Scotland for registering them. A solicitor, the Registers of Scotland or a local advice centre can give you information and advice.
If you get notice that someone is planning to get the title deeds changed and you don’t like what is planned, act immediately. Consult a solicitor. You only have a few weeks to act.
2.2 The Tenement Management Scheme
The Tenement Management Scheme is a scheme that can be used where your title deeds have gaps or defects. For example, your title deeds may not say how decisions should be taken, or may not describe all the common parts, or they may allocate shares of costs that do not add up to 100%. You and your fellow owners can use the different sections of the scheme to make up for gaps or defects, but otherwise you must follow your title deeds.
The Tenement Management Scheme:
- defines maintenance;
- defines scheme property (the parts that everyone is required to maintain);
- tells you how you should make decisions about maintenance (called scheme decisions); and
- tells you how costs are shared.
This section tells you about each of these elements of the Tenement Management Scheme.
2.2.1 What is meant by ‘maintenance’?
Many of the legal rights and responsibilities of tenement flat owners apply only when ‘maintenance’ is being carried out.
- repairs and replacement;
- painting and other routine works;
- the day-to-day running of the tenement;
- the reinstatement of part (but not most) of the tenement building.
Maintenance does not mean alteration, demolition or improvement, unless the improvement is part of the maintenance work. For example, if you need to replace the main door, choosing one with a more suitable specification or adding a better modern lock is likely to be counted as maintenance, rather than improvement. Maintenance in tenements does not cover redecorating privately owned areas, unless damage caused while repairing common parts makes redecoration necessary.
2.2.2 Scheme property
The principle of ‘scheme property’ is that some parts of the tenement, such as the main structural parts, are so vital that their maintenance should be the responsibility of all owners who have common property rights in those parts.
Scheme property includes:
- any part of the tenement that your title deeds say is the common property of two or more owners, for example the close or stair;
- 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. Some title deeds will identify which parts are the property of only those who have use of them, for example drainpipes serving flats on one side of the building;
- the ground on which your tenement is built (but not the back court or front garden);
- the foundations;
- the external walls;
- the roof, including the rafters and any structure supporting the roof;
- the part of a gable wall that is part of the tenement building;
- any wall, beam or column that is load-bearing.
The following are not scheme property but are the property of individual owners:
- parts such as doors and windows, skylights, vents or other openings that serve only one flat;
- any chimney stack or flue that serves only one flat; and
- any extension that serves only one flat.
2.2.3 Taking scheme decisions
The Tenement Management Scheme outlines how owners should take ‘scheme decisions’ about having maintenance carried out. Like other parts of the Tenement Management Scheme, the requirements only apply if there are gaps or defects in your title deeds.
You and your fellow owners must take proper scheme decisions on the following:
- carrying out maintenance to scheme property;
- having maintenance inspections carried out on scheme property;
- appointing or dismissing a property factor;
- authorising a property factor to carry out inspections and arrange maintenance;
- arranging a common insurance policy;
- deciding that an owner does not have to pay any or all of his or her share of a scheme cost;
- authorising emergency work or any maintenance of scheme property where that work has already been carried out by one owner;
- installing or replacing a door-entry system controlled from each flat; and
- changing or cancelling any previous decision.
If the Tenement Management Scheme applies, scheme decisions on maintenance can be taken by a simple majority of owners. However, you can only vote on decisions about maintenance if you are responsible for paying towards the maintenance of that part of the tenement (for example, you would not get a vote on a decision about a downpipe that did not serve your flat). Decisions about improvements, for example installing a communal satellite dish, must be unanimous unless your title deeds set out other voting terms for them.
All owners entitled to vote on a scheme decision must get at least 48 hours’ notice in writing of a meeting. Notices can be posted, faxed or emailed to the owner or their agent. If an owner is not contactable or not known, then you (or your solicitor or agent) can post the notice through the door of the flat, addressed to ‘The Owner’. Notice starts from the day of posting or sending.
If a meeting can’t be held you must still consult all the other owners entitled to vote on the matter, perhaps by calling round the doors and keeping a record of the decisions. You are only required to consult those who can practically be contacted (see 3.2 for advice on how to find absent owners or landlords).
The key points about making scheme decisions are:
- a properly made decision is binding on all owners (even if they did not agree);
- each flat carries entitlement to one vote regardless of whether the flat has more than one owner (for example a couple with a joint mortgage only get one vote);
- an owner can appoint someone else to make decisions on their behalf.
It is important to follow the correct procedures because:
i. an owner can appeal against the actions of fellow owners or refuse to pay because of a procedural irregularity (see 6.1 for more information);
ii. owners will need to show that they have followed correct procedures if they wish to apply to their local council to pay any missing shares (see 6.3 for more information).
2.2.4 Sharing the costs of repairs and maintenance
Owners become responsible for costs from the point when the scheme decision is made or emergency work commissioned (see 2.3 for more information on emergency work). Your title deeds usually tell you how costs are to be shared between owners, but if there are gaps or defects you should use the Tenement Management Scheme.
Under the Tenement Management Scheme, all owners share equally in the costs of maintenance and repair, inspections, installing door-entry systems and running costs such as management fees or for lift maintenance.
However, there are two exceptions:
i. where the work involves maintenance of a part that does not serve the whole tenement. In this case only the responsible owners are liable for the costs and they pay equal shares of these costs; and
ii. where the floor area of the largest flat is more than one-and-a-half times that of the smallest flat. In this case, liability for repair costs (but not inspections and running costs) for scheme property is in proportion to the floor area of each flat.
2.3 Emergency work
Owners also have powers to deal with emergencies.
Emergency work is:
- work that would prevent damage to any part of the tenement; or
- work required in the interests of health and safety that cannot wait for a scheme decision to be taken.
There is no legal definition of an emergency. Few repairs are likely to be this urgent, however, and you should follow proper procedures for taking scheme decisions and commissioning repairs if possible. Otherwise, in any dispute over such work, you and your fellow owners must be able to justify what you have done, or you may appear to have acted without following the proper procedures and may find it difficult to recover costs. If you cannot prove it was an emergency, you may find yourselves paying for the cost of the work.
If you think the work required might be emergency work, you can contact the council for information and advice.
If the work is indeed an emergency, you or any other owner can instruct work without a scheme decision. You will all be liable for the costs in the same way that you are liable for maintenance costs (see 2.2).