Tenement dwellings - provision of Building Reserve Funds: report

A report commissioned to allow the Scottish Government to make a determination on the required level(s) of monetary commitment from tenants/landlords in relation to Building Reserve Funds (BRF).

5. Understanding of Tenement Repair and Maintenance

Reasons some tenements have no provision or security in place to ensure the safety of buildings and regular maintenance (2)

Survey results evidenced how the Scottish public feel about maintenance and repair:

  • 53% of respondents wish more was done to maintain the building.
  • 30% of respondents experience problems due to the state of the building including damp, rot, leaking roofs or around windows.

Professional and public research participants gave many reasons why owners of tenements do not make provisions of this nature. These can be categorised within individual, community and society.

a) Individuals- ignorance and lack of knowledge-

‘With the growing 'buy to let' a lot of people didn't really realise what it meant to be a homeowner’ (owner occupier, Edinburgh)

‘In my experience there are a lot of accidental landlords, and just fallen into this, maybe inherited a property and just don’t know what’s required of them, what they need to do’. (Local Authority)

‘we do spend a lot of time talking to people who blindly buy properties and don’t think of the consequences of common repairs…we quite often have people who just buy at option and they haven’t even viewed it, and then they come to us and say ‘I’ve got that issue, and this issue’.’ (Local Authority)

’You get lost in excitement of buying a house. You've got the flat you want but the last thing you want to think about is repair. You likely won't think about it again until something happens. There is no culture of regular maintenance.’ (Surveyor)

b) Individuals- lack of care-

‘The closer you are the property the more engagement you will have within that building. Owner occupiers are more engaged than private landlords. As soon as you have one or two people who are less engaged in a building you will have a battle on your hands to get stuff done.’ (Factor)

c) Individuals- change in ownership-

‘We also have to bear in mind that the modern homeowner is far more mobile than its predecessor of say +20 years ago and this transient demography has had a detrimental impact on the long term prospects for our buildings.’ (Representative of landlords)

d) Individual- affordability-

‘so many people have bought properties and they have completely cleaned themselves out and any repair is a crisis. And that can happen to all of us in our lives’ (Local Authority)

‘people are more concerned about building conditions over the winter, when they visibly experience leaks and drafts. However, this can come at a time when they have less spare cash to address repairs’ (Surveyor)

e) Individual- cost benefit analysis-

‘Fear that they're not going to see the benefit for it – this feeds into the misunderstanding of paying into the pot and not being able to get the money back if you sell your property. There’s a fear that you won’t be there when repairs are carried out.’ (Surveyor)

f) Community- communication-

‘a lot of people don’t get on. They don’t speak to their neighbours. And they come to us because things have broken down and they can’t communicate, let alone make a collective decision. Bad history can prevent you from making sensible decisions on behalf of their property.’ (Local Authority)

g) Community- coordination-

’Getting three competing quotes and circulating them around nine proprietors is an enormous task, especially when they are not cooperating and not talking to you. In theory the bills should be less with a bigger block but harder to get agreement between everyone and can cause problems.’ (owner occupier, Edinburgh)

’Someone snapped their key in the front door and left it, didn't accept responsibility. Only 5 out of the 8 flats actually agreed to do something about it and it was only a £15 repair.’ (owner occupier, Aberdeen)

h) Society- attitudes-

‘Culture would sum up quite a lot of that actually. It's the 'make do' mindset, we can 'make do' with a leaky gutter’ (Public Body)

Extant research showed there are plenty of tenement owners who do understand the importance of repair and maintenance and are indeed concerned. One owner responding to the Tenement Working Group’s consultation stated:

‘Reports of the chronic disrepair of tenements can too often seem condescending to owners, as though we are all too uninformed, short-sighted, or, possibly, stupid to understand and act on our responsibility for maintaining our property. Sometimes we are just defeated by the practical difficulties.’

In fact, a professional network responding earlier to the Tenement Working Group’s consultation summed up these barriers and placed them in historical context:

‘There is an observation, noted in Roman Law: ‘Communio est mater rixarum’, meaning “co-ownership is the mother of disputes”. This reflects not only the age of the problem that we seek to address, but also the critical importance of a long-standing tension within the Scottish property law in respect of co-ownership, between the rights of the individual and any entity formed by these owners collectively’.

Another consideration for repair was the role of building insurance.[31] This topic was raised by tenement owners and professionals:

‘Within 2 years we had to report subsidence. To cut a long story short, we were caught in a quagmire of 2 of the 9 owners not being insured, various insurance companies disagreeing …Most frustrating in my experience was the fact that 2 owners had no building insurance cover’ (landlord)

‘It was always a disappointment to many in the property Factoring industry that the original TSA did not go far enough in terms of common insurance, by making common buildings insurance mandatory for tenements and common blocks. Allowing homeowners to arrange their own insurance policies for part of a tenement, where there was no express provision for a common policy, was a flawed concept which was always going to be a recipe for future problems’. (factor)

Through our primary research, suggestions to help individual, collective and overall society barriers to maintenance and repair included:

  • More efforts to ensure knowledge and transparency at point of purchase.
  • Mandated insurance arrangements, including for common areas.
  • Acknowledgement that this issue is partially caused by dynamics between people, or the lack of them.
  • Recognition that ownership fluctuates within the one building and changes over time- level of awareness or pro-activeness of owners is not static.
  • Ways to support groups of people to join together for mutual interest.
  • Not generalising, as there are many interconnecting, and fluctuating reasons for this situation at a local and property level.
  • Engendering a culture change in how we consider communal property.

Whether those who own properties in tenements understand what their legal responsibilities are in terms of building fabric (4)

From the survey:

  • 68% say they understand their rights and responsibilities as an owner.
  • 56% respondents agree with “I am familiar with the detail of my title deeds”.
  • 41% of respondents are familiar with Duty to Maintain.

The overall response to this research question elicited through interviews and discussion groups was that owners did not fully understand their legal responsibilities. However, this was not necessarily seen as the fault of owners.

Glasgow Factoring Commission has already explained the lack of:

‘a single comprehensive guide, written in plain English, which explains the relationship between the different acts relating to property maintenance…The legal framework associated with factoring and common property maintenance is complex and difficult for the lay person to comprehend.’[32]

Extant research found, ‘home owners’ capacity to engage with, or avoid regular property maintenance and common repair works are legally determined by the title deeds which pertain to their property. These legal documents, which define the rights and responsibilities which fall from the ownership of a particular property, are of markedly variable quality.’[33]

It was further emphasised in stakeholder interviews that:

  • Deeds can be archaic and variable.
  • Legal terminology is not in Plain English.
  • Legal responsibilities are at an individual level- but legal cases are rare.

Indeed, the Tenement Working Group explained: ‘changes to the titles could cost each owner around £500, perhaps more if lenders’ consent is required. A new legislative scheme which requires no changes to titles will save owners paying such costs.’

One Local Authority explained:

‘In our experience, most owners who get in touch are looking for clarity on liability and who is responsible for what and how to work out who pays what. Some owners are already very aware of the burdens within their title deeds and understand these however the title deeds are often not clear or workable, so this leads to confusion.’

They continued to explain that even when there is an understanding of legal responsibilities, this does not mean that the legal routes will be pursued:

‘if people are getting nowhere with getting a majority decision they could go to a solicitor and lodge a notice of potential liability. But it’s an expense and it’s not really an attractive option’.

In summary, any changes to legislation should:

  • Aim to rationalise the arrangements in title deeds,
  • Be explained in plain English to current owners and to potential new owners at the point of sale,
  • Expect that legal enforcement through cases brought by individuals to individuals would be rare.

6. Existing Arrangements for Repair and Maintenance


Email: housing.legislation@gov.scot

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