Common Repairs and The Tenements (Scotland) Act 2004
By PHILIP KNIGHT
Anyone reading the press at the moment will no doubt be aware of the concerns regarding the statutory notice system previously operated by the City of Edinburgh Council. Serious concerns have been raised about the transparency of the system and the potential for abuse. Residents receive an initial costing from a third party surveyor appointed to manage the works on behalf of the Council. Unfortunately, these initial costings often spiral out of control with very little communication to the owners.
There is also a concern that the works extend beyond the statutory powers and extend to improvements and non-essential repairs. Many residents feel they have absolutely no control over the works which they are paying for and are hit with a final account worth tens of thousands of pounds more than estimated payable within short order.
However, it isn’t all doom and gloom as there might be some good to come out of this matter as it has highlighted the importance of property maintenance. Just like humans, properties grow old and need regular maintenance and repair! Many people are quick to decorate the interior of their house but fail to have any regard to the external fabric of their building which needs regular maintenance.
Where to Start
Many property owners are unsure of how to begin the daunting process of carrying out works and have difficulty in obtaining the co-operation of the other owner. Before considering a repair, it is necessary to consult the title deeds for the property which outline the rights and responsibilities of the management and maintenance of the common parts.
The Tenement Management Scheme (“TMS”) is part of the Tenements (Scotland) Act 2004. The TMS sets out procedures flat owners need to follow when making ‘scheme decisions’ about maintaining and repairing common parts when the title deeds don’t specify how decisions should be made, or if different owners’ title deeds say conflicting things. You should always take advice when considering if the TMS applies.
Scheme property includes the foundations, the external walls, any mutual gables and mutual walls and the roof (including the rafters and structure supporting the roof).
Under the TMS owners can carry out maintenance work, including repairs and replacements, cleaning, painting, gardening and other day-to-day tasks and in addition the owners can appoint a property manager to run the building.
Decisions under the TMS are made by majority vote (in excess of 50% of the owners). Each owner is entitled to one vote (irrespective of the number of occupants). To call a meeting, you must give each owner at least 48 hours’ notice of any planned meeting in writing. If time allows give 7 – 14 days to ensure everyone has been informed. Notices can be sent by post, fax or email. If you don’t have the contact details for your neighbour, put a notice through the letterbox addressed to the owner.
You should intimate the outcome of the meeting to all owners as soon as possible. Any decisions you make are binding, and can be enforced through the courts. If not all the owners vote, you must wait 28 days before carrying out any work to enable an owner to appeal the decision to the Sheriff Court.
Aside from considering the title deeds when considering carrying out any work, you should consider appointing an agent to provide technical expertise and to handle the often daunting experience of managing contractors.
Philip Knight is senior solicitor specialising in real estate litigation at national law firm DWF LLP.
To learn more about what GLM Shared Repairs can do to help you maintain your tenement, please visit our website, send us an email or call us at 0131 478 3552.