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by Norman Geddes

New laws regarding flats and tenements

A new law comes into force on 28 November which sets out the rights and obligations of all people living in flats and tenements in Scotland.

The Tenements (Scotland) Act will end stalemates between neighbours over repairs, because basic work will now be able to go ahead with the consent of the majority rather than a unanimous vote.

In the Act, a tenement means not only traditional tenement flats, but also modern flat developments, tower blocks and villas which have been converted into flats, and applies to commercial as well as residential properties.

A key aspect of the Act is to give people in flats the power to maintain their properties without being vetoed by neighbours.

Under the existing system, the conditions of maintenance of tenements are usually set out in the title deeds of the property or, where this is not the case, a default common law - meaning unanimity is required for any repair or maintenance work on shared parts of the property.

The new legislation will replace old-fashioned common law with modern rules which allow repairs to go ahead on a majority vote, and clarify who owns which part of a tenement if the title deeds do not already make that clear.

The Act has two main objectives. The first is to clarify and re-state the common law rules which make clear who actually owns various parts of a tenement. This will remove a number of uncertainties and anomalies in the existing law.

The second objective is to provide a statutory system of management for tenements. The overall effect will be that every tenement will have a management scheme, and hence a mechanism for ensuring that repairs are carried out, and that decisions are reached on other matters of mutual interest and concern. The reform is intended to facilitate repair work, and it is hoped that it will lead to many outstanding necessary repairs being carried out.

Tenements have existed in Scotland since medieval times, and they now form over a quarter of the housing stock. Most tenement property is residential (though even in those cases there are very commonly shops on the ground floor), but the definition in the Act includes commercial properties such as office blocks. Large houses which have been converted into flats, high rise blocks, "four in a block" and modern blocks of flats will also qualify as tenements, as well as the traditional sandstone or granite buildings of three or four storeys.

Many tenements in Scotland (and particularly the more modern ones) already have adequate, workable management schemes which allow for the proper maintenance and management of the building. These will be entirely unaffected by the new Act.

But some title deeds do not make adequate provision for the management and maintenance of the tenement. For example, it is relatively common for deeds to oblige all owners to contribute to the cost of a common repair, but for there to be no provision in the deeds as to how the owners are to decide to carry out a common repair. In such a case, the common law would apply and this requires that all of the owners must agree before the repair can be carried out. If all the owners agree, then they would all have to pay whatever share was allocated to their flat in the property deeds. The common law is therefore a default law which applies only where there is a gap in the title deeds.

The Act provides that, if the title deeds make provision as to who owns a part of an existing tenement or who pays for its maintenance or how a decision is to be reached by the owners, that will remain the case. In the future, developers who are drawing up new title deeds will be able to vary from the new law. The new law will be a default law - it will only take effect if the title deeds do not make other arrangements, or if they are defective.

In blocks where there is no provision in the titles for ownership or maintenance of the roof, the position up until now has been that the owner of the top flat would have to pay for a repair. In future all the owners would have to contribute equally.

Because certain parts of a tenement are so fundamental to the soundness of the building, the principle of common interest (not to be confused with common property) requires owners to maintain any part of the tenement in their ownership which is needed for the shelter or support of the building as a whole. An owner also has a corresponding right of common interest in those parts of the building which are not his. It is the principle of common interest which obliges the owner of the top flat to maintain the roof to provide shelter for the rest of the building.

The Act provides that there will be compulsory insurance for all flats within a tenement. Tenement owners are in a situation where they are particularly vulnerable to the physical condition of neighbouring flats. Essentially, a tenement owner is not adequately insured unless his neighbours are also insured. Many tenement flats will, of course, already be insured whether as a requirement of a mortgage or otherwise. But some flats will not be insured, and certain properties, although insured, may not be adequately covered. The Act stipulates that the duty of an individual owner to insure his or her own property should be for the reinstatement value and not the market value. This will be an absolute requirement, irrespective of any provision in the title deeds or in a management scheme. Reinstatement value can far exceed market value, and consequently there would be no chance of re-building the tenement if damage occurred and the insurance was based on market value. The Act gives individual owners the right to inspect the policies of their co-owners and to see evidence that the premiums have been paid.

In conclusion, as a result of the difficulties and uncertainties caused by the old system, many old tenement properties throughout Scotland have fallen into a state of disrepair. It is to be hoped that with the new legislation there will be an opportunity for general improvement in the condition of our national stock of flatted property.

If you are in any doubt about how the Act might affect you, consult a solicitor.

Norman Geddes is senior director of Ayr-based solicitors Frazer Coogans.

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