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Dealing with common repairs

Written by: Edward Danks
05 August 2022

Perth and Kinross recently announced they had partnered with Novoville to provide an App to help house owners deal with common repairs. You can download the App from the Apple Appstore or from Google Play. However, whilst the App might make it easier to arrange, manage and pay for common repairs, getting to and agreement about having repairs carried out in the first place can be challenging.

How are common repairs normally dealt with?

The title for tenement buildings, conversions and a variety of other properties which have areas used in common should contain title conditions that deal with common repairs. The title should provide for maintenance, management, execution and payment for the costs of common repairs. However, not all titles for these types of properties have these provisions or, where they contain these title conditions, there are some omissions or defects.

Each owner’s title should have the same conditions regarding maintenance and repair of common property. However, if the titles are silent and there are no provisions relating to common property, the owners of the building must rely on the law of tenement. This means that the proprietors on the top floor are responsible for repair and maintenance of the roof and those on the ground floor are responsible for the foundations and support of the building.

Normally, a property factor or owners management association is appointed to deal with maintenance of and repair to common property. However, that is not always the case.

Up until 2004, there were often problems when dealing with common repairs if the owners responsibilities were either not properly set out in the titles or missing entirely. From 2004, the provisions of the Tenements (Scotland) Act 2004 looked to “plug the gaps”.

What is the Tenements (Scotland) Act 2004?

Despite its title, this Act applies to all properties in Scotland where there are common or shared areas of property that should be maintained by all the owners in the building.

The main thrust of this Act is to provide a scheme of maintenance of and repair to a building where there are shared or common areas.

The Act also seeks to ensure that when common repairs are needed, these can be assessed, instructed, carried out and paid for in a proper, organised manner. Importantly, the Act makes provision for repairs being carried out when the majority of the property owners in the building agree that the works should be carried out if the titles do not contain that provision.

How does the Act deal with repairs to common property?

The Act does not replace the title conditions. It complements them, taking effect where the title conditions are defective or non-existent.

Where the title is deficient or where there are no title conditions dealing with common repairs, a Tenement Management Scheme can be introduced. If a tenement management scheme is introduced, it will deal with some or all of the following:

  • What is considered “scheme property”
  • What the voting procedure is
  • The scope of the owners’ decision making
  • How costs will be shared or apportioned
  • How “maintenance” is defined
  • How a manager can be appointed
  • What should be done in an emergency

The Tenement Management Scheme operates alongside the title conditions, making provision where the title is silent on a particular point or condition.

If you are having a problem with repairs to common property and would like us to check your title or discuss how to put a Tenement Management Scheme into place, please contact us to speak to our property lawyers.

Written by:

Edward Danks

Partner
After graduating from the University of Dundee, Edward joined the firm in 1996. He lives in North Berwick with his wife and family. Outside office hours, Edward is likely to be found on one of the many local golf courses. He works hard at maintaining his handicap of three. Edward is also the Head Coach for the under 9 and under 11 teams with North Berwick Girls Football Club and in his spare time enjoys five-a-side football and tennis.

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