How common repairs are shared in a Scottish tenement

A roof needs work, or the close door has failed, and the question in every tenement is the same: who decides, and who pays? In Scotland the answer comes from two places, in a fixed order. This note explains both, and where a factor fits in.

Title deeds first

The starting point is always the title deeds. Many deeds say which parts of the building are shared, how decisions about them are made and how the cost is divided. Where they do, the deeds govern.

Where the deeds are silent: the Tenement Management Scheme

The Tenements (Scotland) Act 2004 fills the gaps. Its Schedule 1 sets out the Tenement Management Scheme, and section 4 of the Act says when each part of the scheme applies. In short, the scheme’s rules apply to the extent that the deeds make no provision of their own. Rule 2, on how decisions are made, applies unless a deed sets out a procedure that applies equally to every flat.

The scheme talks about “scheme property”. Rule 1.2 defines it as any part of the tenement that two or more owners own in common, any part whose maintenance the deeds make the shared responsibility of two or more owners, and, with some exceptions, key parts of the building itself: the ground, the foundations, the external walls, the roof and the load-bearing walls.

How decisions are made

Rule 3 lists what owners can decide together. It starts with carrying out maintenance to scheme property and arranging an inspection to see whether maintenance is needed. It also lets owners appoint someone, who may be an owner or a firm, to manage the tenement, unless a manager burden in the deeds already confers that power.

Rule 2 sets out the voting. One vote is allocated for each flat, and rule 2.5 says a scheme decision is made “by majority vote of all the votes allocated”. That is a majority of every flat in the building, not just of the owners who turn up or reply.

How the cost is shared

Rule 4 deals with who pays. For parts that owners own in common, costs are shared in the proportions in which they own that property. For the other scheme property, the default is that costs are shared equally among the flats, with one exception: where the largest flat is more than one and a half times the floor area of the smallest, those costs are shared in proportion to floor area.

The difference matters in practice. A building of near-identical flats splits a roof repair evenly. A building with a large main-door flat and small attic flats may split the same bill by floor area instead.

Emergencies

Some work cannot wait for a vote. Rule 7 lets any owner instruct or carry out emergency work, which it defines as work that needs to be done to scheme property before a scheme decision could be obtained, to prevent damage or in the interests of health or safety. The owners share the cost of emergency work as if it were a scheme cost.

The duty to maintain

Separately from the scheme, section 8 of the Act places a duty on the owner of any part of a tenement that provides support or shelter to another part. They must maintain it so that it continues to do so. The duty is qualified: an owner is not obliged to carry out maintenance where it would not be reasonable, having regard to all the circumstances, including the building’s age and condition and the likely cost.

Where a factor fits in

Many tenements appoint a factor to do this work on the owners’ behalf. A factor’s authority, the level of spending it can approve without consulting owners and how it consults when that level is passed are set out in its written statement of services, as the Property Factors Code of Conduct requires.

In practice that means a factor keeps track of each owner’s share, runs the consultation or vote when a decision is needed, instructs the work once it is agreed, and accounts to every owner for what was spent.

When owners disagree

The deeds and the scheme between them settle most questions, but not every disagreement. The scheme itself includes rules on procedural irregularities and on enforcing decisions, and section 5 of the Act lets an owner who opposed certain decisions apply to the sheriff to have them annulled. Where the disagreement is with a registered factor about its duties or the Code, an owner can notify the factor in writing and, if it is not resolved, apply to the First-tier Tribunal (Housing and Property Chamber).

This is general information about the default rules. The deeds for a particular building can change every answer above, so they are always the first thing to read.