t Tenements (Scotland)
Scottish Royal Arms Explanatory Notes to Tenements (Scotland)

2004 Chapter 11

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These notes refer to the Tenements (Scotland) Act 2004 (asp 11) which received Royal Assent on 22nd October 2004

TENEMENTS (SCOTLAND) ACT 2004

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The Act forms the third and final part of the Executive's current programme of property law reform and follows on from the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5) and the Title Conditions (Scotland) Act 2003 (asp 9). Both these Acts, other than Part 6 of the Title Conditions (Scotland) Act 2003, have been fully in force since 28 November 2004. The Tenements (Scotland) Act 2004, with the exception of section 18, has also been in force since 28 November 2004.

4.     Tenements form over a quarter of the housing stock in Scotland and come in all shapes and sizes. Most tenements are residential blocks, but office blocks also fall within the definition. So do large houses which have been divided into flats. This captures a much wider range of properties than is commonly imagined.

5.     Common law rules governing the maintenance and management of tenements have developed since the 17th Century, but these are not comprehensive nor without anomaly. The development of the law on real burdens, however, has helped to impose obligations on successive owners to adhere to a detailed regime for management and repair of a tenement. These burdens are drawn up to suit the particular circumstances of the tenement.

6.     But not all title deeds are comprehensive and they do not always provide burdens to specify how the owners are to decide on matters of mutual interest. If title deeds make no provision on one matter, the common law will apply on that one matter. The common law acts as a background or default law and most tenements, particularly new tenements, will have a detailed system of management provided by the title deeds to the property. The common law will only apply where there is a gap in the title deeds.

THE ACT

7.     The Act will largely implement the recommendations of the Scottish Law Commission Report on the Law of the Tenement (Scot Law No 162), published on 29 March 1998. The Act is intended to produce greater clarity in the law on tenements. The existing common law rules which demarcate ownership within a tenement are restated. The common law doctrine of common interest is codified by a restatement of the law. There is provision for a statutory right of access and for compulsory insurance.

8.     The Act introduces a statutory management scheme called the Tenement Management Scheme which will act as a default management scheme for all tenements in Scotland (this is set out in schedule 1 to the Act). It will provide a structure for the maintenance and management of tenements if this is not provided for in the title deeds. Where the title deeds are silent on matters of decision making the Scheme will allow the owners in a tenement to make decisions by majority vote. The Tenement Management Scheme also introduces the new concept of scheme property. This comprises the main parts of a tenement that are so fundamental to the building as a whole that they should be managed and maintained in accordance with the management scheme of the tenement. This will not, however, affect the ownership of the different parts of the building which remains unchanged. The Tenement Management Scheme also contains default provisions on emergency repairs and the apportionment of costs.

COMMENTARY ON SECTIONS

BOUNDARIES AND PERTINENTS

Section 1 - Determination of Boundaries and Pertinents

9.     Section 1 provides that where neither the title nor other legislation sets out the boundaries of a flat or another sector of a tenement or which parts of a tenement are pertinents of a sector then sections 2 and 3 will apply to determine the boundaries and pertinents of a sector of a tenement. These provisions will apply to all tenements, whether existing or new. The other legislation that will most commonly apply for these purposes is the Prescription and Limitation (Scotland) Act 1973.

10.      "Tenement" is defined in section 26 and "flat" and "sector" are defined in section 29. A sector can be a flat or some other separate part of a tenement such as the close or the roofspace. The use of the term "sector" is a convenient way of describing the different areas which go to make up a tenement building.

11.     Subsection (2) explains that the "title to the tenement" means any conveyance or reservation of property, or any title sheet comprised in the Land Register of Scotland which affects the tenement or any sector of the tenement. Paragraph (b) is included because under section 3 of the Land Registration (Scotland) Act 1979, title to registered property is vested by registration and not by the conveyance or other deeds that gave rise to the registration.

Section 2 - Tenement Boundaries

12.     Section 2 is concerned with the boundary features in tenement buildings and restates the common law rules of ownership of parts within a tenement. These rules will apply only where the title deeds to the property or any other enactment do not make different provision.

13.     Subsection (1) describes the boundary between sectors as the middle of the structure which separates them. If a sector is not adjacent to another sector, it extends to and includes the solum or any structure which is the outer surface of the tenement building; or it extends to the boundary that separates the tenement from another building. "Solum" is defined in section 29 as the ground on which a building is erected.

14.     Subsection (2) states that a structure which wholly or mainly serves one sector will be considered as belonging to that sector only. This means that, for example, the front door of a flat leading to the close is part of the flat and not of the close.

15.     Subsections (3) and (4) restate the special rules of the common law in relation to the top and bottom flats in a tenement. The boundary of a top flat extends to include the roof over that flat (subsection (3)) while subsection (4) provides that the boundary of the bottom flat extends to and includes the solum under that flat. Subsection (5) sets out that the boundary of a close extends to and includes the roof over, and the solum under, the close. The "close" includes, under section 29, the passage, stairs and landings in a tenement where they provide common access to two or more flats.

16.     Subsection (6) restates the common law rule that ownership of the airspace above the building goes with ownership of the solum. If a sector of the tenement includes the solum of the building, or a part of it, then that sector will also have within its boundaries the airspace above the building and that directly over the solum (or the part of the solum that is included in the sector). Where, under the titles, the solum is the common property of all of the owners in the tenement, the airspace is likewise common property.

17.     Subsection (6) is qualified by subsection (7). If the roof of the building slopes, ownership of the triangle of airspace lying between the surface of a sloping roof and an imaginary horizontal plane passing through the highest point of the roof, goes with the ownership of the roof and not with the ownership of the solum. This is important where the top floor flat wishes to build a dormer window into the airspace. Where the title deeds provide that the roof is common property, then the triangle of airspace is also common property.

Section 3 - Pertinents

18.     Section 3 deals with the pertinents to tenement buildings. These are the parts of the tenement building which are not within the boundaries of individual flats. The ownership of these parts of the building requires to be apportioned among the various flats. The rules in section 3 will only apply where provision for ownership is not made in the title deeds or in any other enactment.

19.     Under subsections (1) and (2) the owners of all the flats which obtain access by way of a close or a lift (where the lift allows access to more than one flat) will have a right of common property in the close and lift. Both "close" and "lift" are defined in section 29(1). Subsection (5) explains that the rights of common property are held in equal shares.

20.     Subsection (3) provides for the ownership of land adjoining the tenement building. It sets out that any land pertaining to a tenement building will be owned by the flat or flats nearest to that land or piece of land. This rule does not apply to a path, outside stair or other piece of land that acts as a means of access.

21.     Subsection (4) deals with any other part of the tenement which is not provided for in subsections (1) to (3). Examples given are a path, outside stair, fire escape, rhone, pipe, flue, conduit, cable, tank or chimney stack.

22.     Ownership of these residual parts is allocated according to a service test. Where a part of a tenement serves one flat, under subsection (4)(a), it will be a pertinent of that flat only. Where two or more flats are served by a part, a right of common property in that part will attach as a pertinent to those flats. The shares of common property amongst those owners whose flats are served by the pertinent will be equal, regardless of the extent of service.

23.     Subsection (5) apportions rights of common property into equal shares, except in the case of a chimney stack. If a chimney stack is considered common property under the provisions of the Act, then shares will be apportioned according to the ratio which the number of flues serving a flat bears to the total number of flues in the stack. "Chimney stack" is defined in section 29(1).

TENEMENT MANAGEMENT SCHEME

Section 4 - Application of the Tenement Management Scheme

24.     Section 4 deals with the application of the Tenement Management Scheme which is found in the schedule to the Act. The Tenement Management Scheme contains 9 rules which provide a system of management and maintenance in tenements.

25.     The rules of the Tenement Management Scheme will apply only where the tenement burdens, as defined in section 29(1), do not make provision in respect of the subject matter of the individual rules in the Scheme. Section 4 and the Scheme together provide a default management regime for tenemental property. Section 4 sets out how each of the rules in the Scheme are to apply.

26.     Subsection (2) provides that the Scheme will not apply where the development management scheme (defined in section 29(1) as the scheme under section 71 of the Title Conditions Act has been applied to the tenement.

27.     Under subsection (3) the provisions of rule 1 may, where it is relevant, be used to interpret other provisions of the Scheme.

28.     Where the tenement burdens provide a procedure for making decisions and that procedure applies to all flats in the building, then the procedure in the title should be used (under subsection (4)). In this case rule 2 would not apply. Where there is no procedure in the tenement burdens or the procedure does not apply to all the flats, then rule 2 of the Tenement Management Scheme will apply.

29.     Under subsection (5), rule 3 of the Scheme, which deals with what may be covered by basic scheme decisions and decisions relating to maintenance, will apply where there is no alternative provision made by the tenement burdens.

30.     If an owner or owners are not liable for the entire liability (i.e. 100%) of scheme costs under the provisions in the tenement burdens, then rule 4 of the Scheme, which allocates liability and apportionment of costs, will apply under subsection (6). The reference is to "liability" rather than amounts because burdens in title deeds are unlikely to provide for actual amounts and if they did so, the amounts specified would quite quickly bear little relationship to the actual cost of work to scheme property due to cost of living increases. In considering whether the entire liability of a scheme cost has been apportioned among the owners, account is also taken of any liability to be met by someone other than an owner.

31.     Rule 5 of the Scheme deals with special cases in relation to scheme costs and subsection (7) provides that rule 5 will apply where the burdens in the title deeds do not make equivalent provisions. If, however, the title deeds contain equivalent provisions to those set out in rule 5, they would prevail. Similarly where any provision of the Scheme applies, rules 8 and 9, which deal with the enforcement of scheme decisions and notification requirements, will apply to supplement the provision (under subsection (10)). While the enforcement measures under rule 8 will always apply where a Scheme rule has been applied, the application of rule 9 is subject to any alternative provision in the tenement burdens under subsection (11).

32.     Subsection (8) makes it clear that rule 6 will ensure that a procedural error will not invalidate any decision made for a tenement unless the title deeds for the tenement provide for how irregularities are to be treated.

33.     Subsection (9) provides that the provisions in the Scheme for emergency work found in rule 7 will not apply where there is an alternative provision in the tenement burdens. Paragraph (b) makes sure that any existing provision on apportioning liability will not be overridden.

34.     Rule 3.3 sets out specific monetary limits which, when exceeded, will require that written notice is made to each owner and that money is deposited into a maintenance account decided upon by the owners. These figures will need to be updated from time to time to take account of inflation. Subsection (12) accordingly gives Scottish Ministers the power to substitute new sums by order made by statutory instrument (section 32).

RESOLUTION OF DISPUTES

Section 5 - Application to sheriff for annulment of certain decisions

35.     This section provides a means by which a decision made by the owners according to the procedures of the particular management scheme applying to the tenement can be challenged. The management scheme could be set out in the burdens in the title deeds, the Tenement Management Scheme or a combination of the burdens and the individual rules of the Tenement Management Scheme (see section 27). Section 5 will not apply, however, where the development management scheme operates within a tenement. An owner has the right, under subsection (1), to make a summary application to the sheriff court for the annulment of that decision.

36.     Under subsection (2), the owners who can seek to have a majority decision overturned are, first, the owner of a flat who, at the time the decision was made, was not in favour, and, second, a new owner. The owner at the time the decision was made may not have been in favour of the decision or perhaps expressed no view, perhaps because they were not present at the meeting at which the decision was taken. A person who was not the owner at the time the decision was made must also be included to deal with the situation where ownership changes and the incoming owner may severally liable with the former owner under section 12.

37.     Subsection (3) provides that the defender for the purposes of such an application is all the other owners.

38.     Subsection (4) sets out the time limit for making an application. If an owner making the application attended the meeting where the decision was made, then he or she must apply to the court within 28 days of that meeting. In any other case, owners must apply for annulment of the decision no later than 28 days after the notice informing them of the decision was given to them. Where two (or more) persons own a flat, either (or any) of them may raise an action under section 5. The 28 day period within which an application to the sheriff may be made cannot be started for all owners by service of notice of a decision on just one of them. Each owner has 28 days from the date on which they are given notice. Section 30 makes provision about the giving of notice.

39.     Subsection (1) should be read with subsection (10) which provides that decisions must not be implemented, except when relating to urgently required work, until it is known whether an application to the sheriff court is to be made, and if made, until the application has been disposed of or abandoned. This in effect means that where decisions are not unanimous that notice of the decision must be given to owners even if the tenement burdens do not make provision for notification in any decision making procedure.

40.     Subsection (5) deals with the powers of the sheriff, who may make an order annulling the decision, in whole or in part. A sheriff may make such an order if satisfied that the scheme decision was not in the best interests of all the owners, or that it was unfairly prejudicial to one or more of the owners. When the sheriff is examining the best interests of the owners, they are to be considered as a whole group.

41.     Subsection (6) only applies in cases where the decision concerned relates to maintenance, improvements or alterations. When deciding whether to grant an order annulling such a decision, the sheriff must have regard to the age and condition of the property, the likely cost of any maintenance, improvements or alterations and the reasonableness of that cost. These circumstances are also found in section 8 which deals with the duty to maintain support and shelter.

42.     When a sheriff has made an order annulling a decision, subsection (7) provides that the sheriff may make another consequential order if it is thought appropriate in the circumstances. For example, in some cases (and despite subsection (10)), costs may be incurred before the application was disposed of by the sheriff. This subsection would enable the sheriff, where a decision has been annulled, to deal with the question of liability of the owners for costs already incurred in relation to that decision.

43.     Under subsection (8) any party to an application made to the sheriff court under this section may appeal to the Court of Session on a point of law. The Appeal must be made within 14 days of the sheriff making an order under this section or an interlocutor dismissing the application. Subsection (9) provides that a decision of the Court of Session will be final.

44.     A decision cannot be implemented under subsection (10), during the 28 day period in which an application can be made to the sheriff court for an annulment of the decision. If an application is made, the owners must not implement the decision until the court has dealt with the case and the 14 days allowed for appealing against the decision has passed and no appeal has been made (or the appeal has been dealt with by the court or the application has been abandoned).

45.     There is, however, an exception to subsection (10). Subsection (11) excludes a decision that concerns work which has to be carried out urgently (see rule 7 of the Tenement Management Scheme).

Section 6 - Application to sheriff for order resolving certain disputes

46.     This section gives the sheriff powers to make orders relating to the proper operation of the particular management scheme affecting a tenement or the provisions of the Act. Section 27 defines "management scheme". This could be the burdens in the title deeds, the Tenement Management Scheme or a combination of the burdens and the individual rules of the Tenement Management Scheme. The provisions of section 6 will not apply, however, where the development management scheme has been applied to a tenement under the Title Conditions Act. Subsection (1) provides that an owner may (by summary application) apply to the sheriff court for an order concerning any matter relating to the operation of the management scheme applying to a particular tenement, or any provision in the Act as it applies in relation to the tenement.

47.     Under subsection (2) the sheriff may grant the order sought or any other order as the sheriff may think necessary or expedient.

48.     Subsection (3) explains that any party to a dispute may appeal to the Court of Session on a point of law. They must do so within 14 days of the date of an order made under subsection (3) or within 14 days of the date of an interlocutor dismissing an application. The decision of the Court of Session will be final under subsection (4).

SUPPORT AND SHELTER

Section 7 - Abolition as respects tenements of common law rules of common interest

49.     Section 7 abolishes the common law rules of common interest as they apply to tenements. This section should be read with sections 8 and 9 which restate the common law in statutory form.

50.     Although the doctrine of common interest will no longer apply to tenements, it will still be applicable in any dispute involving a tenement building and any other building (whether a tenement or not) or any land not pertaining to the tenement.

Section 8 - Duty to maintain so as to provide support and shelter etc.

51.     This section imposes a positive obligation on an owner of any part of a tenement building to maintain that part so as to ensure that it provides support and shelter (subsection (1)). The positive obligation is confined to the "tenement building" itself and does not extend to the solum or to any land which forms part of the tenement (see section 26).

52.     Subsection (2) makes clear that an owner will not be obliged to maintain a part of the building if it would not be reasonable where the building has ceased to be worth repairing. The circumstances to be taken into account include, in particular, the age of the building, its condition and the likely cost of any maintenance. These particular circumstances are also found in section 5, when a sheriff is considering an application for the annulment of a scheme decision.

53.     Enforcement is dealt with in subsection (3). An owner can enforce the duty under subsection (1) if he or she is, or would be, directly affected by breach of the duty. Where a flat is owned in common, any of the owners may enforce this duty under section 28(5).

54.     Subsection (4) makes it clear that a pro indiviso owner of a part of a tenement can maintain that part without the need for the consent of co-owners in order to fulfil the obligation under section 8(1). In other words, where a part of a tenement is owned in common any owner will be able to carry out such work without the consent of the other owners.

Section 9 - Prohibition on interference with support or shelter etc.

55.     This section deals with the negative obligation to refrain from any alterations or work which might interfere with the support and shelter of the building. It also covers the rule of common interest relating to the right to light. Unlike section 8, this section applies to occupiers of flats (such as tenants) as well as to owners.

56.     The prohibition imposed under this section applies to the whole tenement, including the surrounding ground (see the definition of "tenement" in section 26). This contrasts again with Section 8 which only applies to the tenement building.

57.     Any owner who is or would be affected by breach of the prohibition may enforce the prohibition under subsection (2). An occupier, though bound by the prohibition, has no right to enforce. As with section 8, where a flat is owned in common any of the owners has the right to enforce under section 28(5).

Section 10 - Recovery of costs incurred by virtue of section 8

58.     The duty to maintain support and shelter falls to the person who owns that part of the tenement. Where property is owned solely by one owner, there is a danger that a scheme decision to carry out repairs could be blocked by the other owners in the knowledge that the same repair could be insisted upon under section 8. This section seeks to prevent this. Section 10 also operates to enable a minority (even one co-owner) to carry out works for support or shelter where a majority cannot be assembled and to treat it as a scheme cost in the same way as if authorised by a scheme decision.

59.     This section provides that the cost of a repair which is carried out under section 8 of this Act could be recovered from the other owners as if the repair had been carried out as part of a management scheme decision. The costs recovered would be equal to the amount that the owners would be liable for under the management scheme.



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