The Tenement Management Scheme was brought in under the Tenements (Scotland) Act 2014. You can use the Tenement Management Scheme if your title deeds do not give you information on shared areas. You and your fellow owners can work together as a group and use the different sections of the scheme to make decisions on the shared areas of a building.
What maintenance must be carried out?
Many of the legal responsibilities of those who own tenement flats only apply when maintenance is being carried out. Maintenance involves:
- repairs and replacement
- painting and other routine work
- the day-to-day running of the tenement
- reinstating part of the tenement building
Maintenance does not include improvements, unless it is part of the maintenance work.
Which areas does everyone have to maintain?
Some areas of the tenement are so important that their maintenance should be the responsibility of all owners. These include:
- areas that your title deeds say are the shared property of two or more owners (for example, the hallway or stairs)
- any other areas that your title deeds say must be maintained by two or more owners (for example, the gutters and down pipes)
- the ground on which your tenement is built (but not a back court or front garden)
- any wall, beam or column that is load-bearing
- the roof area (including the rafters and any support structure)
- part of a gable wall that is part of the tenement building
- the outside walls
- the foundations
How should I make decisions about maintenance?
- decisions on maintenance can be taken by a majority of owners
- decisions which have been properly made are binding on all owners (even if they did not all agree)
- a meeting can be called by any owner to hold a vote
- each flat is entitled to one vote
- all owners entitled to vote must get 48 hours notice in writing of any meeting
- an owner can appoint someone else to make decisions on their behalf
- you only vote on issues if you are responsible for paying towards the cost (for example, you would not vote on a downpipe that did not serve your flat)
- everyone must agree on decisions about improvements (for example, installing a shared satellite dish)
- if a meeting cannot be held, you must still consult all other owners who are entitled to vote
How do we share the costs?
Owners are responsible for costs from the point when the decisions are made or emergency work is carried out.
Under the Tenement Management Scheme, all owners share, equally, the costs of maintenance and repair work, inspections, installing door-entry systems, and running costs such as management fees or for lift maintenance.
However, there are two exceptions if the:
- work involves maintaining a part that does not serve the whole tenement. In this case, only the responsible owners are legally responsible for the costs and they pay equal shares of these costs
- floor area of the largest flat is more than one and a half times that of the smallest flat. In this case, the legal responsibility for repair costs (but not inspections and running costs) for scheme property will be in proportion to the floor area of each flat
What if there is an emergency (repair)?
Owners also have powers to deal with emergencies. Emergency work is either work:
- to prevent damage to any part of the tenement
- for health and safety reasons that cannot wait for a decision to be taken
You or any other owner can instruct work without a scheme decision. In any dispute over this kind of work, you and your fellow owners must be able to justify what you have done. If not, you may appear to have acted without following the proper procedures and may find it difficult to get back the costs. If you cannot prove it was an emergency, you may find yourself paying for the cost of the work.
Can I appeal against a decision?
If you are unhappy about a decision you did not vote for, or a decision taken before you bought your flat where the work has not yet been carried out, you can apply to the Sheriff Court to have it cancelled. However, the Sheriff will only cancel a decision made by the majority of owners if it is:
- not in the best interests of the owners as a group
- unfair to one or more of them
You cannot appeal against a decision you have voted for. You should always seek independent legal advice before going to the Sheriff Court.
What happens if an owner is not willing to pay?
If any owner refuses to pay their share, you can get a decree in the Sheriff Court enforcing their duty to pay. Any owner has the right to try to reclaim the money by taking the non-payer to court. In these circumstances, you should get legal advice.