Tenements (Scotland) Act 2004

Boundaries and pertinents

Validity of scheme decisions

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• (1) Except in so far as any different boundaries or pertinents are constituted by virtue of the title to the tenement, or any enactment, the boundaries and pertinents of sectors of a tenement shall be determined in accordance with sections 2 and 3 of this Act.

• (2) In this Act, “title to the tenement” means—

• (a) any conveyance, or reservation, of property which affects—

• (i) the tenement; or

• (ii) any sector in the tenement; and

• (b) where ...—

• (i) the tenement; or

• (ii) any sector in the tenement,

has been registered in the Land Register of Scotland, the relevant title sheet.

Tenement boundaries

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• (1) Subject to subsections (3) to (7) below, the boundary between any two contiguous sectors is the median of the structure that separates them; and a sector—

• (a) extends in any direction to such a boundary; or

• (b) if it does not first meet such a boundary–

• (i) extends to and includes the solum or any structure which is an outer surface of the tenement building; or

• (ii) extends to the boundary that separates the sector from a contiguous building which is not part of the tenement building.

• (2) For the purposes of subsection (1) above, where the structure separating two contiguous sectors is or includes something (as for example, but without prejudice to the generality of this subsection, a door or window) which wholly or mainly serves only one of those sectors, the thing is in its entire thickness part of that sector.

• (3) A top flat extends to and includes the roof over that flat.

• (4) A bottom flat extends to and includes the solum under that flat.

• (5) A close extends to and includes the roof over, and the solum under, the close.

• (6) Where a sector includes the solum (or any part of it) the sector shall also include, subject to subsection (7) below, the airspace above the tenement building and directly over the solum (or part).

• (7) Where the roof of the tenement building slopes, a sector which includes the roof (or any part of it) shall also include the airspace above the slope of the roof (or part) up to the level of the highest point of the roof.

Pertinents

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• (1) Subject to subsection (2) below, there shall attach to each of the flats, as a pertinent, a right of common property in (and in the whole of) the following parts of a tenement—

• (a) a close;

• (b) a lift by means of which access can be obtained to more than one of the flats.

• (2) If a close or lift does not afford a means of access to a flat then there shall not attach to that flat, as a pertinent, a right of common property in the close or, as the case may be, lift.

• (3) Any land (other than the solum of the tenement building) pertaining to a tenement shall attach as a pertinent to the bottom flat most nearly adjacent to the land (or part of the land); but this subsection shall not apply to any part which constitutes a path, outside stair or other way affording access to any sector other than that flat.

• (4) If a tenement includes any part (such as, for example, a path, outside stair, fire escape, rhone, pipe, flue, conduit, cable, tank or chimney stack) that does not fall within subsection (1) or (3) above and that part—

• (a) wholly serves one flat, then it shall attach as a pertinent to that flat;

• (b) serves two or more flats, then there shall attach to each of the flats served, as a pertinent, a right of common property in (and in the whole of) the part.

• (5) For the purposes of this section, references to rights of common property being attached to flats as pertinents are references to there attaching to each flat equal rights of common property; except that where the common property is a chimney stack the share allocated to a flat shall be determined in direct accordance with the ratio which the number of flues serving it in the stack bears to the total number of flues in the stack.

Tenement Management Scheme

Application of the Tenement Management Scheme

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• (1) The Tenement Management Scheme (referred to in this section as “the Scheme”), which is set out in schedule 1 to this Act, shall apply in relation to a tenement to the extent provided by the following provisions of this section.

• (2) The Scheme shall not apply in any period during which the development management scheme applies to the tenement by virtue of section 71 of the Title Conditions (Scotland) Act 2003 (asp 9).

• (3) The provisions of rule 1 of the Scheme shall apply, so far as relevant, for the purpose of interpreting any other provision of the Scheme which applies to the tenement.

• (4) Rule 2 of the Scheme shall apply unless—

• (a) a tenement burden provides procedures for the making of decisions by the owners; and

• (b) the same such procedures apply as respects each flat.

• (5) The provisions of rule 3 of the Scheme shall apply to the extent that there is no tenement burden enabling the owners to make scheme decisions on any matter on which a scheme decision may be made by them under that rule.

• (6) Rule 4 of the Scheme shall apply in relation to any scheme costs incurred in relation to any part of the tenement unless a tenement burden provides that the entire liability for those scheme costs (in so far as liability for those costs is not to be met by someone other than an owner) is to be met by one or more of the owners.

• (7) The provisions of rule 5 of the Scheme shall apply to the extent that there is no tenement burden making provision as to the liability of the owners in the circumstances covered by the provisions of that rule.

• (8) The provisions of rule 6 of the Scheme shall apply to the extent that there is no tenement burden making provision as to the effect of any procedural irregularity in the making of a scheme decision on—

• (a) the validity of the decision; or

• (b) the liability of any owner affected by the decision.

• (9) Rule 7 of the Scheme shall apply to the extent that there is no tenement burden making provision—

• (a) for an owner to instruct or carry out any emergency work as defined in that rule; or

• (b) as to the liability of the owners for the cost of any emergency work as so defined.

• (10) The provisions of—

• (a) rule 8; and

• (b) subject to subsection (11) below, rule 9,

of the Scheme shall apply, so far as relevant, for the purpose of supplementing any other provision of the Scheme which applies to the tenement.

• (11) The provisions of rule 9 are subject to any different provision in any tenement burden.

• (12) The Scottish Ministers may by order substitute for the sums for the time being specified in rule 3.3 of the Scheme such other sums as appear to them to be justified by a change in the value of money appearing to them to have occurred since the last occasion on which the sums were fixed.

• (13) Where some but not all of the provisions of the Scheme apply, references in the Scheme to “the scheme” shall be read as references only to those provisions of the Scheme which apply.

• (14) In this section and section 4A, “scheme costs” and “scheme decision” have the same meanings as they have in the Scheme.

Resolution of disputes

Application to sheriff for annulment of certain decisions

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• (1) Where a decision is made by the owners in accordance with the management scheme which applies as respects the tenement (except where that management scheme is the development management scheme), an owner mentioned in subsection (2) below may, by summary application, apply to the sheriff for an order annulling the decision.

• (2) That owner is—

• (a) any owner who, at the time the decision referred to in subsection (1) above was made, was not in favour of the decision; or

• (b) any new owner, that is to say, any person who was not an owner at that time but who has since become an owner.

• (3) For the purposes of any such application, the defender shall be all the other owners.

• (4) An application under subsection (1) above shall be made—

• (a) in a case where the decision was made at a meeting attended by the owner making the application, not later than 28 days after the date of that meeting; or

• (b) in any other case, not later than 28 days after the date on which notice of the making of the decision was given to the owner for the time being of the flat in question.

• (5) The sheriff may, if satisfied that the decision—

• (a) is not in the best interests of all (or both) the owners taken as a group; or

• (b) is unfairly prejudicial to one or more of the owners,

make an order annulling the decision (in whole or in part).

• (6) Where such an application is made as respects a decision to carry out maintenance, improvements or alterations, the sheriff shall, in considering whether to make an order under subsection (5) above, have regard to—

• (a) the age of the property which is to be maintained, improved or, as the case may be, altered;

• (b) its condition;

• (c) the likely cost of any such maintenance, improvements or alterations; and

• (d) the reasonableness of that cost.

• (7) Where the sheriff makes an order under subsection (5) above annulling a decision (in whole or in part), the sheriff may make such other, consequential, order as the sheriff thinks fit (as, for example, an order as respects the liability of owners for any costs already incurred).

• (8) A party may not later than fourteen days after the date of—

• (a) an order under subsection (5) above; or

• (b) an interlocutor dismissing such an application,

appeal to the Court of Session on a point of law.

• (9) A decision of the Court of Session on an appeal under subsection (8) above shall be final.

• (10) Where an owner is entitled to make an application under subsection (1) above in relation to any decision, no step shall be taken to implement that decision unless—

• (a) the period specified in subsection (4) above within which such an application is to be made has expired without such an application having been made and notified to the owners; or

• (b) where such an application has been so made and notified—

• (i) the application has been disposed of and either the period specified in subsection (8) above within which an appeal against the sheriff’s decision may be made has expired without such an appeal having been made or such an appeal has been made and disposed of; or

• (ii) the application has been abandoned.

• (11) Subsection (10) above does not apply to a decision relating to work which requires to be carried out urgently.

Application to sheriff for order resolving certain disputes

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• (1) Any owner may by summary application apply to the sheriff for an order relating to any matter concerning the operation of—

• (a) the management scheme which applies as respects the tenement (except where that management scheme is the development management scheme); or

• (b) any provision of this Act in its application as respects the tenement.

• (2) Where an application is made under subsection (1) above the sheriff may, subject to such conditions (if any) as the sheriff thinks fit—

• (a) grant the order craved; or

• (b) make such other order under this section as the sheriff considers necessary or expedient.

• (3) A party may not later than fourteen days after the date of—

• (a) an order under subsection (2) above; or

• (b) an interlocutor dismissing such an application,

appeal to the Court of Session on a point of law.

• (4) A decision of the Court of Session on an appeal under subsection (3) above shall be final.

Support and shelter

Abolition as respects tenements of common law rules of common interest

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Any rule of law relating to common interest shall, to the extent that it applies as respects a tenement, cease to have effect; but nothing in this section shall affect the operation of any such rule of law in its application to a question affecting both a tenement and—

• (a) some other building or former building (whether or not a tenement); or

• (b) any land not pertaining to the tenement.

Duty to maintain so as to provide support and shelter etc.

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• (1) Subject to subsection (2) below, the owner of any part of a tenement building, being a part that provides, or is intended to provide, support or shelter to any other part, shall maintain the supporting or sheltering part so as to ensure that it provides support or shelter.

• (2) An owner shall not by virtue of subsection (1) above be obliged to maintain any part of a tenement building if it would not be reasonable to do so, having regard to all the circumstances (and including, in particular, the age of the tenement building, its condition and the likely cost of any maintenance).

• (3) The duty imposed by subsection (1) above on an owner of a part of a tenement building may be enforced by any other such owner who is, or would be, directly affected by any breach of the duty.

• (4) Where two or more persons own any such part of a tenement building as is referred to in subsection (1) above in common, any of them may, without the need for the agreement of the others, do anything that is necessary for the purpose of complying with the duty imposed by that subsection.

Prohibition on interference with support or shelter etc.

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• (1) No owner or occupier of any part of a tenement shall be entitled to do anything in relation to that part which would, or would be reasonably likely to, impair to a material extent—

• (a) the support or shelter provided to any part of the tenement building; or

• (b) the natural light enjoyed by any part of the tenement building.

• (2) The prohibition imposed by subsection (1) above on an owner or occupier of a part of a tenement may be enforced by any other such owner who is, or would be, directly affected by any breach of the prohibition.

Recovery of costs incurred by virtue of section 8

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Where—

• (a) by virtue of section 8 of this Act an owner carries out maintenance to any part of a tenement; and

• (b) the management scheme which applies as respects the tenement provides for the maintenance of that part,

the owner shall be entitled to recover from any other owner any share of the cost of the maintenance for which that other owner would have been liable had the maintenance been carried out by virtue of the management scheme in question.

Repairs: costs and access

Determination of when an owner’s liability for certain costs arises

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• (1) An owner is liable for any relevant costs (other than accumulating relevant costs) arising from a scheme decision from the date when the scheme decision to incur those costs is made.

• (2) For the purposes of subsection (1) above, a scheme decision is, in relation to an owner, taken to be made on—

• (a) where the decision is made at a meeting, the date of the meeting; or

• (b) in any other case, the date on which notice of the making of the decision is given to the owner.

• (3) An owner is liable for any relevant costs arising from any emergency work from the date on which the work is instructed.

• (4) An owner is liable for any relevant costs of the kind mentioned in rule 4.1(d) of the Tenement Management Scheme from the date of any statutory notice requiring the carrying out of the work to which those costs relate.

• (5) An owner is liable for any accumulating relevant costs (such as the cost of an insurance premium) on a daily basis.

• (6) Except where subsection (1) above applies in relation to the costs, an owner is liable for any relevant costs arising from work instructed by a manager from the date on which the work is instructed.

• (7) An owner is liable in accordance with section 10 of this Act for any relevant costs arising from maintenance carried out by virtue of section 8 of this Act from the date on which the maintenance is completed.

• (8) An owner is liable for any relevant costs other than those to which subsections (1) to (7) above apply from—

• (a) such date; or

• (b) the occurrence of such event,

as may be stipulated as the date on, or event in, which the costs become due.

• (9) For the purposes of this section and section 12 of this Act, “relevant costs” means, as respects a flat—

• (a) the share of any costs for which the owner is liable by virtue of the management scheme which applies as respects the tenement (except where that management scheme is the development management scheme); and

• (b) any costs for which the owner is liable by virtue of this Act.

• (10) In this section, “emergency work”, “manager” and “scheme decision” have the same meanings as they have in the Tenement Management Scheme.

Liability of owner and successors for certain costs

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• (1) Any owner who is liable for any relevant costs shall not, by virtue only of ceasing to be such an owner, cease to be liable for those costs.

• (2) Subject to subsection (3) below, where a person becomes an owner (any such person being referred to in this section as a “new owner”), that person shall be severally liable with any former owner of the flat for any relevant costs for which the former owner is liable.

• (3) A new owner shall be liable as mentioned in subsection (2) above for relevant costs relating to any maintenance or work (other than local authority work) carried out before the acquisition date only if—

• (a) notice of the maintenance or work—

• (i) in, or as near as may be in, the form set out in schedule 2 to this Act; and

• (ii) containing the information required by the notes for completion set out in that schedule,