The Scottish Executive has published practical guidance for
professionals on the application of the provisions of the Tenements
(Scotland) Act 2004, and certain of the provisions of the Title
Conditions (Scotland) Act 2003 in relation to the management and
maintenance of common property.  Although primarily aimed at
professionals advising owners of flats in tenements, it will also be of
value to those dealing with commercial tenement properties, or those in
mixed use, as the Tenements (Scotland) Act applies to all tenemental
properties – not just residential ones.

The Guide – entitled Management and Maintenance of Common Property
– contains practical help on interpreting the new law, providing detail
of the principles behind the Tenements (Scotland) Act in relation to
management and maintenance, ownership of flats and common parts and how
the new law applies in cases where the titles are incomplete or
unworkable, including the possibility of using the variation provisions
set out in the Title Conditions (Scotland) Act to alter existing title
provisions.

One of the key principles of the Tenements (Scotland)
Act is to provide a scheme for management and maintenance of tenements
that will apply to the extent that the titles make no provision, so
that many tenements will now operate under a combination of provisions
in the title deeds and some of the terms of the statutory "Tenement
Management Scheme", which is set out in the Act.  The Scheme's
terms are considered in detail in Chapter 15 of the Guide.  The
Act introduces the concept of "scheme property" which includes the
ground on which the tenement is built, its external walls and the roof,
which are regarded as communal for management and maintenance purposes,
regardless of the arrangements in the title for actual ownership.

Often
the titles of tenement properties make no reference to the decision
making process for repairs and maintenance.  The Tenement
Management Scheme provides a set of rules for dealing with decisions
and for ascertaining liability and apportionment of costs incurred in
relation to scheme property.  It also covers matters such as
emergency work, enforcement and notice procedures.

Chapters in
the Guide include how to deal with references to rateable value and
feuduty, which were commonly used in older titles to tenement
properties as a basis for calculating the proportions in which each
flat owner in the tenement would be liable for costs relating to common
parts. Domestic rates were abolished over fifteen years ago, but
records of the valuation roll as at 1 April 1989, when domestic
rateable values were "frozen" are still available. Feuduties were
abolished with feudal abolition on 28 November 2004, but details of
feuduty amounts referred to in title deeds, will continue to be
incorporated for reference purposes in the title sheets of
properties.  If all else fails, recourse may be had to the
variation provisions in the Title Conditions Act.

Other chapters deal with:

  • resolution
    of disputes among owners in a tenement in relation to paying for common
    repairs and maintenance, including the protection afforded to the
    minority in certain circumstances;
  • the concept of common
    interest is explained, having been replaced in the Tenements (Scotland)
    Act with a statutory re-statement of the doctrine, including a positive
    obligation on owners of flats to maintain their flat where necessary to
    provide support and shelter of the building;
  • guidance is given
    for procedure to follow when a sale takes place during ongoing
    repairs, with the ability to register a notice of potential liability
    for costs in the property register, putting the liability for costs
    upon the incoming owner – who is thus warned as to the existence of
    repairs and can make appropriate arrangements with the seller during
    the course of the sale transaction;
  • advice for contacting absentee owners;
  • the
    statutory right of access to individual properties in the tenement if
    necessary for carrying out repairs, maintenance and other matters,
    including inspection and installation of service pipes;
  • arrangements
    in the legislation about insurance and demolition and abandonment of
    tenement buildings, and guidance on the use of property managers and
    factors, owners associations, registration and title deeds.

The Guide is available from the Scottish Executive website at: http://www.scotland.gov.uk/Resource/Doc/76169/0019425.pdf

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