A recent dispute between neighbours about the costs of repairing render on their tenement raises important issues about how to approach common repair disputes. Here Collette Miller and Kevin Sturgeon from Harper Macleod's Housing team look at these issues and what options homeowners may have in similar situations.
Background to the case
The owner of the upper flat in a 1930s Edinburgh property wanted to completely replace the original render on the outside of the building because it was in poor condition and was becoming unsafe. Her downstairs neighbours didn't consent to full replacement, arguing that patch repairs would be sufficient. Furthermore, they only agreed to pay their half share for some of the patch repairs required because other areas had been damaged during works that the upstairs homeowner had undertaken and the downstairs couple argued that repairing that damage was all her own responsibility.
The case came to court for the Sheriff to decide whether and how much the downstairs flat owners were obliged to contribute to the repair costs.
The statutory position
The upstairs homeowner (the pursuer) relied on section 8 of the Tenements (Scotland) Act 2004 (the Act) which imposes rights and duties in relation to support or shelter of other parts of the building. The pursuer argued that the render provided "shelter" to the rest of the building and its deterioration had caused water ingress into her property. Under sections 10 and 11 of the Act, an owner can carry out works in order to protect the support and shelter of a tenement and recover the costs from the other owners of the common parts.
The Sheriff decided that the pursuer had failed to prove that the render had the function of "shelter" by waterproofing the building. The areas that were leaking into her flat did not correspond to the parts of the render that were showing damage and the Sheriff held that render does not provide either support or shelter to any part of the building. Section 8 only applies when the repairs are needed for the primary purpose of support or shelter.
The Sheriff noted that it is not enough that the damaged render poses a risk to health and safety, or that it is unsightly; nothing short of support or shelter will do to be able to rely on section 8 of the Act. As a result, there was no obligation on the other owners under section 8 of the Act and the pursuer's case failed.
What can you do if you find yourself in this position?
Relying exclusively on section 8 of the Act caused the pursuer to be unsuccessful in this action because that section has a narrow application and can only be used where repairs are necessary to a part of the building that provides support or shelter. So how can you get your neighbours to contribute to repairs that are required for a reason other than support or shelter?
1. Check the title deeds
The first step is to check the title deeds for your property to see if there are provisions for maintenance and repair of common parts. For modern flats and larger developments, these provisions are usually contained within a 'Deed of Conditions' which will be within the titles.
The titles may state how the costs of any repairs should be split up, i.e. 1/6th or 20%, or may provide for a calculation to be used to work out the cost attributable to each flat within the tenement.
A copy of your title deeds can be obtained from your solicitor or directly from Registers of Scotland (https://www.ros.gov.uk/services/order-documents). However, the titles may be silent on the matter of common repairs.
2. Use the Tenement Management Scheme
If you live in a tenement building and the titles are silent on common property repairs, the Tenement Management Scheme (the "TMS"), which is set out in Schedule 1 of the Act, may assist. The TMS defines what the common parts of a tenement are, how you can vote on the work to be done and the allocation of costs for works. The TMS will apply where the titles make no provision for common repairs. Where there are gaps in the title provisions, the TMS can be used to "fill in the blanks".
3. Emergency repairs
There is a special rule for emergency work that cannot wait until the full process of meeting and voting is complete. Rule 7 of the TMS provides that any owner can carry out works to prevent damage to any part of the tenement, or in the interests of health or safety, and recover the costs from the other owners after the event. It would still be advisable to let all of the neighbours know about emergency work that is being undertaken under this rule.
4. Issuing legal notices
Serving a Notice of Potential Liability for Costs is one tool available for recovering common maintenance costs. A solicitor can help you to issue a notice and register it against the property so that future owners are also bound by it.
Local councils also have authority to issue notices to flat owners in some circumstances when repairs are required. This can assist with encouraging reluctant owners to contribute to the repair costs and failure to do so can cause a problem for the owner when they come to sell their property.
Lessons to be learned
This case highlights the importance for homeowners, factors and building managers of understanding the options available to them when facing a neighbour who won’t consent to common repairs or won't contribute to the costs of doing them.
Get in touch – we're here to help
There are several statutory protections to prevent responsible homeowners from being out of pocket for undertaking essential maintenance and repairs. The team at Harper Macleod can help you to decide which is the best for you.