While legislation now provides some protection to owners of flatted buildings trying to organise repairs to the common parts of their property, it does not override the terms of your title deeds. A recent Sheriff Court case (dealing with residential property – but equally applicable to owners and tenants of commercial premises) emphasises the point and serves as a reminder of the importance of being aware of the terms of your title deeds and thinking carefully before pressing ahead with common repairs.

Over the years, buildings with 2 or more floors and with different floors or flats under separate ownership have been given their own special treatment in Scotland. If the titles are silent, the law dictates who owns what when it comes to the parts which lie out with the boundaries of the separate flats. For example, the roof and roof space are owned by the top flat owner while the bottom flat owner will own the land beneath the building and any ground (e.g. garden ground) adjacent to it.

The title deeds very often amend the position to give each owner a right in common to the roof, chimneys, rhones etc as well as common stairwells. Ordinarily with shared ownership comes a shared obligation for maintenance. However, title deeds have not always been so well-drafted in ensuring that the maintenance liability is properly shared out amongst the separate owners or indeed for making provision for meetings of the owners to arrange for repairs. This can cause headaches when essential repairs are required, but the owners do not all share the appetite to contribute to the cost of these. It can also be a problem for tenant occupiers whose lease will probably require them to keep the premises in good condition and to comply with the obligations in statute and their title deeds.

The Tenements (Scotland) Act in 2004 was passed in an effort to address the problems which can arise in this regard. However, the sheriff court case of DH v SI decided earlier this year, is a reminder that owners and tenants need to be aware of the terms of the titles before relying on the Act.

One of the owners, "DH", was aware that urgent roof repairs were required to the building of which he owned one flat along with the owners of the seven other properties. The title deeds for the various flats stated that the roof was owned in common by all the flat owners and each owner should contribute a one-eighth share.

DH arranged a meeting of the owners but not all the others attended. Instead, a vote was taken by those who were there stating that DH and SI (another owner but who was absent from the meeting) should each pay one-half. The Act provides for meetings to be held and votes to be taken which are binding on all proprietors, whether or not they support the proposal – or even have made themselves available for the meeting. Accordingly, DH sought an order from the court requiring SI to pay his one half share.

SI refused to accept this for 2 reasons:-

1. The Act is a fall-back only where the titles do not fully allocate liability amongst owners. Here the titles clearly set out a one-eighth share amongst each owner.

2. The Act also states that at any meeting, the vote of a proprietor must not be counted if the effect of the vote is to state that he or she will not be liable for the costs of the necessary works.

The court had little hesitation in agreeing with SI and did not look favourably at the suggestion that the other owners should be able to vote – in contradiction of their title deeds – to allocate a disproportionate liability on another party – "ganging up" on another owner was not permissible.

Instead, the titles were quite clear in allocating a one-eight share to each owner and DH – who had shelled out the cost of the works – was only able to recover a one-eight share from SI. It was his responsibility to go round the other proprietors to recover the remainder.

A number of points can be taken from this case:-

1. The Act applies to any "flatted" property i.e. a building on different levels and owned separately in such levels – it covers commercial premises just as it applies to residential property, for example, buildings with offices or shops on the ground floor and residential flats above..

2. Not all buildings have titles which provide for a factor or managing agent to deal with common repairs – nor even for meetings to be held to discuss management of the building and its common parts.

3. The Act "steps in" to govern the position where the titles are silent or defective. But it doesn't override title deeds which allocate full repairing liability amongst the owners. And the Act doesn't apply at all to common maintenance of buildings which aren't on different levels.

4. If you are the owner or tenant of property which includes common parts, it is essential to ensure that you are aware of your rights and liabilities including your share of the costs of maintenance.

5. Unless it is unavoidable due to emergency, you should not press ahead with common repairs – and paying for these upfront – without at least familiarising yourself with the terms of your titles and engaging in dialogue with your neighbouring owners and where appropriate, your landlord, to establish a plan for sharing the costs of maintenance.

Brodies can assist clients in negotiating this minefield and avoiding pitfalls. Please speak to Laurence Douglas or your usual Brodies contact.