Who Rules the Roof - Owners responsibilities

Please note that the following is taken from a pdf file and has therefore lost its pictures and formating.
Who Rules the Roof - Guide to the Tenement Act

The Edinburgh council version of this can be found on http://www.edinburgh.gov.uk/download/downloads/id/4017/who_rules_the_roof   Tenement flat Converted Building Ex-council flat ‘four-in-a-block’ Modern apartment Who Rules the Roof? Common Repairs: how a major change in property law will affect you and your neighbours. Are you one of the owners affected? Although it is called the Tenements (Scotland) Act 2004 the law affects every owner (home, business or shop) in a building which is divided into two or more flats on different floors. What the act can do for you The Act aims to ensure that the communal parts of buildings are kept in good repair. It sets up a decision-making structure that should make it easier to carry out repairs and maintenance and deal with disagreements between owners. In most cases, this will mean that common repairs can be carried out with the agreement of the majority of owners. Filling the gaps Your Title Deeds will continue to be the key legal guardian of your rights and duties when it comes to common repairs. But where there are gaps in your Deeds, or where clauses are unworkable, the new rules will apply instead. From now on, if you want to organise a common repair you will need to be familiar with: • What your Title Deeds say, and • What the Tenements Act says Read on for details of what the Act says. If you want specific advice about your title deeds or the law, you should consult your solicitor or property agent. THE TENEMENTS (SCOTLAND ) ACT 2004 2 3 What you need to do now 4 Check your Deeds & get organised 5 Who is responsible for what? 7 Questions & Answers about communal property issues 8 Resources 14 THE TENEMENTS (SCOTLAND ) ACT 2004 What you need to do now Check your Title Deeds carefully • Your Title Deeds prove that you own your flat and define where the boundaries are. You can get copies of your own, or your neighbours’, Title Deeds from the Registers of Scotland for a small fee. (See Resources on p14) • Your Title Deeds might contain a Deed of Conditions or other document that specifies what counts as repairs and maintenance, who is responsible, who owns what and how decisions should be made. If so, follow the rules in the deed or other document. If your Deeds don’t cover some or all of these matters, ask your solicitor about using the Tenements Act to sort out disagreements. Organise • Talk to your neighbours. Consider setting up an “Owners’ Association” (if you don’t already have one) to decide which repairs are needed – and which are the most urgent. Contact our Property Maintenance Co-ordinators (see p14) for advice on setting up an Owners Association. New rules on insurance • Check that your building insurance is up to date. The new law makes it compulsory to insure your flat, and any parts of the building that you are responsible for, to full reinstatement value, regardless of what your Deeds say. Bear in mind that reinstatement value is likely to be different to the market value of your home. 4 Check your deeds What to do if you’ve found gaps or defects in your Title Deeds If your Title Deeds were drawn up recently, they may well contain effective procedures for repairing and maintaining communal parts of the building. However, many older Deeds don’t allow for efficient management and maintenance. But even if this is the case, your Title Deeds still take precedence over the new law. But if your Deeds don’t fully cover certain vital common repairs, such as repairs to the roof or stairs, then the Tenements Act fills the gaps. It sets out a structure where each flat gets one vote and decisions are reached by majority. Before, if your Deeds said nothing about how decisions were to be made, you would have had to get the agreement of every owner – this prevented many repairs from going ahead. Badly maintained buildings are dangerous Want to keep your property in good condition? Failure to carry out communal repairs will dent the value of your home. Where the majority of owners want to carry out repairs before costs escalate, the Tenements Act can be used to ensure that necessary repairs can’t be prevented by one or two owners who don’t want to pay. 5 Getting organised You and your fellow owners could consider using an architect, property managers or surveyors when deciding which projects are the most urgent. (see p14). What can owners deal with? Unless the Deeds say differently, owners can decide what needs to be done, appoint contractors to carry out the work, organise surveys and appoint property managers. If they want, owners can install door entry systems and arrange common insurance. It is a good idea to set up an owners’ association to help organise common repairs and maintenance. However this is not a requirement. How do owners make communal decisions? Unless your deeds say differently: • Each flat affected gets one vote and decisions are reached by majority • You must give 48 hours notice of a meeting – or speak to all the other owners individually • Tell owners about decisions as soon as practical • Majority decisions are binding on all existing owners and can be enforced by a single owner • Those who were not in favour, can appeal to the sheriff within 28 days • An owner who is due to pay 75% of costs can annul the decision within 21 days. 6 Who is responsible for what? Individual Responsibility Anything serving only one flat, including the door from the stair, its windows and the inside of walls, floors and ceilings to the halfway point with the next property. You are solely responsible for all repairs and maintenance to your own flat. Mutual Responsibility Mutual property is anything used by two or more flats including the stairs, stair windows, chimneystacks, service cables, pipes etc. Repairs to mutual parts of the building should be paid for equally by all who use that part – unless your Deeds say otherwise. ‘Scheme’ (Common) Property This is the most important part of the new law. It outlines all the parts of the building where maintenance is paid for by all owners. These include: the roof, the foundations, external walls and any other part of the property which the Title Deeds set out as being the property of two or more owners. It is important to note that paying for roof repairs now becomes the responsibility of every owner in the building – unless your Deeds say otherwise. Scheme Responsibility Mutual Responsibility Individual Responsibility 7 Questions & Answers A majority of owners have agreed to carry out common repairs in our tenement. Do I have to pay for my share of the costs if I did not agree to the works? Yes. Unless your Deed of Conditions say otherwise, and so long as proper procedures have been followed, you are liable to pay your share. If you do not pay, your co-owners can take legal action to recover your share of the costs. You can appeal to the Sheriff Court. We’ve agreed a programme of common repairs, but one owner has now decided to sell. Do we have to start again? No. Each owner becomes responsible for their share of the bill once the final decision is made. Someone who has moved may be hard to trace, so owners can protect themselves by serving a notice in the Land Register or Register of Sasines at least 14 days before a sale takes place. Then they can choose whether to ask the previous owner or the new owner to pay up. New owners can recover their costs from the seller. Should every flat in the building pay the same share towards repairs? In most cases, yes. If flats are all roughly the same size, then they should pay the same share. But if there is a big difference in size and the biggest flat is more than 50% larger than the smallest, then repair costs must be divided according to floor area. If you hire a professional property manager, fees should be divided equally among all flats, no matter what size. 8 Questions & Answers My upstairs neighbour won’t repair his windows and dry rot is spreading into the floor joists. What can I do? You can insist that repairs are carried out if the support or shelter of your flat is being reduced. The same goes for alterations that would reduce natural light in any other part of the building. This applies to all flats regardless of the Deeds. How will disputes among neighbours be sorted out? A lot of disagreements can be sorted out by a neutral mediator, such as a property manager. If there is a disagreement, then the Sheriff Court is the final decision maker on all aspects of the Tenements Act. For instance, if you don’t agree with a stair decision you have 28 days in which to Talking to your neighbours can remove any misunderstandings! appeal to the Sheriff Court. The Sheriff can overturn any decision he or she decides is not in the interests of all of the owners, or is unfairly prejudicial to one or more owners. How do I give my neighbours notice of a repair decision? You can do it by post, fax or email – either to the owner or his or her agent (such as a solicitor). If you don’t know who the owner is, or if they are uncontactable, you can post the notice through their letterbox addressed to ‘The Owner.’ 9 Questions & Answers My neighbour has given me notice that she wants to change her Title Deeds, but I think it might be to my disadvantage. What should I do? Take action as soon as you hear that a neighbour wants to change their Deeds. You may only have a few weeks, or less, to challenge their proposed changes. Speak to your solicitor urgently. I suspect that one of my neighbours has inadequate building insurance. Can I do anything about it? Yes. The act over-rides anything said in the Title Deeds about insurance. From now on every owner is obliged to carry enough buildings insurance to pay for full reinstatement of the flat and other parts of the building they are responsible for. Bear in Leaky pipes don’t just look bad – they damage your property mind that ‘full reinstatement’ will usually be different to the market value of your home. You are entitled to ask your neighbours for evidence that their insurance is fully paid up. Owners can set up a common policy and divide the costs as they wish. How do we find out who owns a flat? Registers of Scotland will be able to tell you who owns a flat and where they were living when they bought the flat. They may also be able to tell you if they own other property. 10 Questions & Answers We want to paint the stair, but one neighbour won’t pay because she says that’s not a repair. Is she within her rights? If she is a joint owner of the stair then she has to pay her share of all maintenance costs. These include cleaning, painting, gardening, routine work, repairs and ‘incidental improvements’ such as installing a new street door. What if an owner goes bankrupt or can’t be traced? The other owners will have to cover that person’s share of management costs and repairs to start with. It may be possible to recover these costs at a later date if the flat has a value or if there are any traceable assets – seek legal advice if large sums are involved. If one owner simply cannot pay Checking your roof regularly stops problems spreading and saves you money their share, the other owners may decide to share the costs equally between them. Registers of Scotland (see p14) can help you identify the owner of a property in your building. One flat owner won’t pay up. She says her ex-husband is still a joint owner and that he should pay. Can we force her to pay? When a flat has more than one owner, either of them can be required to pay the full share of costs – even if they have separated. It will then be up to him or her to recover the other owner’s share. 11 Questions & Answers Can I change some of the conditions in my Title Deeds? Yes. Under the Title Conditions (Scotland) Act 2003, you can apply to change conditions in your Title Deeds. You could use this new right to improve the rules for carrying out repairs. If the majority of owners in your building are in favour of changing conditions, it may be possible to achieve improvements. You should ask your solicitor to advise you. Our Title Deeds say that flats should only be occupied by a single family. The owner upstairs has let his flat to a group of noisy students, what can we do about it? You should take action quickly. If no-one challenges this breach of title conditions within five years, then that condition is removed and you won’t be able to get that condition put back later. Speak to your solicitor about challenging the breach of conditions. There’s nothing in my Title Deeds about the roof, but the top-floor owner is asking me for a share of the costs. Can she do this? Yes. In this case each owner now has to share costs of repair and maintenance of the roof. Blemishes like this may be a sign of worse happening underneath 12 Questions & Answers I’m still paying feu duties, how can I put an end to them? Feuduty was abolished by the Abolition of Feudal Tenure etc. (Scotland ) Act 2000, which came into force on 28th November 2004. No new feu duties can be created after that date. If your property has changed hands within the last 30 years or so the feu duty will probably already have been compulsorily redeemed or indeed, it may have been voluntarily redeemed at some time over that period by an owner. However, if neither of these things have happened and the feu duty still existed on 28th November 2004, the former superior had a period of 2 years from that date to serve a notice on you claiming “compensation” for the loss of the right to collect feu duty. A statutory formula was put in place for calculating the “compensation” figure similar to the formula which was previously used to calculate the “redemption” figure. If you did not receive such a notice by 28th November 2006, and you were not in any arrears with your feu duty on 28th November 2004, then you can’t now ever be asked for anything by way of feu duty or “compensation” for loss of the right to collect feu duty. However, if a notice was served, the former superior can pursue you for payment of the “compensation” for a period of 5 years. Similarly, if you were in arrears with your feu duty, the superior has 5 years in which to claim same from you. Any sum due by you will remain as a personal debt and will not pass to any new owner of your property. 13 Resources To find your title deeds… Register of Sasines/Land Register Erskine House, 68 Queen Street Edinburgh EH2 4NF 0845 607 0161 www.ros.gov.uk To find an architect… The Royal Incorporation of Architects in Scotland 15 Rutland Square Edinburgh EH1 2BE 0131 229 7545 www.rias.org.uk To find a building surveyor… Royal Institution of Chartered Surveyors Surveyor Court, Westwood Way Coventry CV4 8JE 0870 333 1600 www.rics.org British Institute of Building Technologists 01224 643106 Mediation service… Aberdeen Community Mediation Service 110 Crown Street Aberdeen AB11 6HJ 01224 560570 To find a solicitor… Law Society of Scotland 26 Drumsheugh Gardens Edinburgh EH3 7YR 0131 226 7411 www.lawscot.org.uk Publications… COMMON REPAIRS COMMON SENSE Communities Scotland has produced a free detailed information leaflet covering the Tenements Act. Ask at your local library or contact: Homepoint 0131 313 0044 www.communitiesscotland.gov.uk TENEMENT HANDBOOK Detailed advice about repairing older tenement properties. To buy a copy visit: www.thetenement.co.uk THE TENEMENTS (SCOTLAND) ACT 2004 The Stationery Office Scotland Bookshop, 71 Lothian Road Edinburgh EH3 9AZ 0870 606 5566. www.hmso.gov.uk The above publication is also available online at: www.opsi.gov.uk/legislation/scotland/ acts2004/20040011.htm For advice and information relating to private housing please contact… Aberdeen City Council Property Maintenance Co-ordinator 01224 522536/523398 privatehousing@aberdeencity.gov.uk 14 15 This document was reproduced with the kind permission of City of Edinburgh Council who originally produced it for Homeworks. DISCLAIMER: This leaflet can only give general information and cannot be an authoritative statement of the law. Specific advice should be sought in individual cases. www.aberdeencity.gov.uk Tenement flat Sub-divided property Ex-council flat Modern apartment Converted Building Common Repairs: how a major change in property law will affect you and your neighbours. Who Rules the Roof?