Responsibility for repairs and maintenance in common areas
This page explains how you can work out who owns common areas of your building and who is responsible for their upkeep. This information should be in your title deeds. If not, the rules set out in the tenement management scheme (TMS) should be used to fill in the gaps. This page explains what the TMS is and how it works.
How do I know which areas of the building I'm responsible for?
If common areas of your building need repair work done, the first thing you need to do is find out who is responsible for maintaining and repairing that particular part of the property. Here's how to go about this.
Step 1: check the title deeds
You may be able to find this out by looking at your title deeds or by asking other owners to check their title deeds (see 'what do my title deeds say' below). If you live in a modern development or newly built flat, these things will probably be set out in a 'Deed of Conditions', which applies to all the flats in your block.
Step 2: check the tenement management scheme (TMS)
If your title deeds don't say who is responsible, you can use the rules set out in the tenement management scheme (TMS) to work it out (see 'what is the tenement management scheme' below).
Step 3: check whether that part of the building is 'scheme property'
If the area that needs repaired is very important to the building as a whole, it may be classed as 'scheme property' under the tenement management scheme (see 'what is the tenement management scheme' and 'what is scheme property' below). If so, all the owners in the building will have a say in the decision making process and will have to pay their share of the cost.
If you've bought your flat from the council or a housing association through the right to buy system, or if other flats in the building are owned by the council or a housing association, the council or housing association may still be responsible for the upkeep of the common areas. Check your title deeds or speak to the council or housing association to find out.
What do my title deeds say?
Title deeds are the legal documents which show that you own your home - you can find out more about them in our section on title deeds.
The title deeds set out:
- which parts of the property you own
- which parts of the property you are responsible for maintaining
- how your building is managed (for example, it may be managed by a factor)
- what proportion of certain areas you own (for example, you may own 50% of the roof or garden)
- who is responsible for repairs and maintenance
- how the cost of repairs and maintenance should be divided up.
These responsibilities are known as 'burdens'.
If you're not sure what the information in your title deeds means, you can ask your solicitor to explain it to you.
What if the information in the title deeds is incomplete or conflicting?
It's likely that all the flats in your building will have similar information in their title deeds. However, if all or some of this information isn't in the deeds, or if the information in your deeds clashes with the information in another owner's deeds, the rules set out in the tenement management scheme should be used to fill in the gaps (see 'what is the tenement management scheme' below).
If the information in your title deeds clashes badly with another owner's information, you may consider changing the provisions in your deeds to make things easier. Read the page on title deeds and speak to your solicitor to find out more.
What is the tenement management scheme (TMS)?
The tenement management scheme (TMS) was introduced in Scotland in 2004 to make it easier for owners to carry out repairs and maintenance to common areas of their property. It sets out procedures for dividing up repair and maintenance responsibilities, making decisions about the upkeep of common areas and paying for repair and maintenance work.
It's important to remember that the TMS procedures should only be used if this information isn't included in your title deeds - the provisions in your title deeds almost always override the rules in the TMS. However, you can use the TMS to fill in any gaps left by your title deeds. So, for example, you can use the TMS if:
- your title deeds say that you and your neighbour are jointly responsible for paying for the upkeep of the garden, but don't say how the costs should be divided
- your title deeds say that your building should be managed by a property manager or factor, but don't say how you should appoint or pay for one
- your title deeds state that the owners in your building are jointly responsible for maintaining certain common areas, but don't set out how you should make decisions about this.
The rules in the TMS are legally binding and can be enforced in court.
Who is covered by the tenement management scheme?
Despite its name, the TMS doesn't just apply to tenements. The rules will apply to you if:
- you live in a building that consists of two or more flats on different floors, and
- the flats are owned or meant to be owned separately.
The TMS rules do apply to:
- blocks of flats
- houses converted into flats
- apartment buildings
- flats over shops or businesses.
The TMS doesn't apply to:
- terraced houses
- semi-detached houses
- houses that have been divided into two separate halves (for example, by dividing the front and back or the two sides of the house)
- a house that has two or more families living in it, but isn't actually two or more separate properties.
So, for example, the TMS doesn't apply to:
- driveways or gardens shared by semi-detached houses
- common areas on housing estates, such as communal gardens or play areas.
What if the TMS doesn't apply?
In some situations involving common areas, the TMS rules won't apply to you. For example, this may be the case if:
- you live in a home that doesn't fall under the TMS (for example, a terraced house), and
- repair work needs done to a common area such as a driveway or garden, and
- neither your title deeds nor your neighbour's say who is responsible for the work.
In situations like this, you'll need to come to an agreement with your neighbour over how you will divide up the work and costs. If you can't reach an agreement, you may need to talk to a solicitor. Your solicitor will be able to:
- write to your neighbour insisting that the situation is sorted out
- negotiate with your neighbour's solicitor to reach a satisfactory compromise
- if necessary, take your case to court to let the court decide what should happen.
Bear in mind that getting solicitors involved and going to court could make the whole process very longwinded, stressful and expensive. If the repairs are not particularly costly or complicated, it may be cheaper and easier in the long run to arrange with your neighbour to carry them out yourself, even if you're not sure you're responsible.
Disputes with neighbours can make your life a misery so it's a good idea to build good relationships with your neighbours if possible - read our section on antisocial behaviour to find out what you can do if your neighbours are harassing you about the situation.
Under the TMS, which areas of the building do I own?
If your title deeds don't specify which areas of the property you own, there are some general rules you can use to work this out. For example:
- External walls are owned by the flats closest to them. For example, if your flat is at the front of the building, on the ground floor, you'll own the external wall at the front, from the ground floor up to the first floor.
- The roof is owned by the top floor flat beneath it.
- The garden is owned by the bottom flat closest to it (although this does not include any paths or steps used to access the building).
- The foundations below the building are owned by the bottom flats.
If you're not sure about this, speak to your solicitor and they'll be able to help you work it out.
Am I responsible for maintaining areas I own?
You are entirely responsible for maintaining, improving and repairing any parts of the building you own, unless:
- your title deeds say otherwise, or
- the part is of fundamental importance to the building, and is seen as scheme property, in which case all the owners will have a say in whether it should be repaired and may have to share the costs (see 'what is scheme property' below).
In practice, you may find that many parts of your building that need repair and maintenance work (for example, the roof and external walls) will be classed as scheme property.
Can I make all the decisions about areas of the building I own?
If, according to your title deeds or the rules outlined above, you are the only person in your building responsible for looking after a certain area and this area isn't classified as 'scheme property' (see 'what is scheme property' below), you won't need to get your neighbours involved in any decisions about its upkeep, such as:
- deciding whether or not it needs to be repaired
- choosing a contractor to carry out the work
- deciding what you want done (for example, whether to paint the hall a different colour or replace a hedge with a fence in the garden)
- supervising the work
- paying for the work.
However, although you won't need to consult other owners, you will need to take into account their needs and safety, and how work to (or neglect of) that part of the building will affect them.
What do I need to consider when making decisions about parts of the building I own?
When making decisions about the upkeep of parts you're responsible for, you must take into account the needs and safety of other owners who use them. This means there are some do's and don'ts to bear in mind when making decisions.
DO repair parts of the building used by other owners
By law, you have a duty to carry out essential repair works to any areas of the property you own that provide 'support or shelter' to any other owners (for example, by fixing a dangerous banister in the common stairwell). If you don't, the other owner(s) can take you to court to make you do the necessary work - read the page on common repair problems to find out more.
The only way you can get out of this duty is if:
- the building is so old or in such poor condition that it isn't worth carrying out the repairs, or
- the repairs will be so expensive they won't be worth doing.
Remember, any area that's really important to the building as a whole, such as the roof, may be classed as 'scheme property', which means the other owners will have a say in how the repairs are done and you'll be able to recover a share of the costs from them. See 'what is scheme property' below and read the page on paying for common repairs to find out more.
DON'T interfere with parts which are important to another owner's home
When you're carrying out repair or maintenance work, you mustn't tamper with any parts of the building that are integral to another owner's flat. For example, you mustn't remove structural walls, close off any entrances to the property or block or remove the fire escape. This applies to tenants as well as owners.
DON'T block anyone else's natural light
Repair and maintenance work you carry out mustn't interfere with anyone else's access to natural light. For example, you can't remove any windows in the stairwell or plant tall trees in the garden that block out the light to another owner's flat. This applies to tenants as well as owners.
DO keep your neighbours informed
If repair or maintenance work is likely to affect other owners in your building (for example, because of noise or dust, or because water, gas or electricity supplies will need to be cut off), it's polite to let them know when the work will be done and how long it's scheduled to take. It'll also help you to keep up a good relationship with your neighbours - this could benefit you in the future and make the whole process less stressful for everyone.
What is scheme property?
If an area is of vital importance to the building as a whole, it may be classed as 'scheme property'. Because scheme property is used or needed by everybody in the building, all the owners are responsible for maintaining it, unless their title deeds state otherwise.
There are three categories of scheme property:
- structural parts of the building, for example, the foundations, walls and roof
- all parts of the building that are common property
- all parts which the title deeds say are the responsibility of more than one owner.
What are structural parts?
The structural parts are:
- the ground below the building and its foundations
- the external walls, gable wall and any load bearing wall, beam or column
- the roof.
Structural parts don't include:
- doors, windows or skylights that only belong to your flat
- a chimney or chimney stack that only belongs to your flat
- any extensions which only belong to your flat.
Any structural parts located within the boundaries of your flat belong to you, but, unless the title deeds state otherwise, all the flat owners in the building will have an equal say in maintenance and repair of the structural parts, and will be responsible for covering the cost of the work. Read the page on making decisions using the TMS to find out how this works.
What is common property?
Some areas of your building, for example, the stairs, lift, external pipes and roof gutters, won't come within the boundaries of anyone's flat.
As long as your title deeds don't state otherwise, these common parts will count as scheme property. However, only the owners that use a common part are responsible for deciding whether work should be done to it and for paying for this work. For example:
- if the lift needs repairing, only owners on the first floor and above will need to arrange and pay for the work
- if a fire escape just leads from the top floor, only the owners of the top floor flats will have a say in how the repair work should be done and will be responsible for paying for it.
How do we make decisions about scheme property?
Unless your title deeds say otherwise, you should use the voting process outlined in the TMS to make joint decisions about the upkeep of scheme property. Read the page on making decisions using the tenement management scheme to find out how this works.
What if I need to access another owner's flat to carry out repair work?
Your title deeds may set out rules about accessing other owners' flats. If not, the TMS gives you the right to access other owners' property if you need to:
- carry out maintenance agreed under the tenement management scheme
- carry out maintenance to your flat or to common property
- inspect another owner's flat to find out if maintenance work needs to be done
- check that the owner is maintaining any parts of their flat that provide support or shelter for your property (for example, the roof)
- lead through a service pipe or cable
- measure the floor space, to work out liability for costs
- do anything in connection with the sale of the building after a power of sale order has been granted (this is an order from the sheriff instructing the owners to sell the building if it is in poor condition and no-one is living there).
However, you must give the owner reasonable notice - the law doesn't say how much, but at least 24 hours is polite.
Bear in mind that this also means that other flat owners have the right to enter your flat in these situations, provided they give you notice. However, you can refuse to let them in if it's very inconvenient for you.