Cost of repairs

The cost of maintaining the structural elements of the building such as the roof and external walls is to be shared equally amongst all the flat owners in the building. [1] One exception to the above rule applies where the floor area of the largest flat is greater than 1½ times the floor area of the smallest flat. In such cases the cost to each owner with a share in the common property should be directly proportionate to the floor area of their flat. [2] Where the structural elements are located within a flat, the owner of the flat may be able to claim back the costs of any previous repairs s/he has made outwith the tenement management scheme since 28 November 2004 when the Tenements (Scotland) Act came into force. [3]

The cost of repairs to common property should be divided equally amongst all those with a share of ownership in it. [4] Therefore, where only the item being repaired serves some of the flat-owners, for example a top floor fire escape, the cost of its repair should be shared equally amongst flat owners on the top floor.

Where the title deeds of a tenement make provision for any part of it to be maintained by two or more owners, but fail to specify how cost should be met, that cost should be shared equally amongst the flat owners given responsibility for maintenance. Again there is an exception to this rule where the largest of those flats is greater than 1½ times the size of the smallest. [5]

An owner becomes liable to pay for any work to scheme property as soon as a decision has been made by the management scheme that such work should go ahead. [6]

Where a flat is sold while the seller still has unpaid debts for maintenance the new owner may be severally liable with the seller for this amount. [7] This will only be the case, however, when a notice of potential liability is served with the Keeper of Registers of Scotland at least 14 days before the new owner acquires the property. [8] A notice of potential liability for costs expires at the end of the period of three years beginning with the date of its registration, unless it is registered again before the end of that period. [9] Where a new owner pays any relevant costs for which a former owner of the flat is liable, the new owner may recover that amount from the previous owner. [10]

A flat-owner that is entitled to recover costs from another owner will still be entitled to do this after s/he has sold her/his part of the tenement building. [11]

If a flat-owner has already made repairs to her/his flat in order to provide 'support or shelter' s/he will be able to claim back a share of expenses from the other flat-owners. This will be the case if the repairs they have made were to areas that can be defined as part of scheme property. [12] Owners will be liable even if they were unaware of the fact that the work was being carried out.

There is a duty on all flat-owners to insure their own property and any common property attached to it up to reinstatement value. [13] This duty applies even if the title deeds state otherwise. Other owners have a right to request to view the insurance papers of any other flat-owner in the building. [14] They may also request proof of the last payment made towards the policy. [15] Any such requests must be made in writing and responded to within 14 days. [16]

If any part of scheme property is damaged as the result of a wrongful or negligent act [17] by a person, that person will be liable to pay for any repairs needed as a result of that damage. Any of the flat-owners that contribute financially to the upkeep of the damaged part of the tenement will be able to claim damages. [18] It is not necessary for the flat-owner making the claim to have a right of ownership in the damaged property. 

When the majority of owners have agreed for work to be carried out on their property, and one or more owners are unwilling or unable to pay their share, then the local authority are allowed to pay the missing share/s. If a local authority does intend to make up a short fall, then they must inform the owner, who has not paid, that they are going to make the payment itself. 

The local authority has the power to recover this cost from the owner which could include making a charge over the property. [19] ]

Where a registered social landlord is the owner of at least one flat in the tenement and has paid an owner’s share of scheme costs they may also pay the missing share and can recover the costs from the owner (except costs for a common policy of insurance). [20]

A charge may also be made over the property until such time as the amount is repaid. [21]

Where this action is taken by a registered social landlord the maximum repayable amount is £10,000.[22] ] There is no maximum amount for action by a local authority.

Decisions can be appealed at the Sheriff court. [23]