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Paying for common repairs

This page looks at issues involved in paying for maintenance and repairs to common areas, including how to divide up the costs, how to set up a maintenance account, and what to do if any owner refuses to pay up, or sells their flat without paying any outstanding repair bills.

What costs are involved in maintaining common areas?

Repair and maintenance costs include paying for:

  • a property manager or factor (if your building has one)
  • contractors to carry out day-to-day maintenance tasks such as stair cleaning and gardening
  • contractors to carry out other maintenance tasks, such as painting, clearing out the gutters or sweeping the chimneys
  • a surveyor, engineer or builder to assess whether repair work needs to be done
  • contractors to organise and carry out repair work
  • insurance premiums
  • bills from the council, if it has carried out any repair work to your building.

How do we divide up the costs of repairs and maintenance?

Using your title deeds

Your title deeds may state how common repairs should be paid for. Usually, liability for costs is divided up in the same proportions as responsibility for repairs and maintenance. For example, if your title deeds say that you own 50 per cent of the roof, they'll probably also say that you have to pay 50 per cent of the costs of any work carried out to it. The information in your title deeds overrides the rules set out in the tenement management scheme (TMS).

If your title deeds give you and one or more other owners joint responsibility for maintaining and repairing a common area but don't say how you should divide up the costs, you should share the costs out equally. If the floor area of the largest flat is more than one and a half times the floor area of the smallest flat, the costs should be divided proportionately.

Using the tenement management scheme (TMS)

If the title deeds to your home don't specify how common repairs should be paid for, or if different owners' deeds are inconsistent (for example, if joint responsibilities for costs don't add up to 100 per cent), you should use the rules outlined in the TMS to divide up the cost of common repairs to scheme property.

Read the page on responsibility for repairs to common parts to find out more about what the TMS is, who it applies to and what it covers, and for definitions of 'scheme property', 'structural elements', 'common property' and 'burdens'.

How does the tenement management scheme divide up costs?

Remember, the information in your title deeds overrides the provisions of the TMS, so these rules only apply if your title deeds don't explain how costs are to be shared out.

Paying for structural elements

Under the TMS rules, costs of maintaining the structural elements of the building such as the roof and external walls should be shared equally among all the flat owners in the building, unless the floor area of the largest flat is more than one and a half times bigger than the floor area of the smallest flat. In this case, the costs should be directly proportionate to the floor area of the flats. For example, if there are two flats and the floor area of your flat is 300 square metres and the floor area of another owner's flat is 150 square metres, you will have to pay two thirds of the expenses and the other owner will have to pay one third.

If you need to pay someone to measure each flat and work out the costs, this expense should be split equally. It can be expensive to get a surveyor to do this so ask how much it'll cost and get a written quotation before any work is done.

Paying for common property

The cost of repairs to common property should be divided equally among all the owners who use that common property. For example, if a top floor fire escape needs to be repaired, the cost should be shared equally between the flat owners on the top floor.

Paying for common areas that belong to you but provide support and shelter for someone else

If you are responsible for carrying out repairs to a common part that provides support and shelter to another owner, you will be able to reclaim a share of the expenses from that other owner, even if they didn't know that you were doing the work. You should use the TMS rules outlined on this page to divide up the costs and arrange payment. Read the page on responsibility for repairs and maintenance to find out more about 'support and shelter'.

How do we pay for maintenance?

To pay for ongoing maintenance, you may want to nominate one person to collect in the money regularly, for example, every month. However, it may be easier to set up a joint maintenance account, which all the owners can make regular payments into, for example, by standing order. In this case, you'll need to nominate at least two people who'll be able to manage the account and make payments from it.

Under the TMS, you have to set up a maintenance account if each owner needs to pay more than £100 for a one-off deposit for repair work, or more than £200 over the course of a year.

How do we pay for repair work?

Many contractors won't start repair work on common parts without a deposit. In some cases, the contractor may insist that all the money is collected before they begin the job, to avoid problems with owners not paying their share. This means that you may well need to pay your share of the deposit or the entire estimated cost of the work in advance. If this comes to more than £100, or £200 together with other costs you've paid that year, the money must be paid into a joint maintenance account (see 'how do we pay for maintenance' above).

You probably won't want to pay the contractor the entire sum up front. However, you can show them a bank statement, to prove that the money has been collected.

What happens when I need to pay up?

As soon as a scheme decision about repair or maintenance work is made, the owners responsible for the costs become liable for the money.

When you're asked to put money into the maintenance account to pay for day-to-day maintenance or repair work, the person in charge of the account should send you a written notice telling you:

  • how much you need to pay in
  • when you need to pay it by (this date must be at least 28 days away)
  • the account details for making the payment
  • how much the work in question is estimated to cost
  • how the costs have been divided up
  • how much the other owners have to pay
  • what the work involves and why it's necessary
  • when the decision to carry out the work was made, and who made it
  • when the work will start and when it's likely to finish
  • the names and addresses of the people in charge of the account
  • a refund date when you can get your money back if the work isn't carried out.

If you're not happy about the amount of money you have to pay, you can ask to see the quote from the contractor.

What if I'm due a refund?

If you pay money into the maintenance account for repair work but are not given a refund date, you have a right to reclaim your money if the work still hasn't begun 28 days after the start date. If there's any money left over when the work is finished, this will be returned to you. If, in the meantime, you sell your flat, you still have the right to reclaim this money.

Can I claim for repairs on my insurance?

Depending on the nature of the repair, it may be covered by your buildings insurance. Buildings insurance won't cover you for general wear and tear to the property, but it may well cover you for:

  • fire damage
  • storm and flood damage
  • leaking or burst water pipes
  • subsidence, heave and landslip (these affect the foundations of the home)
  • earthquakes
  • damage caused by vandals.

Check your policy to find out.

What if I can't afford to pay for repairs and maintenance?

In some cases, you may be entitled to a grant to help you pay for the repairs, although this will depend on your financial circumstances and what the work is for. If you're having money problems and can't afford the repairs, the other owners may make a scheme decision to reduce your share or exempt you altogether (see 'what if an owner doesn't pay their share' below). However, it's likely that they'll expect you to take out a loan to cover the costs, and they may take you to court if you don't pay up. Speak to a money adviser or solicitor for advice and help in this situation.

What if another owner doesn't pay their share?

If an owner can't pay their share of the costs (for example, because they're on a very low income), the other owners can make a scheme decision to let them off and divide the share between themselves. You might decide to do this if, for example, the owner doesn't use that particular common area very much.

If the owner is just being difficult, ask your solicitor to write them a letter, pointing out their duties under the provisions of their title deeds or the tenement management scheme and explaining that they can be taken to court if they don't pay up. Your solicitor should point out that even if the owner doesn't want the repair work to be carried out, they are legally bound to pay their share if the decision was made in accordance with the title deeds or the TMS. This may be enough to persuade them to hand over the money.

If an owner doesn't pay their share because they're out of the country or have gone bankrupt, the other owners will probably have to cover their share, but the non-payer will remain liable for the money. If they refuse to pay, any of the other owners have the right to try to reclaim the money by taking the non-payer to court using the small claims procedure (if the sum is less than £3,000) or summary cause procedure (if the sum is between £3,000 and £5,000).

Can the council help if an owner doesn't pay their share?

If you have a maintenance account (a common bank account that owners use for paying for maintenance), you can ask the council to pay the missing share in certain circumstances. The council can then recover the costs from the non-payer, by registering a repayment charge if necessary. The page on maintenance orders explains more about repayment charges.

The council can only pay a missing share if:

  • you and the other owners are responsible for carrying out maintenance work to the common areas of the building (through your title deeds or the TMS), and
  • the majority of owners have agreed to carry out the work, and
  • all the owners have been sent a notice asking them to pay their share of the funds into the account, and
  • one or more of the owners has not done so, and
  • one or more of the other owners has applied to the council, asking it to pay the missing share.

The notice sent out to all the owners asking them to pay up must set out:

  • the maintenance required and when it will be started and completed
  • when the maintenance was needed and/or agreed on (including the names of the owners who agreed to it)
  • how much it costs and why this is reasonable
  • how much each owner needs to pay, and how this has been worked out
  • the number of the maintenance account and where it's held
  • the deadline for paying the money into the account.

However, the council must be satisfied that:

  • the maintenance work to be done is reasonable, and
  • the amount the non-payer has been asked to contribute is correct in terms of the  provisions in their title deeds, or the TMS or DMS, and
  • the non-payer genuinely can't pay their share (the council may ask them to submit information about their finances to make sure this is the case), or it is unreasonable to expect them to pay, or
  • the non- payer can't be identified or found.

What if an owner sells their flat without paying their share?

If one of the owners in your building sells their flat, they will remain liable for their share of the costs of any repair or maintenance work that was carried out before the sale was finalised. Ideally, they should sort this out with the new owner when they make the sale. For example, the new owner may agree to pay the costs, in return for a reduction in the selling price.

What if the owner leaves without paying?

If, however, they leave without paying, the other owners may have to cover their share of the bill, and can take the previous owner to the sheriff court to get the money back (see 'what if an owner doesn't pay their share' above).

Can we get the money from the new owner?

You'll only be able to pursue the new owner for the costs if the previous owner, or any of the other owners in the building, registers a 'notice of potential liability of costs' in the Land Register or Register of Sasines (depending on where the deeds to the flat are registered). This must be done at least 14 days before the sale is finalised. In this case, the new owner will be jointly liable for the costs with the previous owner. If the new owner ends up having to pay for the repairs, they'll then be able to take the previous owner to court to reclaim the money.

What can we do to prevent problems?

If you're concerned that an owner may sell up without paying their share, talk to your solicitor or to the Registers of Scotland. They can help you register a notice of potential liability of costs. The notice will expire after three years, but can be re-registered.

What if somebody damages a common area?

If one of the owners is responsible for damaging a common area (for example, if they knock a hole in a corridor wall by moving in furniture) they will be liable for paying for the damage, even if they're not responsible for maintaining that particular part of the property. This means that the owner(s) responsible for repairing that part will be able to claim back the expenses from the person who did the damage, and can take them to court if necessary.

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The important points

  • Your title deeds or the tenement management scheme should state how common repairs should be paid for.
  • To pay for ongoing maintenance, you may want to nominate one person to collect in the money regularly, for example, every month.
  • If an owner can't pay their share of the costs, the other owners can make a scheme decision to let them off and divide the share between themselves.
  • If one of the owners sells their flat, they will remain liable for their share of the costs of any repair or maintenance work that was carried out before the sale was finalised.

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