Making decisions using the tenement management scheme
The tenement management scheme (TMS) sets out procedures flat owners need to follow when making 'scheme decisions' about maintaining and repairing common parts. These rules can be used if your title deeds don't specify how decisions should be made, or if different owners' title deeds say conflicting things.
The tenement management scheme doesn't just apply to tenements, it applies to most buildings which are divided into flats. Read the page on responsibility for repairs and maintenance in common areas to find out who the scheme applies to.
What decisions can be made under the tenement management scheme?
Any decisions made under the TMS are known as 'scheme decisions'. Unless the building's title deeds say otherwise, flat owners can use the rules set out in the TMS to make scheme decisions about:
carrying out maintenance work, including repairs and replacements, cleaning, painting, gardening and other day-to-day tasks
appointing or dismissing a property manager or factor to run your building
delegating power to a manager to inspect the building or make decisions to carry out maintenance
arranging inspections of the building to decide whether maintenance work is required
arranging insurance for common areas
authorising any maintenance of scheme property already carried out by an owner
installing a new door entry system
excusing an owner from paying a share in maintenance costs
changing or taking back any previous scheme decisions.
What decisions aren't covered by the TMS?
The TMS doesn't include decisions about alterations, demolition or improvements, unless these are part of the repair or maintenance work. For example, if you are repairing a broken window, you may decide to replace the glass with double glazing, in which case this would count as a repair rather than an improvement. Unless your title deeds say otherwise, you'll need to get the agreement of all the owners before you can go ahead with any improvements.
How are decisions made?
Decisions are made through majority voting, which means that over 50 per cent of the votes need to be in favour of a decision in order for it to be confirmed. Any decisions you make are binding, and can be enforced through the courts - the page on problems with common repairs explains more.
How does the voting system work?
The voting system works as follows:
Each flat has one vote, even if it has more than one owner.
If you're making decision about repairs or maintenance to structural parts, each flat in the building will have a vote.
If you're making decisions about repairs or maintenance to common property, only the flats that use that common property will have a vote.
Read the page on responsibility for repairs and maintenance in common areas for a definition of structural parts and common property.
If you own your flat jointly and you can't agree between you on which way to vote, you won't be able to vote at all, unless one of you owns a larger share of the property, in which case this person's vote will go forward.
Votes can be cast either by the owner, or by someone else nominated by the owner, for example, a letting agent or tenant.
How do we organise the vote?
Ideally, you should organise a meeting to carry out the voting, in which case you need to give all the owners at least 48 hours' written notice, for example, by emailing them, or putting a note under their door. If you don't know the name of the owner, you can address the note to 'The Owner'.
At the meeting, you can discuss why the repairs need to be done and how they should be carried out, and deal with any objections. In order to get the go ahead, it may be necessary to change the plans for the repair, for example, by reducing the amount of work to be done to save on money and disruption.
If you can't arrange a meeting, one person will need to collect all the votes. You can do this by going from door to door, or by asking people to return their vote by post or email. If you can't get hold of everyone, you can still go ahead with the vote. However, you must make sure that anyone who wasn't involved is notified in writing about the outcome of the vote as soon as possible.
What happens once a scheme decision has been made?
Once a scheme decision has been made, you need to decide:
who will arrange for the work to be done (this could be one of the owners, the property manager or factor or someone hired specifically to oversee the work, such as an architect or engineer)
who you'll hire to do the work
how you'll arrange to pay for the work
whether or not to approach the council for a statutory notice (read the page on problems with common repairs for more on this).
If any of the owners didn't vote, you won't be able to start the work for at least 28 days, in order to give the absent owners a chance to appeal if they're not happy with the decision (see 'can I appeal a decision' below).
What if I wasn't involved in the decision making process?
If you didn't take part in a vote (for example, because you were away from home when the vote was taken), this won't make the decision invalid. However, you should be told about the decision as soon as possible.
If you're liable to pay more than 75 per cent of the cost of repair work decided on in your absence, you're entitled to cancel the decision. In this case you'll need to email or write to the other owners within 21 days of finding out about the decision, to let them know that you don't want the work to go ahead.
Can I appeal a decision?
If you want to challenge a decision made by the TMS or in accordance with the title deeds, you can make an application to the sheriff court for an annulment. You can apply for an annulment if:
you weren't in favour of the decision made, or
you weren't an owner at the time the decision was made (for example, if you've just bought your flat).
You need to make your application within 28 days of the date the original decision was made, or the date you were told about it. No work can be carried out until the sheriff has made their decision on your appeal.
What will the sheriff take into account?
The sheriff will grant an annulment if they think that the decision was unreasonable and not in the best interests of all the owners or that it was particularly unfair to one or more owner.
If the decision relates to repair or maintenance work, in deciding whether such work would be reasonable the sheriff will also take the following considerations into account:
the age of the property
the likely cost of the proposed work
whether its reasonable to get the repairs done.
What if I'm not happy with the sheriff's decision?
If you're not happy with the sheriff's decision, you have 14 days to appeal to the Court of Session.
Where can I get help and advice?
Speak to a solicitor if you want to appeal a TMS decision. They will be able to:
tell you more about what's involved in applying to the sheriff court
give their opinion on your case
make the application on your behalf
represent you in court.
Your solicitor may also be able to resolve the situation for you, without having to go to court.
Depending on your circumstances, you may be able to get legal aid to help pay the costs.
What if there's an emergency?
In an emergency situation, any owner can carry out repairs to scheme property without having to go through the voting process first. However, you can only do this if the repairs are needed to prevent the building from damage or in the interests of health and safety. For example, this could be the case if a water pipe has burst or gas is leaking into the building.
The other owners will then be liable to pay a share of the costs - read the page on paying for common repairs to find out more.
Last updated: 29 December 2014