Maintenance orders

A maintenance order requires a homeowner to produce a maintenance plan detailing how they intend to maintain the upkeep of their property or carry out maintenance to bring the property up to a reasonable standard. A maintenance order can be served on a homeowner by the local authority. [1] ‘Maintenance’ is defined in the Act as including:

• repairs and replacement

• cleaning

• painting

• gardening

• reinstating part (but not most) of a property, and

• other routine work.

It does not include:

• demolition

• alteration

• improvement, or

• internal decoration, unless it is to common parts of a shared property.

However, if any of the above activities are necessary as part of carrying out maintenance, then they can be included in the definition. [2]

A local authority can issue a maintenance order in the following circumstances:

• Where any benefit from work carried out under a repairing standard enforcement order or a work notice has been reduced or lost because the house has not been maintained, or

• if it believes that a homeowner is not maintaining, or is unlikely to maintain, their house to a reasonable standard. [3] The local authority can serve a maintenance order for this reason even if work has been previously carried out under a repairing standard enforcement order or work notice. [4]

For the purpose of maintenance orders, the term ‘house’ refers to any building capable of being lived in as a separate dwelling, including communal parts of buildings such as stairwells and shared gardens. However, it does not include mobile homes. [5] Maintenance orders can be served on joint owners of a property that contains more than one house (such as a block of flats).[6] They can also be served on the owners of non-residential properties, provided the work is necessary to maintain a house that forms part of the same building.[7]

There is no definition in the Act of ‘reasonable standard’, but guidance suggests that local authorities should devise a way of assessing whether a property is of a reasonable standard, and that they may wish to consider the standard of other properties in the area when carrying out this assessment. [8] A local authority should not take into account the individual situation of the homeowner when deciding what constitutes a ‘reasonable standard’. [9]

Guidance suggests that before considering whether to issue a maintenance order, the local authority should contact the property’s owners to ensure they are aware of the problem, [10] and that it should make sure that it has enough evidence for issuing an order. [11] The Act gives local authorities the power to enter premises in order to determine whether a maintenance order should be served. [12] The authority should give at least 24 hours’ notice of this, unless the situation is urgent or where giving notice would defeat the object of the proposed visit. [13]

The local authority should serve the maintenance order on the owner and occupier of the property, and anyone else who has an interest in the property, such as creditors (e.g. mortgage companies) and people who receive rent in respect of the property, provided the authority is aware that the individual or company has such an interest. [14] If the authority is unable to find out who owns the property, then it can address the order to ‘the owner’ or ‘the occupier’ and display it on or near the property concerned. [15]

The local authority must also register the maintenance order with the relevant land register, [16] which means that it will continue to apply even if the property is bought by new owners. The authority is not required to register the order until:

• the time period for the owner to appeal the order has passed, or

• if an appeal has been made, it has been either abandoned or determined. [17]

A maintenance order is treated as being served on the day that it is received by the owner of the property, [18] and will take effect from that day unless the owner appeals the notice [19] (see Appealing decisions, below). Service can include sending the document to the owner’s usual or last known address or workplace. [20]

A maintenance order should be given in writing [21] – this includes electronic forms such as email. [22] Orders sent by post should be sent by recorded delivery. [23]

A maintenance order should state how long the owner has to submit their plan to the local authority for approval, and how long the plan should cover – this will be up to five years. [24] Guidance also suggests that a local authority should provide with a maintenance order clear details of what should be included in a maintenance plan, [25] and a definition of what constitutes a ‘reasonable standard’. It is up to each local authority to decide what they consider to be a reasonable standard. They can consider the condition of other properties in the area, but not the personal circumstances of the homeowner. [26]

Unless they have successfully appealed the service of a maintenance order, homeowners served with such an order are required to produce a maintenance plan detailing how they intend to keep their home in a decent state of repair. The Act does not specify how long a homeowner has to submit their plan to the local authority, but the local authority must state this time frame within the maintenance order. [27] Guidance suggests that the local authority should allow a reasonable and realistic time for the plan to be submitted, [28] and should take account of factors including:

• whether the local authority is providing assistance with producing or implementing the plan

• whether professionals need to be involved in producing the plan

• the level of detail the plan needs to contain

• the complexity of the maintenance required. [29]

The plan should cover a period of up to five years – the exact period of time will be specified by the local authority in the order. [30]

Maintenance plans should contain the following elements:

• details of the maintenance that is to be undertaken throughout the period of the plan

• what steps will be taken to carry out this maintenance

• a timescale of when each step will occur, and

• an estimate of the costs involved. [31]

For joint maintenance plans for common property, the plan must apportion liability for the costs of the maintenance. The following can also be included in a joint plan:

• how responsibility for maintaining the property to which the maintenance plan relates will be apportioned

• a requirement that the owners appoint a person to manage the execution of the plan

• a requirement that a maintenance account is opened to finance the plan, and

• how such a maintenance account should be operated. [32]

Although a joint maintenance plan can cover areas of a property that are not owned communally, it cannot require owners to be responsible for or pay for maintenance of areas that they do not themselves own. [33]

Guidance suggests that a local authority could consider providing a template to give to homeowners to assist them in producing a plan, [34] and should also provide clear details of what should be included in a plan. [35]

Once a homeowner or owners of common property have submitted their maintenance plan to the local authority, then the authority will assess the plan and will either:

• approve the plan

• approve the plan with modifications [36]

• reject the plan and make a further maintenance order asking for a new maintenance plan to be made, [37] or

• reject the plan and substitute another plan that the local authority has devised itself. [38]

When deciding whether to approve a maintenance plan, or when producing one of its own, the local authority must ensure that the plan complies with the legislation and that it is likely to have the desired effect in bringing the maintenance of the property up to a reasonable standard or maintaining that standard. [39] When considering whether to approve a maintenance plan produced for a property containing three or more houses, the authority cannot approve the plan unless the majority of the homeowners have indicated to the local authority that they are happy with the plan submitted .[40]

The Act does not specify a time limit within which local authorities should come to a decision on a plan, but guidance suggests that they should do so as soon as possible. [41] The local authority must also register the maintenance plan with the relevant land register, [42] which will mean that it will continue to apply even if the property is bought by new owners. The authority is not required to register the plan until:

• the time period for the owner to appeal any decisions regarding the plan has passed, or

• if an appeal has been made, it has been either abandoned or determined. [43]

The homeowner is responsible for carrying out a maintenance plan, whether that involves doing the work themselves or appointing others to do the required work. The local authority is able to give assistance as it sees fit, but this cannot include financial assistance other than that specified below in ‘Financial help with administering a maintenance account’. [44] Assistance could involve providing practical help, or varying the plan to make it more achievable.

There are a number of ways in which a local authority can provide financial assistance to a homeowner to enable them to implement a maintenance plan.

A local authority can provide a discretionary grant to help a homeowner administer a maintenance account – this could cover the setting up or closing of such an account. [45] These grants are not recoverable. In the case of common property, an authority could, at their discretion, pay an amount into a maintenance account to cover a ‘missing share’. [46] This would occur when two or more owners of houses within the same premises have responsibility for implementing a joint maintenance plan, and one or more of those owners have failed to pay their share into a joint maintenance account because either:

• they are unable to pay

• it is unreasonable to expect them to pay, or

• they cannot be found.

A local authority can take steps to recover money paid to cover a missing share, [47] including registering a charge on the property, which will require the homeowner or homeowners to pay back the amount in instalments over 30 years.[48] The charge will be cleared if the homeowner or homeowners repay it earlier. [49] For more information, see the section on Repayment charges.

Homeowners may also apply for help under a local authority’s scheme of assistance. This can provide grants and loans to homeowners who need bring a house into, or keep it in, a reasonable state of repair. [50] For more information, see the page on Scheme of assistance.

A local authority can vary a maintenance plan in the following circumstances:

• if there has been a change of circumstances that justifies a variation [51], or

• before commencing enforcement of a maintenance plan (see If a maintenance plan is not complied with, below). [52]

The authority can vary a plan of its own accord, or if a variation has been requested by the homeowner. [53]

The authority may revoke a plan if it believes that it can no longer be satisfactorily implemented, and that a variation would still not allow a plan to be carried out. [54]

If the homeowner fails to produce a maintenance plan within the required timeframe, then the local authority can devise a maintenance plan itself. [55] It must ensure that the plan complies with the legislation and that it is likely to have the desired effect in bringing the maintenance of the property up to a reasonable standard or maintaining that standard. [56]

If a local authority believes that a homeowner has not complied with any aspect of the maintenance plan, then it can take any action that it deems necessary to implement the plan, aside from providing financial assistance other than that specified above in ‘Financial help with administering a maintenance account’. [57] If the authority decides to carry out maintenance work itself, then it can recover the costs from the homeowner, [58] including interest and administration charges. [59] It could do this by allowing homeowners to repay the costs in instalments, and may register a charge on the property  requiring the amount to be paid back over 30 years, although this will be cleared if the homeownerrepays the charge early. [60] For more information, see the section on Repayment charges.

Guidance suggests that local authorities should devise a mechanism for checking whether plans have been complied with. [61] This could include, for example, asking homeowners to provide regular progress reports to the authority. [62] An authority can also enter premises in order to determine whether a maintenance plan has been complied with. [63] The authority should give at least 24 hours’ notice of this visit, unless the situation is urgent or where giving notice would defeat the object of the proposed visit. [64]

Homeowners have a right of appeal against a number of local authority decisions regarding maintenance orders and plans. These include a decision:

• to serve a maintenance order [65]

• to approve a maintenance plan (this could happen where, for example, the authority has approved a joint maintenance plan for common property, but one or more of the homeowners disagrees with the plan)

• to devise a maintenance plan

• to vary a maintenance plan, or

• to revoke a plan. [66]

Homeowners cannot appeal against decisions to enforce a maintenance plan. [67]

Guidance suggests that the local authority should include information about appealing a decision when it serves any of the notices that can be appealed. [68]

Homeowners have 21 days from the date a notice is served to lodge an appeal, [69] although the sheriff may allow a late appeal if good cause can be shown. [70] The sheriff may choose to confirm or quash the decision, or make any other decision that s/he thinks fit. [71] There is no right of appeal against the sheriff’s decision. [72]

Homeowners cannot ask the Scottish Public Services Ombudsman to investigate a decision they have a right of appeal against. [73]