Development management scheme

The concept of the development management scheme was introduced by the Title Conditions (Scotland) Act 2003. [1] The Order providing the detail of how the scheme would work came into force on 1 June 2009. [2]

Unlike the tenement management scheme (TMS), the rules of the DMS do not apply by default. Instead, the owners or co-owners of the land on which the development is built must register the scheme in the Land Register using a deed of application. [3]

The legislation provides a template for the scheme, which can be varied to suit the needs of different developments (see 'varying the rules' below). Therefore the rules as outlined below may not necessarily apply to individual schemes.

In the deed of application, the owner must specify the common property to which the scheme applies (known as 'scheme property'). [4] If the development includes a tenement, this includes:[5]

• the ground on which the tenement is built

• its foundations

• its external walls

• its roof

• any part of a gable wall that is part of the tenement building

• any load bearing wall, beam or column.

However, this excludes:

• any extension which forms part of only one unit

• any door, window, skylight, vent or other opening

• any chimney stack or chimney flue.

Under a development management scheme, all the owners in the building automatically become members of an owners' association.[6] The association is a 'body corporate', which means that the individual owners will not be held to be personally liable for the association's obligations.

The function of the association is to manage the development for the benefit of all members.[7] The association has a range of powers with which to do this, including the power to:[8]

• buy up part of the development

• carry out maintenance, improvements or alterations to or demolition of the scheme property

• take out insurance for any part of the development

• buy moveable property for the development

• require owners to pay a service charge to pay for this

• open and maintain a bank or building society account

• borrow money

• engage employees or appoint agents.

The association must appoint a manager to act as an agent for the association. The manager need not be a member of the association.[9] The manager is charged with:[10]

• inspecting the scheme property

• arranging maintenance

• fixing the financial year for the association

• keeping financial records and accounts

• implementing decisions made by the association

• enforcing, where possible, the provisions of the scheme and any obligations owed to the association

• keeping a copy of the scheme's regulations, and

• keeping a record of the name and address of each member.

The association must meet at least once a year. It is up to the manager to arrange the meetings. The Order sets out details about the amount of notice to be given for general meetings, quorums and voting procedures.[11]

The DMS rules can be varied to suit the needs of individual developments, both when the scheme is set up and once it is in progress. The only part of the scheme that cannot be varied is the establishment of the members association.[12] The scheme can also be disapplied. The Order sets out procedures for varying and disapplying the scheme.

Any member who is dissatisfied with the operation of the scheme or unhappy about a decision made by the association can make a summary application to the sheriff court to resolve the dispute.[13]