Tenement management scheme

Although the legislation refers to the 'tenement management scheme' the scheme can be employed by all blocks of flats, not just those traditionally considered as being tenement buildings. Any block of flats that comes within the scope of the legislation can use tenement management schemes. For more information about those buildings that fall within the scope of the legislation, please see the page on affected buildings.

Unless there are provisions in the building's title deeds stating otherwise, decisions to be made by a tenement management scheme can include decisions to:

• carry out maintenance work, which includes repairs and replacements, cleaning, painting and day to day running but not demolition or improvement unless these are reasonably incidental to maintenance

• appoint or dismiss a scheme manager

• delegate power to a manager to inspect properties or make decisions to carry out maintenance

• arrange inspections of property in order to decide whether maintenance work is required

• arrange insurance of common property

• authorise any maintenance of scheme property already carried out by an owner

• install an entry control system

• excuse an owner from paying a share in maintenance costs

• modify or revoke any scheme decision. [1]

Unless the title deeds state otherwise, when a decision is made which will affect scheme property it should be made through a process of majority voting. [2] Each flat within the building is to be allocated only one vote, even if that flat is jointly owned.

Meetings should be organised by the flat-owners for the purpose of voting. [3] If, however, a meeting cannot be held all flat-owners should be consulted individually and the votes subsequently counted.

When decisions are being made in relation to common property, only those flats with a share of ownership in that property are to be allocated a vote. [4] For more information, please see the page on scheme property.

If the decision relates to a structural element of the building or the running of the tenement management scheme, each flat in the tenement should be given one vote.

Votes must be cast either by the owner or an individual nominated by her/him. [5]

Any flat-owner who is liable to pay for more than 75 percent of repair work being carried out as a result of a scheme decision is able to annul that decision. [6]

Any procedural irregularity in the making of a scheme decision does not affect its validity. [7] However, any owner that was directly affected by a procedural error will have no liability for scheme costs if s/he was not aware that such costs were being incurred or objected to them immediately upon finding out. [8]

It is possible for an owner to challenge a decision made by the tenement management scheme or in accordance with the title deeds by making an application to the sheriff court for an annulment. [9] This will be possible if the owner was either not in favour of the decision made or s/he was not an owner at the time the decision was made. [10] Such an application must be made within 28 days of the original decision being made or of the applicant being notified of the decision if s/he was not present at the meeting where the decision was made. [11]

An annulment will be granted if the sheriff considers that the decision was unreasonable and not in the best interests of all the owners or that it was unfairly prejudicial to one or more owner. [12]

If the decision relates to repair or maintenance work, in deciding whether such work would be reasonable the Sheriff will take into account the age of the property, its condition, the likely cost of the proposed work, and the reasonableness of that cost. [13]

Further, if an owner is dissatisfied with the operation of the tenement management scheme, they may request an order from the sheriff resolving any relevant dispute. [14]

If the party seeking an annulment of a tenement management scheme decision is not satisfied by the sheriff's findings s/he may appeal to the Court of Session on a point of law within 14 days. [15]

Any work that is the subject of an application to court may not be carried out until the Sheriff has made a decision and any appeal has been decided or the right to appeal has expired. [16]

In order to carry out maintenance to scheme property it may be necessary to enter into the property of another flat-owner. This may be done after reasonable notice [17] has been given in order to:

• carry out maintenance agreed upon under the tenement management scheme [18]

• carry out maintenance to any part of another flat owned by the person requiring access [19]

• inspect in order to ascertain whether it is necessary to carry out maintenance [20]

• determine whether an owner is carrying out her/his duty to maintain and refrain from interfering with the building's support and shelter [21]

• measure the floor in order to determine liability for repairs [22]

• do anything in connection with the sale of the building after a power of sale order has been granted. [23]

The right to access the property may only be exercised by the individual or group that gave notice that access would be required or a person authorised by them. [24]

An owner may refuse to grant access if, having regard to all circumstances, it would be reasonable for her/him to do so. [25] When maintenance work is urgent notice need not be given. [26]

Any owner can carry out emergency repairs to scheme property without a scheme decision being made. S/he is only able to do this if it is necessary to prevent damage to the tenement or in the interests of health and safety. Other owners will be liable for the cost of the emergency repairs in the same way as if a decision had been made under the tenement management scheme to carry out the work. [27]