Office of Public Sector Information
Any rule of law which enables an owner of common property to recover the cost of necessary maintenance from the other owners of the property shall not apply in relation to any common property in a tenement where the maintenance of that property is provided for in the management scheme which applies as respects the tenement.
(1) Where an owner gives reasonable notice to the owner or occupier of any other part of the tenement that access is required to, or through, that part for any of the purposes mentioned in subsection (3) below, the person given notice shall, subject to subsection (5) below, allow access for that purpose.
(2) Without prejudice to subsection (1) above, where the development management scheme applies, notice under that subsection may be given by any owners' association established by the scheme to the owner or occupier of any part of the tenement.
(3) The purposes are—
(a) carrying out maintenance or other work by virtue of the management scheme which applies as respects the tenement;
(b) carrying out maintenance to any part of the tenement owned (whether solely or in common) by the person requiring access;
(c) carrying out an inspection to determine whether it is necessary to carry out maintenance;
(d) determining whether the owner of the part is fulfilling the duty imposed by section 8(1) of this Act;
(e) determining whether the owner or occupier of the part is complying with the prohibition imposed by section 9(1) of this Act;
(f) doing anything which the owner giving notice is entitled to do by virtue of section 19(1) of this Act;
(g) where floor area is relevant for the purposes of determining any liability of owners, measuring floor area; and
(h) where a power of sale order has been granted in relation to the tenement building or its site, doing anything necessary for the purpose of or in connection with any sale in pursuance of the order (other than complying with paragraph 4(3) of schedule 3 to this Act).
(4) Reasonable notice need not be given as mentioned in subsection (1) above where access is required for the purpose specified in subsection (3)(a) above and the maintenance or other work requires to be carried out urgently.
(5) An owner or occupier may refuse to allow—
(a) access under subsection (1) above; or
(b) such access at a particular time,
if, having regard to all the circumstances (and, in particular, whether the requirement for access is reasonable), it is reasonable to refuse access.
(6) Where access is allowed under subsection (1) above for any purpose, such right of access may be exercised by—
(a) the owner who or owners' association which gave notice that access was required; or
(b) such person as the owner or, as the case may be, owners' association may authorise for the purpose (any such person being referred to in this section as an “authorised person”).
(7) Where an authorised person acting in accordance with subsection (6) above is liable by virtue of any enactment or rule of law for damage caused to any part of a tenement, the owner who or owners' association which authorised that person shall be severally liable with the authorised person for the cost of remedying the damage; but an owner or, as the case may be, owners' association making any payment as respects that cost shall have a right of relief against the authorised person.
(8) Where access is allowed under subsection (1) above for any purpose, the owner who or owners' association which gave notice that access was required (referred to as the “accessing owner or association”) shall, so far as reasonably practicable, ensure that the part of the tenement to or through which access is allowed is left substantially in no worse a condition than that which it was in when access was taken.
(9) If the accessing owner or association fails to comply with the duty in subsection (8) above, the owner of the part to or through which access is allowed may—
(a) carry out, or arrange for the carrying out of, such work as is reasonably necessary to restore the part so that it is substantially in no worse a condition than that which it was in when access was taken; and
(b) recover from the accessing owner or association any expenses reasonably incurred in doing so.
(1) It shall be the duty of each owner to effect and keep in force a contract of insurance against the prescribed risks for the reinstatement value of that owner’s flat and any part of the tenement building attaching to that flat as a pertinent.
(2) The duty imposed by subsection (1) above may be satisfied, in whole or in part, by way of a common policy of insurance arranged for the entire tenement building.
(3) The Scottish Ministers may by order prescribe risks against which an owner shall require to insure (in this section referred to as the “prescribed risks”).
(4) Where, whether because of the location of the tenement or otherwise, an owner—
(a) having made reasonable efforts to do so, is unable to obtain insurance against a particular prescribed risk; or
(b) would be able to obtain such insurance but only at a cost which is unreasonably high,
the duty imposed by subsection (1) above shall not require an owner to insure against that particular risk.
(5) Any owner may by notice in writing request the owner of any other flat in the tenement to produce evidence of—
(a) the policy in respect of any contract of insurance which the owner of that other flat is required to have or to effect; and
(b) payment of the premium for any such policy,
and not later than 14 days after that notice is given the recipient shall produce to the owner giving the notice the evidence requested.
(6) The duty imposed by subsection (1) above on an owner may be enforced by any other owner.
(1) Subject to subsections (2) and (3) below and to section 17 of this Act, an owner shall be entitled—
(a) to lead through any part of the tenement such pipe, cable or other equipment; and
(b) to fix to any part of the tenement, and keep there, such equipment,
as is necessary for the provision to that owner’s flat of such service or services as the Scottish Ministers may by regulations prescribe.
(2) The right conferred by subsection (1) above is exercisable only in accordance with such procedure as the Scottish Ministers may by regulations prescribe; and different procedures may be so prescribed in relation to different services.
(3) An owner is not entitled by virtue of subsection (1) above to lead anything through or fix anything to any part which is wholly within another owner’s flat.
(4) This section is without prejudice to any obligation imposed by virtue of any enactment relating to—
(a) planning;
(b) building; or
(c) any service prescribed under subsection (1) above.
(1) The demolition of a tenement building shall not alone effect any change as respects any right of ownership.
(2) In particular, the fact that, as a consequence of demolition of a tenement building, any land pertaining to the building no longer serves, or affords access to, any flat or other sector shall not alone effect any change of ownership of the land as a pertinent.
(1) Except where a tenement burden otherwise provides, the cost of demolishing a tenement building shall, subject to subsection (2) below, be shared equally among all (or both) the flats in the tenement, and each owner is liable accordingly.
(2) Where the floor area of the largest (or larger) flat in the tenement is more than one and a half times that of the smallest (or smaller) flat the owner of each flat shall be liable to contribute towards the cost of demolition of the tenement building in the proportion which the floor area of that owner’s flat bears to the total floor area of all (or both) the flats.
(3) An owner is liable under this section for the cost of demolishing a tenement building—
(a) in the case where the owner agrees to the proposal that the tenement building be demolished, from the date of the agreement; or
(b) in any other case, from the date on which the carrying out of the demolition is instructed.
(4) This section applies as respects the demolition of part of a tenement building as it applies as respects the demolition of an entire tenement building but with any reference to a flat in the tenement being construed as a reference to a flat in the part.
(5) In this section references to flats in a tenement include references to flats which were comprehended by the tenement before its demolition.
(6) This section is subject to section 123 of the Housing (Scotland) Act 1987 (c. 26) (which makes provision as respects demolition of buildings in pursuance of local authority demolition orders and recovery of expenses by local authorities etc.).
(1) This section applies where a tenement building is demolished and after the demolition two or more flats which were comprehended by the tenement building before its demolition (any such flat being referred to in this section as a “former flat”) are owned by different persons.
(2) Except in so far as—
(a) the owners of all (or both) the former flats otherwise agree; or
(b) those owners are subject to a requirement (whether imposed by a tenement burden or otherwise) to erect a building on the site or to rebuild the tenement,
no owner may build on, or otherwise develop, the site.
(3) Except where the owners have agreed, or are required, to build on or develop the site as mentioned in paragraphs (a) and (b) of subsection (2) above, any owner of a former flat shall be entitled to apply for power to sell the entire site in accordance with schedule 3.
(4) Except where a tenement burden otherwise provides, the net proceeds of any sale in pursuance of subsection (3) above shall, subject to subsection (5) below, be shared equally among all (or both) the former flats and the owner of each former flat shall be entitled to the share allocated to that flat.
(5) Where—
(a) evidence of the floor area of each of the former flats is readily available; and
(b) the floor area of the largest (or larger) former flat was more than one and a half times that of the smallest (or smaller) former flat,
the net proceeds of any sale shall be shared among (or between) the flats in the proportion which the floor area of each flat bore to the total floor area of all (or both) the flats and the owner of each former flat shall be entitled to the share allocated to that flat.
(6) The prohibition imposed by subsection (2) above on an owner of a former flat may be enforced by any other such owner.
(7) In subsections (4) and (5) above, “net proceeds of any sale” means the proceeds of the sale less any expenses properly incurred in connection with the sale.
(8) In this section references to the site are references to the solum of the tenement building that occupied the site together with the airspace that is directly above the solum and any land pertaining, as a means of access, to the tenement building immediately before its demolition.
(1) Where—
(a) because of its poor condition a tenement building has been entirely unoccupied by any owner or person authorised by an owner for a period of more than six months; and
(b) it is unlikely that any such owner or other person will occupy any part of the tenement building,
any owner shall be entitled to apply for power to sell the tenement building in accordance with schedule 3.
(2) Subsections (4) and (5) of section 22 of this Act shall apply as respects a sale in pursuance of subsection (1) above as those subsections apply as respects a sale in pursuance of subsection (3) of that section.
(3) In this section any reference to a tenement building includes a reference to its solum and any land pertaining, as a means of access, to the tenement building.
(1) Where—
(a) any part of a tenement is damaged as the result of the fault of any person (that person being in this subsection referred to as “A”); and
(b) the management scheme which applies as respects the tenement makes provision for the maintenance of that part,
any owner of a flat in the tenement (that owner being in this subsection referred to as “B”) who is required by virtue of that provision to contribute to any extent to the cost of maintenance of the damaged part but who at the time when the damage was done was not an owner of the part shall be treated, for the purpose of determining whether A is liable to B as respects the cost of maintenance arising from the damage, as having been such an owner at that time.
(2) In this section “fault” means any wrongful act, breach of statutory duty or negligent act or omission which gives rise to liability in damages.
The Title Conditions (Scotland) Act 2003 (asp 9) shall be amended in accordance with schedule 4.
(1) In this Act, “tenement” means a building or a part of a building which comprises two related flats which, or more than two such flats at least two of which—
(a) are, or are designed to be, in separate ownership; and
(b) are divided from each other horizontally,
and, except where the context otherwise requires, includes the solum and any other land pertaining to that building or, as the case may be, part of the building; and the expression “tenement building” shall be construed accordingly.
(2) In determining whether flats comprised in a building or part of a building are related for the purposes of subsection (1), regard shall be had, among other things, to—
(a) the title to the tenement; and
(b) any tenement burdens,
treating the building or part for that purpose as if it were a tenement.
References in this Act to the management scheme which applies as respects any tenement are references to—
(a) if the Tenement Management Scheme applies in its entirety as respects the tenement, that Scheme;
(b) if the development management scheme applies as respects the tenement, that scheme; or
(c) in any other case, any tenement burdens relating to maintenance, management or improvement of the tenement together with any provisions of the Tenement Management Scheme which apply as respects the tenement.
(1) In this Act, references to “owner” without further qualification are, in relation to any tenement, references to the owner of a flat in the tenement.
(2) Subject to subsection (3) below, in this Act “owner” means, in relation to a flat in a tenement, a person who has right to the flat whether or not that person has completed title; but if, in relation to the flat (or, if the flat is held pro indiviso, any pro indiviso share in it) more than one person comes within that description of owner, then “owner” means such person as has most recently acquired such right.
(3) Where a heritable security has been granted over a flat and the heritable creditor has entered into lawful possession, “owner” means the heritable creditor in possession of the flat.
(4) Subject to subsection (5) below, if two or more persons own a flat in common, any reference in this Act to an owner is a reference to both or, as the case may be, all of them.
(5) Any reference to an owner in sections 5(1) and (2), 6(1), 8(3), 9, 10, 12 to 14, 17(1), (6) and (7), 18(5) and (6), 19, 22, 23 and 24 of, and schedule 3 to, this Act shall be construed as a reference to any person who owns a flat either solely or in common with another.
(6) Subsections (2) to (5) above apply to references in this Act to the owner of a part of a tenement as they apply to references to the owner of a flat, but as if references in them to a flat were to the part of the tenement.
(7) Where two or more persons own a flat in common—
(a) they are severally liable for the performance of any obligation imposed by virtue of this Act on the owner of that flat; and
(b) as between (or among) themselves they are liable in the proportions in which they own the flat.
(1) In this Act, unless the content otherwise requires—
“chimney stack” does not include flue or chimney pot;
“close” means a connected passage, stairs and landings within a tenement building which together constitute a common access to two or more of the flats;
“demolition” includes destruction and cognate expressions shall be construed accordingly; and demolition may occur on one occasion or over any period of time;
“the development management scheme” has the meaning given by section 71(3) of the Title Conditions (Scotland) Act 2003 (asp 9);
“door” includes its frame;
“flat” includes any premises whether or not—
used or intended to be used for residential purposes; or
on the one floor;
“lift” includes its shaft and operating machinery;
“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);
“owner” shall be construed in accordance with section 28 of this Act;
“power of sale order” means an order granted under paragraph 1 of schedule 3 to this Act;
“register”, in relation to a notice of potential liability for costs or power of sale order, means register the information contained in the notice or order in the Land Register of Scotland or, as appropriate, record the notice or order in the Register of Sasines, and “registered” and other related expressions shall be construed accordingly;
“sector” means—
a flat;
any close or lift; or
any other three dimensional space not comprehended by a flat, close or lift,
and the tenement building shall be taken to be entirely divided into sectors;
“solum” means the ground on which a building is erected;
“tenement” shall be construed in accordance with section 26 of this Act;
“tenement burden” means, in relation to a tenement, any real burden (within the meaning of the Title Conditions (Scotland) Act 2003 (asp 9)) which affects—
the tenement; or
any sector in the tenement;
“Tenement Management Scheme” means the scheme set out in schedule 1 to this Act;
“title to the tenement” shall be construed in accordance with section 1(2) of this Act; and
“window” includes its frame.
(2) The floor area of a flat is calculated for the purposes of this Act by measuring the total floor area (including the area occupied by any internal wall or other internal dividing structure) within its boundaries; but no account shall be taken of any pertinents or any of the following parts of a flat—
(a) a balcony; and
(b) except where it is used for any purpose other than storage, a loft or basement.
(1) Any notice which is to be given to an owner under or in connection with this Act (other than under or in connection with the Tenement Management Scheme) may be given in writing by sending the notice to—
(a) the owner; or
(b) the owner’s agent.
(2) The reference in subsection (1) above to sending a notice is to its being—
(a) posted;
(b) delivered; or
(c) transmitted by electronic means.
(3) Where an owner cannot by reasonable inquiry be identified or found, a notice shall be taken for the purposes of subsection (1)(a) above to be sent to the owner if it is posted or delivered to the owner’s flat addressed to “The Owner” or using some similar expression such as “The Proprietor”.
(4) For the purposes of this Act—
(a) a notice posted shall be taken to be given on the day of posting; and
(b) a notice transmitted by electronic means shall be taken to be given on the day of transmission.
(1) The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of this Act.
(2) An order under this section may modify any enactment (including this Act), instrument or document.
(1) Any power of the Scottish Ministers to make orders or regulations under this Act shall be exercisable by statutory instrument.
(2) A statutory instrument containing an order or regulations under this Act (except an order under section 34(2) or, where subsection (3) applies, section 31) shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
(3) Where an order under section 31 contains provisions which add to, replace or omit any part of the text of an Act, the order shall not be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, the Parliament.
This Act, except section 18, binds the Crown.
(1) This Act may be cited as the Tenements (Scotland) Act 2004.
(2) This Act (other than this section, section 25 and schedule 4) shall come into force on such day as the Scottish Ministers may by order appoint; and different days may be appointed for different purposes.
(3) Section 25 and schedule 4 shall come into force on the day after Royal Assent.
Tenements (Scotland) Act 2004