Untangling tenement maintenance in Scotland

For a practitioner trying to help tenement flat owners in Scotland with repair and maintenance, tears of frustration are common. For an owner or occupier, repairs and maintenance can become a nightmare. For politicians, the tangles in which their constituents find themselves as a result are a constant source of frustration.

About 40% of housing in Scotland falls under the definition of a tenement, namely two or more related but separate flats divided from each other horizontally.

The Scottish government states that tenement flat owners are responsible for maintaining not only the flats themselves but also the parts in which they have a common interest: 'While you are solely responsible for the upkeep of your own flat or house, parts of the tenement building or estate are normally the joint responsibility of all the owners whose title deeds say they have a right of common property.'

In contrast to English property law, a flat in Scotland can be owned outright – there is no freeholder with a responsibility for the main fabric of the building. This means that flat owners then have a common repairing responsibility, usually deriving from the property deeds.

However, it is not unusual for the deeds of individual flats in a property to contradict each other, with gaps in how responsibility is apportioned or references to calculations based on long-since abolished rateable values that do not add up to 100%. In the case of very old properties, no deeds may exist and therefore common law will apply.

Although some owners have availed themselves of the option, it is possible to agree to the statutory Tenement Management Scheme. But this must be drawn up with legal advice, and there is a general reluctance to incur the costs involved.

Until the 1960s, it was assumed that most stone-built tenements dating from before 1919 had had their day; many were pulled down and replaced, along with the town centres being gutted in the name of urban renewal. This approach – often labelled slum clearance – occasionally went into reverse with the help of grant funding from government.

Government-funded and local authority-managed grant initiatives rescued some tenemental building stock. The Edinburgh New Town Conservation Committee, for example, was provided with funding that turned the historic New Town area into generally well-maintained – and in places highly sought-after – period housing.

Edinburgh and Glasgow have always had different approaches to tenement management. In Glasgow, maintenance is usually managed by property factors – independent firms that specialise in looking after tenements – on behalf of tenement owners. They provide a degree of coordination, but tenements in the city are in many areas very poorly maintained, for a variety of reasons. 

On the other hand, Edinburgh's tenement owners have, historically, tended to manage the maintenance of their buildings' common parts themselves.

While under both systems tenement owners have a shared responsibility for maintaining and repairing the common parts, the government's advice that fellow owners can enforce this will ring hollow to most – and to the councillors and MSPs at the receiving end of their frustration.

Put simply, successive attempts at legal reform have failed to make it any easier to enforce cooperation between owners in the maintenance of their buildings. Moreover, data protection laws make it harder for tenement owners to identify and contact the others – and when they eventually do, this can only be the start of further problems.

The City of Edinburgh Council has long held powers to issue statutory notices in relation to disrepair affecting tenements. Historically, if the owners failed to agree and conduct repairs then the council was empowered to undertake the work and recover the cost from them.

In the 2000s, it used these powers to create a booming industry in tenement repair. In due course, however, this boom led to an acrimonious bust, and the council was forced to write off millions in irrecoverable debt.

Initially, the key reform sought was the introduction of compulsory five-yearly inspections of the common fabric – including roofs – of all tenement buildings in Scotland. The group proposed that the resulting assessments should be linked to the Home Report.

In Scotland, the seller of a residential property must provide such a report, a three-part document comprising a single survey and valuation, a property questionnaire and an energy report that aims to tell prospective buyers what they need to know about a property.

In truth, however, it does very little to address the common fabric of tenement properties; typically, for instance, surveyors do not inspect the roof coverings of tenements. It is often difficult, therefore, for a purchaser to distinguish between a tenement that is in an excellent state of repair and one that requires maintenance and repair totalling perhaps hundreds of thousands of pounds.

The whole idea of the Home Report was to obviate the need for purchasers to commission their own survey, and for the most part, in a reasonably buoyant market, purchasers rely on the report rather than have the common structure and fabric surveyed. This situation is not helped by the fact that the Home Report fudges the issue of how far it addresses the common parts of a tenement.

When the campaign drew MSPs' attention to this issue, it was not long before the need to tackle it started to receive all-party and, importantly, Scottish government interest. Facilities in Parliament were made available for meetings, and RICS Scotland and the Built Environment Forum Scotland provided administrative support and leadership. A panel of experts with an interest in tenement reform quickly came together as the Scottish Parliamentary Working Group on Tenement Maintenance.

• Scheduled building inspections: the scheme property of all tenements should be inspected every five years and a report prepared that will be made available to existing or prospective owners and tenants, neighbours and policymakers.
• Setting up compulsory owners' associations: in its interim report of January 2019, the group initially recommended that a revised version of the tenement management scheme – as described in the Scottish Law Commission's 1998 Report on the Law of the Tenement – would provide a suitable model to establish an owners' association as a corporate body.
• Establishing building reserve funds: at the core of the proposals was the need to hold building reserve funds in a designated national or regional social investment fund. Tenancy deposit protection scheme SafeDeposits Scotland was used as an example, but a credit union structure could also be suitable.

While the Scottish government accepted the report's recommendations in full, the second recommendation was referred to the Scottish Law Commission as it was considered to have legal ramifications that required further examination.

The Scottish Law Commission's deliberations over establishing compulsory owners' associations – which could fall foul of the European Convention on Human Rights if mishandled given that any compulsory change to existing ownership rights could arguably amount to an infringement or diminution of an individual property owner's rights – have also stalled.

Recognising the extreme slowness of anything requiring civil service attention, let alone legislation, Under One Roof has proposed a new parallel approach to reform. It has drawn attention to numerous hurdles that could be overcome without major legislative changes. Its suggestions, which are currently under consideration by Holyrood, include:

• making it compulsory for all new tenement buildings to start out with deeds that are in accordance with the best practice arrangements that the proposed reforms would apply to existing tenements
• improving debt recovery arrangements so owners who won't pay their share can more easily be compelled to do so
• creating a legal duty to maintain tenements to tolerable standards and ensure safety, including as it relates to cladding and fire prevention
• imposing a duty on all owners to maintain and carry out works to a reasonable standard 
• reforming arrangements for allocating the share of common repair and maintenance costs to each owner, given that disagreements often poison relationships between them
• resolving the difficulties created when there are an even number of owners and a tied vote on how to proceed with repairs and maintenance
• making the means of communication between owners compulsory.

Fresh impetus was given to the campaign when the parliamentary working group met in February and agreed to establish subgroups to report back on the various topics under discussion. For example, one group will work on a survey report format that could become the basis of the proposed compulsory building inspection; until this is enacted in law, it would be rolled out on a voluntary basis.

This initiative is being led by RICS in Scotland, the Royal Incorporation of Architects in Scotland and other professional bodies as well as the company Novoville, which has pioneered an online platform that aims to give the owners of tenement flats the tools they need to collaborate with each other.