Tenements Act 2004

Usually the Title deeds or the Deeds of Conditions for a property allow for the appointment of a Factor to arrange repairs / improvements to the common parts of the building in cases where the Property Title / Deeds of Conditions are silent on

• Routine Maintenance
• One Off Works
  
• Additional Services
• Insurance

The Tenements (Scotland) Act 2004 ensures that owners can appoint a factor for their block if a majority of owners in the block agree.

Routine Maintenance

The Factor can arrange inspections of the block and organise maintenance contractors and cleaning for routine work

One Off Works

The Factor can obtain estimates for non-routine work and ask you to approve them. If a majority agree, the manager can start the work. The contractor will expect the manager to have the funds to pay for the work, so the factor will ask you to pay your share of the estimated costs before the work starts

Additional Services

For an additional fee the Factor can organise common insurance for the block, manage maintenance contracts for lifts and boilers, and organise gardening services.

Your title deeds may contain a procedure for appointing a factor. If they don’t then the Act allows a majority of owners to appoint a factor for the block and that decision is binding on all owners, even if they voted against the appointment. You must decide what services your factor is to carry out when you appoint the factor and agree the fees to be paid.

Insurance

The Act requires each owner to insure their flat and the common parts of the block. As it is a legal requirement to have insurance, you are entitled to check that your neighbours have insurance in place. If anyone does not have insurance in place, you are entitled to go to court to force them to take out insurance. The Act also allows a common insurance policy for the whole block to be taken out and your factor can organise common insurance for all owners, usually at a very competitive rate.

Where the title deeds to a property make no express provision for common rights or where there is as gap in the rights laid down by the title deeds the Act breaks down the ownership of and common rights within the Tenement as follows:-

• The roof belongs to the owner or owners of the top floor and each is obliged to refrain from damaging the roof above their properties.

• The solum (the site) and any ground attached to the Tenement belongs to the owner or owners of the ground floor.

• The external walls belong to each owner so far as they enclose their property. The common interest of the other owners in the Tenement prevent any owner interfering with the walls as would endanger the Tenement.

• The floor and ceiling of each property are divided by an imaginary line through the middle of the joists and these are similarly protected.

• The common passages and stairs/lift are the common property of the flats which use them for access.

The Act covers liability for costs incurred

• In the first instance costs are apportione according to the title deeds provided that this covers the whole costs.

• If the property is common (and there are no relevant title provisions) costs are apportioned according to the size of the share.

• If an express decision in the title deeds deals with part of the costs and the property is common, the title provision is followed as far as possible and the balance of costs is then apportioned according to the size of the share owned.

Non Payment of Common Charges

The Act makes provisions for non-payment. If you fail to pay your factoring bill, then the factor can take action against you. This could be by:-

• Raising a court action – the factor can sue you for unpaid bills

• Obtaining an inhibition against you – this freezes your assets and stops you from selling or  mortgaging your property until the debt is paid off

• Registering a Notice of Potential Liability for Costs against the title of your property –  this Notice advises any purchaser that there may be unpaid bills for your property and a  purchaser will not want to buy your property until the debt is paid off.