David McLeod | Senior Solicitor

Not Everyone Has Good Neighbours

Jackson Boyd recently represented a client, who was the owner and occupier of the upper flat in a detached Victorian villa, which was in a considerable state of disrepair and required various works to bring it back to a habitable condition. The building was divided into two separate properties sometime prior to the 1920’s. The issues for the court to decide were who was responsible for the expense of keeping the roof, chimney stalks, rainwater pipes and drains in good order and condition.

There was no dispute that the property was in need of works, but what was disputed was who was responsible for the cost of that maintenance and whether the owner was required to grant access for works to be carried out. The owner of the lower flat disputed that she was responsible for any of the repair costs, and was not required to grant access.

A Summary Application was raised under the Tenements (Scotland) Act 2004 to allow access and for works to be carried out. After a hearing lasting five days, the sheriff found in favour of our client and ordered access, repair and the cost of works to be split between the owners. That decision was appealed to the Inner House of the Court of Session.

With very little case law on the Tenements (Scotland) Act 2004, the Court of Session was asked to determine a number of issues relating “scheme property” – property which was the responsibility of the owners to maintain and repair.

There were further questions in relation to the interpretation of the Summary Application Rules:

Time Bar under the Summary Application Rules:
The dispute had been on-going for some time prior to the court action commencing. A letter had been sent to the neighbour, attempting to resolve the matter amicably and without the need for court action. With no response, court papers were served some four months after that letter was sent. The neighbour contended that the action was time-barred, and should not have been allowed to proceed. Rule 2.6 of the Summary Application Rules states that “this rule applies to a summary application where the time within which the application, being an appeal under statute or an application in the nature of an appeal, may be made is not otherwise prescribed.” The rule requires an application to “be lodged with the sheriff clerk within 21 days after the date on which the decision, order, scheme, determination, refusal or other act complained of was intimated to the pursuer.”

The neighbour argued that the application required to have been commenced within 21 days of the letter being sent to her and the court action was, therefore, time-barred. We successfully argued against this position, and the Court held that the Rule only applies to a Summary Application which is “an appeal under statute” or “an application in the nature of an appeal” – neither of which applied here. Furthermore, the refusal to cooperate was a continuing refusal and it would not be possible, to pick a particular moment and say that our client had to go to court within twenty-one days.

Is a Sheriff required to issue a note following an interlocutor:
The judges in the Court of Session confirmed that “the provision of a note of decisions made in incidental applications is within the discretion of the Sheriff, and a refusal to do so raises no issue of law capable of appeal.”

Application of the Tenement (Scotland) Act 2004:
The titles for the properties provided “That the expense of upholding the roof of the said building and chimney stalks, rainwater pipes and drains, and all other burdens, common or mutual…shall be borne equally between the proprietor of the dwelling house…and the proprietor of the dwelling house forming the upper flat.” The neighbour argued that she was not responsible for maintaining and repairing the roof. The argument was based on the placing of a single comma within the titles to the properties. That argument was rejected by the judges in the Court of Session, who stated that they were not willing to place such a heavy burden on a single comma.

Tenement and Scheme Property:
The purpose of the Tenements (Scotland) Act 2004 is to make provision about the boundaries and parts of tenements,

and to regulate the rights and duties of the owners of properties in tenements. A “Tenement” is defined as buildings containing two or more flats, in separate ownership, and are divided horizontally. The court held in this case that the building was “clearly a tenement” and that the Tenement Management Scheme should apply. “Scheme property” is any part of the tenement that is the common property of two or more of the owners, or any part of the tenement where maintenance is, by virtue of a tenement burden, the responsibility of two or more of the owners, or a number of itemised parts including the roof including any rafter or other structure supporting it. The court accepted that a rule which requires a majority decision on the basis of “one owner one vote” contemplates that there must be more than two owners, otherwise, there would be no method to resolve a “deadlock” situation. In such cases, an application can be made under the 2004 Act.

Provisions of the 2004 Act Concerning Maintenance and Access:
The Act makes clear that the terms of any tenement burden takes precedence over the Scheme. But that does not mean that they are not part of a tenement management scheme. The Act applies even though the burdens provide for the allocation of responsibility for maintenance and repairs.

Repair first, sue later?
Finally, it was argued that the correct route would have been to carry out the repairs and to seek a contribution from the other owners after the repair had been completed. In the event that the other owners fail to pay, an application can then be made. The court rejected this argument and accepted that it was reasonable to raise court action prior to the works being carried out.

Contact our Property Dispute Solicitors Glasgow

To discuss your property dispute with us, you can contact Jackson Boyd today. You are always guaranteed to speak to someone with knowledge and understanding of what you are going through, and someone with experience of dealing with cases just like yours. We will guide you through the property dispute process from beginning to end, helping to ensure that it is as stress-free a process as possible. For a free consultation, please contact us today by calling 01412496903 or contact us online. We look forward to helping you.

David McLeod

David McLeod

Personal Injury Team

“I enjoy the preparation of cases for presentation at proof, but also managing to settle cases for clients without the need to appear in court.”

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