Van McKellar | Partner

Open Up in the Name of the Law!

Scots law about tenement disputes was largely codified in 2004 in an Act of the Scottish Parliament; the Tenements (Scotland) Act.

But almost a decade and a half since the Act’s implementation, reported cases interpreting the Act are few and difficulties about the Act’s practical implementation are still encountered.

We successfully argued the leading reported case on the Act in 2016 and the court’s decision gave our client the necessary authority to undertake repairs to the tenement building to stop the problems her flat was encountering.  In that case the court’s authority was recognised and the court’s order was complied with.  But what happens if that doesn’t happen?

That was a problem we encountered recently – an application we had made for a client was not opposed by the neighbour so the court ordered the neighbour to allow our client’ plumber to have access to fix a leak affecting our client’s lower flat.  But to enforce that order our client needed entry to the neighbour’s flat and that was not being given.  To get entry court officers made clear that the court’s specific authority allowing them access was required.   Could we get that?

We applied to the court for a further order and that being to have the court’s specific authority to ‘open shut and lockfast places.’    (Or put another way the power to allow Sheriff Officers to say ‘open up in the name of the law’ and to force entry).   But while it’s long established that the court has that power in given cases, the question posed of us by the court in this case was whether that power is one open to the court under the 2004 Act.   While our application was not opposed by the neighbour we had to address the court on this specific issue as the court considered the Act silent on the issue.

Principally by reference to the Scottish Law Commission’s Report which led to the Act being enacted, we were able to persuade the court that the order sought be granted.  The Report anticipated situations where neighbouring properties would not co-operate and said that the draft legislation was prepared on the basis that the court was to be given a general discretion to make such orders as may be necessary to deal with the particular problems encountered by a flat owner and further that the court could limit any orders by applying such conditions as it saw fit.   In our case we were able to satisfy the court that, in the circumstances of our client’s case as flat owner, and as access would be taken by court officers and for a limited and specific purpose (allowing a plumber to access the suspected source of the leak) the authority to open shut and lockfast places should be granted.  That in turn was enforced; Sheriff Officers and their locksmith forced entry to the neighbour’s flat and the client’s plumber was then able to find and fix the leak, so stopping the flooding that the client had experienced.

The court’s decision in this case is not binding on other judges but we would expect it will be followed; and that Act does indeed require neighbours to open up in the name of the law!

Van McKellar

Van McKellar

Dispute Resolution Team

“I see my role as a problem solver – seeking to understand the factual basis of my clients’ disputes and applying a legal and commercial analysis in seeking to resolve them, whether by negotiation or by means of litigation or some other alternative means of dispute resolution.”

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