Head 20: 1 Flashcards
Default rules of tenement ownership (19 cards)
What is meant by a tenement?
Tenement includes modern blocks of flats and conversions (i.e. houses divided into flats).
Tenement law is found in the…
Tenements (S) Act 2004
The rules of ownership in the Tenements (S) Act 2004 are…
Simply default rules - they only apply insofar as the title deeds don’t provide otherwise.
What is the starting point with tenement law?
That each person owns his flat.
s 2 2004 Act.
Special rules for the top and bottom flats.
s 2(3)
“The top flat extends to and includes the roof over that flat.” - s 2(3)
s 2(7)
“Where the roof of the tenement building slopes, a sector which includes the roof (or any part of it) shall also include the airspace above the slope of the roof (or part) up to the level of the highest point of the roof.” - s 2(7)
[So if there is a slanted roof then the owner of the flat also includes the airspace outside the roof up to the highest point.]
s 2(4)
“The bottom flat extends to and includes the solum under that flat”
The solum is defined in s 29 as - “the ground on which a building is erected”. This is the ground under the tenement building.
s 2(6)
“Where a sector includes the solum (or any part of it) the sector shall also include, subject to subsection (7) below, the airspace above the tenement building and directly over the solum (or part).”
Important point. So the owner of the ground floor flat owns down to the center of the earth and all the space above the tenement building.
What is a sector?
s 29(1) - any three dimensional space.
The basic rule in relation to boundaries is…
the boundary is the mid-point (‘median of the structure that separates them’ (s 2(1))
s 2(2)
A thing which wholly or mainly serves one sector (eg a door) is wholly part of that sector
External walls are owned by…
exclusively by the sector in question (s 2(1))
If there are any questions on boundaries etc look to section…
2!
s 3(4)
Each flat has as a pertinent any part that serves it; and if more than one flat is served, the part is owned as common property.
s 3(1)(2)
Even if you own the ground floor flat then you have a right in common property of the close including the staircase.
But under s 3(2) if a close or a lift does not afford a means of access to a flat then there shall not attach to that flat, as a pertinent, a right of common property in the close or, as the case may be, lift (this means that ground floor flats don’t own lifts and ‘main door flats’ don’t own the close.)
What are the rules for the garden?
Under s 3(3) the default rule is that the lowest flats in the tenement own the garden and they own it in sections - they own the bit nearest their flat. However, it is usual that back gardens will be varied in title deeds to be common property.
⁃ [NB not related to tenements but there is a servitude convening hanging clothes in a garden!]
Who owns things like the flue, rhone, pipes, cables??
The Act has a very general provision in s 3(4) which states that if the thing in question only serves one flat then it belongs to that flat. If it serves two or more flats then it belongs to all of those flats as common property.
⁃ [So in relation to pipes, the parts of a pipe which only serve one flat will only be owned by the owners of that flat, but once this part joins the main pipe at a juncture, the pipe from there onwards will be common property.]
What is the size of pro-indiviso shares?
Under s 3(5) the size of pro indiviso shares is normally equal except with chimney stacks where the ratio is worked out by the number of flues you have.
