Head 20:2 Flashcards
(12 cards)
What is the key principle in relation to management and maintenance?
The key here is that the maintenance scheme is not tied to ownership - it cuts across ownership. Also the TMS is just a set of default rules.
What management scheme applies to all tenements?
Tenement Management Scheme (‘TMS’), set out in the sch 1 to the Act. This applies to all tenements unless the tenement has opted in to the (optional) Development Management Scheme (DMS).
Rule 1: What does the TMS apply to?
Rule 1: the TMS applies to “scheme property”
What is “scheme property”?
Scheme property is:
⁃ any part of the tenement that is common property of 2 or more owners (r.1.2(a))
⁃ any part of the tenement (not falling under para (a) above) the maintenance of which is the responsibility of more than one owner by virtue of a real burden (r.1.2(b))
⁃ Insofar as not being already covered by para (a) or (b), r.1.2(c) provides a list of scheme property including: the ground on which it is build, its foundations, its external walls, its roof, any loading bearing wall etc.
Exceptions to scheme property?
Under r.1.3 there are a number of exceptions to scheme property which include: doors, windows, skylights, vents, chimney stacks, chimney flue’s.
Rule 2: What are scheme decisions?
Scheme decisions are made by simple majority although all owners must be consulted.
How are scheme decisions made?
A decision can be taken with or without a meeting. Once taken the decision must be notified to everyone.
It is frozen for 28 days after last notification to allow a challenge by a disaffected owner in the sheriff court (s 5) (but urgent work can go ahead at once).
Assuming no challenge, a decision binds all the owners and their successors and can be founded on by any owner (r 8).
Rule 3: what matters can a scheme decision be taken on?
Rule 3 lists the matters on which a scheme decision can be taken. The main topics are found in r 3.1 and r 3.2 and include decisions to:
⁃ Carry out maintenance
⁃ To arrange for inspection of scheme property to determine whether maintenance is necessary
⁃ To appoint someone to manage the tenement
⁃ To dismiss a manager
⁃ To delegate to a manger powers e.g. to carry out maintenance etc
⁃ To have a common insurance policy
⁃ To install a system enabling entry to the tenement
Rule 4: who pays?
Rule 4 imposes liability for scheme costs ie costs arising out of scheme decisions plus certain other costs - listed in rule 4.1.
In general costs are shared equally. (BUT SEE MAINTENANCE COSTS)
Who pays in relation to maintenance costs?
Under rule 4.2:
⁃ if the property being maintained is owned in common by the owners of two or more flats, liability is by SHARE OF OWNERSHIP; and
⁃ if the property is not owned in common, and the floor area of the largest flat is more than x 1.5 that of the smallest, liability is by FLOOR AREA. If the floor area of the largest flat is not more than x 1.5 the area of the smallest then liability is shared equally among the flats.
What happens if someone can’t pay?
1) Local authorities are empowered to contribute an owner’s missing share if that owner cannot pay or has disappeared: Housing (Scotland) Act 2006 s 50
2) The owners can also make a scheme decision to excuse someone paying.
What happens in emergencies?
If work needs to be carried out in an emergency (and hence before a scheme decision can be taken), any owner can instruct it and recover the costs from the others as if there had been a scheme decision (r 7). The definition of an emergency is narrow. It essentially means that a repair is so urgent that it can’t wait for a scheme decision. (Since scheme decisions are so easy under the TMS it would have to be something pretty serious for this to apply).
