Head 20: 3

Question 1

Since the TMS can sometimes be inadequate…

Answer 1

there is an alternative way to get repairs carried out. This is under s 8, 9 and 10 of the Act

Question 2

The rules under s 8, 9 and 10 are…

Answer 2

Mandatory provisions which are directed at parts of the building which are needed which are so fundamental that they are needed either for shelter or for support.

Question 3

s 8

Answer 3

Owners of any part of a building which provides support or shelter must maintain that part, and can be made to do so by any other owner.

For such crucial repairs, therefore, it is not necessary that a majority agree. Assuming the part being repaired is scheme property (or property to be maintained under the titles or the DMS), the owner can recover a share of the cost from the other owners (s 10).

Question 4

What if you are the owner of parts which provide shelter or support but don’t carry out repairs?

Answer 4

If you do nothing and then support/shelter fails and the properties are injured then you can be liable in delict (I think it states this under s 8)

Question 5

Thomson v St Cuthbert’s Cooperative Association Ltd 1958

Answer 5

Example of failure to carry out repairs causing injury action under the law of NEGLIGENCE

Question 6

Kennedy v Glenbelle Ltd 1996

Answer 6

Example of failure to carry out repairs causing injury action under the law of NUISANCE

Question 7

Section 9 2004 Act

Answer 7

Prohibitive section which states that no owner or occupier may endanger (i) support or shelter or (ii) natural light.

Question 8

What are statutory repairs notices?

Answer 8

Various statutes empower local authorities to require that maintenance and repairs be carried out (i.e. they can serve a notice on the building requiring the owners to carry out repairs), failing which the authority can effect the repair itself and recover the cost. See in particular:

⁃ defective building notices and dangerous building notices: Building (Scotland) Act 2003 ss 28-30
⁃ work notices: Housing (Scotland) Act 2006 s 30
⁃ maintenance orders and maintenance plans: Housing (Scotland) Act 2006 ss 42-51

Question 9

s 17 2004 Act

Answer 9

Owners are allowed reasonable access for repairs etc over the property of other owners

Question 10

s 18 2004 Act

Answer 10

Flats must be insured for reinstatement value against the prescribed risks.

There is a right to enforce the insurance obligation against your neighbour and a right to ask your neighbour to see their insurance policy [not sure what authority]??

Question 11

Is a common policy of insurance required under the 2004 Act?

Answer 11

A common policy of insurance is required if (i) a majority of owners so decide under TMS r 3.1(e) or (ii) real burdens so provide. A common policy is cheaper. Otherwise separate policies may be used.

Question 12

What happens to ownership if a tenement is demolished?

Answer 12

s 20 - ownership is unaffected

Question 13

What happens in relation to costs if a tenement is demolished?

Answer 13

If a tenement is demolished, the cost is shared equally (or by floor area if largest flat is more than x 1.5 the size of the smallest) (s 21)

Question 14

Can a destroyed tenement be rebuilt?

Answer 14

Except where there is an agreement or obligation (typically by real burden) to rebuild, no rebuilding is allowed and any one owner can insist on the sale of the site, with the proceeds being divided equally (or by floor area) (s 22)

Question 15

Can abandoned tenements be sold?

Answer 15

Yes - under s 23.