In June 2024, the Scotland Census 2022 reported that almost one third of households in Scotland were living in tenement buildings. Most tenement buildings are in the centre of our biggest cities, and include classic stone-built tenement dwellings, along with those shiny new developments popping up across Scotland, with many being used as commercial property for high street businesses. But how do we ensure that all tenement buildings in Scotland don’t fall into disrepair and are maintained in good order?
Current State of Repairs
Individual title deeds of the properties within the tenement building should set out who owns the main parts of the tenement building, such as the roof, ground, and the walls, and allocate responsibility for maintaining and repairing those parts. However, CityLets News reported in 2022 that over 50% of pre-1919 tenements face disrepair to critical elements, including the roof, ground, and walls. There are several reasons for this:-owners within tenement buildings struggle to understand their title deeds-many deeds use outdated or vague language, and may not accurately reflect the current ownership or layout of the building; often individual title deeds within a tenement building contradict each other and may have gaps on how responsibility for repairs is apportioned not always adding up to 100%. This can lead to lack of co-operation between owners to undertake any maintenance in the building at all!
To deal with this, the Tenement Management Scheme (“TMS”) was introduced as a vital framework for managing common parts in tenement buildings and allocating the responsibility for the repairs, where the title deeds are inconsistent, unclear or contain gaps.
Royal London Mutual Society Limited v Chisholm Hunter2023
The struggle to understand title deeds and the maintenance and repair obligations was at the centre of a row involving Europe’s oldest covered shopping centre. The case Royal London Mutual Insurance Society Limited (“Royal London”) v Chisholm Hunter Limited & Others (2023) involved a dispute over the validity and enforceability of title conditions for the maintenance and repair of communal areas within Argyll Chambers, Glasgow-a tenement building with seven floors and a basement.
However, the layout of Argyll Chambers had changed and been adapted, over the years and Royal London argued that the title conditions created in 1954, were ambiguous and uncertain which was fatal in trying to calculate liability for repairs among the units in Argyll Chambers.
Therefore, the responsibility for repairs should not be assessed under the title deeds but should be regulated under the provisions of the TMS. The title deeds for the Argyll Chambers, calculated each owner’s liability based on the rateable value of each individual property as a proportion of the total assessed rental value of Argyll Chambers. Royal London maintained that due to the changes in the building and layout, the properties were unidentifiable from the title deeds along with the division of repair liability. Royal London’s asserted that this made the management and maintenance of the building impossible.
The Lands Tribunal for Scotland and the Court of Session both disagreed and found that the title conditions were sufficiently clear and enforceable, affirming legal standards required for the maintenance obligations. While the TMS is crucial for the maintenance of tenement buildings, the TMS will only apply where there are differences and gaps in titles posing obstacles. The TMS will not apply where the title deeds are clear and consistent; owners cannot simply opt to use the TMS if it results in a more favourable payment obligation than in the title deeds!
Scottish Law Commission Project on Tenement law: Compulsory Owners’ Associations
In April 2024, the Scottish Law Commission published a Discussion Paper which consulted on whether the TMS should be amended to establish compulsory owners’ associations with the key purpose to manage repair and maintenance of the tenement buildings and with a requirement for tenements to be subject to a building condition inspection every five years. The Owners Association Scheme would replace the TMS with new rules for the maintenance and management of the tenement building. The intention being that this may be one way to tackle the lack of maintenance and improvement works to tenement buildings leaving many in disrepair. The responses from the consultation are being analysed, and we await the outcome and recommendations.
How Thorntons can help?
A tenement building can be an attractive investment. But with many tenement buildings occupying some of the most popular high streets and with many more being built, it is crucial for owners to understand how to keep tenement buildings maintained in good repair and what to do if anything goes wrong. The first port of call would be to check the title deeds and see what provisions are set out in relation to repairing and maintenance obligations. If the other title deeds in the building don’t match or the maintenance liability does not add to 100% then the TMS may apply.
Should you need any advice on title deeds or the TMS, please contact our expert team of Commercial Property solicitors on 03330 430350.
