Taking legal action

Your – and your neighbours – responsibilities for carrying out maintenance are clear, thanks to the Tenements Scotland Act 2004. These responsibilities can be enforced through the Sherriff Court.

The Duty to Maintain

There is the “duty to maintain” any part of the tenement that provides support or shelter under s8. This duty can be enforced by any owner who is directly affected and co-owners do not need to wait to get others owners to agree before they act.

Six maintenance tasks every owner HAS to pay a share of:

  • Cleaning
  • Painting
  • Gardening
  • Routine work
  • Repairs and

‘Incidental improvements’ such as installing a new street door, controlled entry or insulation.

Unless your title deeds say otherwise, maintenance requires only a majority of owners to agree. The minority of owners who disagree are bound by the majority vote.

Isn’t legal action costly?

Yes – legal action is costly, especially for the loser – so it is better to avoid it if you can – but not at the expense of bigger repair bills.

If you win your case, you can ask for the other side to pay all legal costs, your loss of wages in attending the court and the cost of enforcing any order made by the court.

For smaller repairs, when you are owed under £3,000, you can use the Small Claims Court. Procedures are easier to manage here and legal representation is not necessary.

Increase your chances of success:

  • Check your grounds – the Duty to Maintain (s8 of the Tenements Act 2004); what the Tenements Act says about procedures; how the Tenements Act defines maintenance.
  • Gather proof: photographs, survey reports, evidence of letters sent and procedures followed, repair bills.
  • Make it clear you are serious. Get a solicitor or debt collections agency to send letters on your behalf. If you say you are going to take a specific course of action, show you are serious and do it.

Getting your money

In many circumstances, you can “arrest” (seize) your debtor’s income to pay your costs. This includes rental income. Consider using a solicitor or debt collector to help you get your costs paid.

Where does it say I have to…?

Your Title Deeds (and your Deeds of Condition) contain the key rules about how your tenement should be run, what are common repairs and how much each owner should pay for common repairs.

If you don’t have a copy of your title deeds, you can get them from Registers Of Scotland – a copy will cost around £15.

If there are gaps in your title deeds, or what your title deeds say are unworkable, and there are problems in working out what is common property, how much each owner should pay or how decisions should be made, then you can use the relevant parts of the Tenement Management Scheme introduced by The Tenements Scotland Act 2004

How can the council force us to maintain our tenement?

A council can serve orders and notices which may then be enforced to require you to repair and maintain your house to a reasonable standard. You will be charged for work carried out and an admin fee will be added. Where you have been given grant to repair your building you will always be required to produce a maintenance plan. The Council may ask for proof that you are carrying out the plan. If there is a continual lack of action the council may require you to repay your grant, with interest.

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