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Tenements (Scotland) Act 2004

Status:

This is the original version (as it was originally enacted).

Boundaries and pertinents

1Determination of boundaries and pertinents

(1)Except in so far as any different boundaries or pertinents are constituted by virtue of the title to the tenement, or any enactment, the boundaries and pertinents of sectors of a tenement shall be determined in accordance with sections 2 and 3 of this Act.

(2)In this Act, “title to the tenement” means—

(a)any conveyance, or reservation, of property which affects—

(i)the tenement; or

(ii)any sector in the tenement; and

(b)where an interest in—

(i)the tenement; or

(ii)any sector in the tenement,

has been registered in the Land Register of Scotland, the title sheet of that interest.

2Tenement boundaries

(1)Subject to subsections (3) to (7) below, the boundary between any two contiguous sectors is the median of the structure that separates them; and a sector—

(a)extends in any direction to such a boundary; or

(b)if it does not first meet such a boundary–

(i)extends to and includes the solum or any structure which is an outer surface of the tenement building; or

(ii)extends to the boundary that separates the sector from a contiguous building which is not part of the tenement building.

(2)For the purposes of subsection (1) above, where the structure separating two contiguous sectors is or includes something (as for example, but without prejudice to the generality of this subsection, a door or window) which wholly or mainly serves only one of those sectors, the thing is in its entire thickness part of that sector.

(3)A top flat extends to and includes the roof over that flat.

(4)A bottom flat extends to and includes the solum under that flat.

(5)A close extends to and includes the roof over, and the solum under, the close.

(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).

(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.

3Pertinents

(1)Subject to subsection (2) below, there shall attach to each of the flats, as a pertinent, a right of common property in (and in the whole of) the following parts of a tenement—

(a)a close;

(b)a lift by means of which access can be obtained to more than one of the flats.

(2)If a close or 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.

(3)Any land (other than the solum of the tenement building) pertaining to a tenement shall attach as a pertinent to the bottom flat most nearly adjacent to the land (or part of the land); but this subsection shall not apply to any part which constitutes a path, outside stair or other way affording access to any sector other than that flat.

(4)If a tenement includes any part (such as, for example, a path, outside stair, fire escape, rhone, pipe, flue, conduit, cable, tank or chimney stack) that does not fall within subsection (1) or (3) above and that part—

(a)wholly serves one flat, then it shall attach as a pertinent to that flat;

(b)serves two or more flats, then there shall attach to each of the flats served, as a pertinent, a right of common property in (and in the whole of) the part.

(5)For the purposes of this section, references to rights of common property being attached to flats as pertinents are references to there attaching to each flat equal rights of common property; except that where the common property is a chimney stack the share allocated to a flat shall be determined in direct accordance with the ratio which the number of flues serving it in the stack bears to the total number of flues in the stack.

Tenement Management Scheme

4Application of the Tenement Management Scheme

(1)The Tenement Management Scheme (referred to in this section as “the Scheme”), which is set out in schedule 1 to this Act, shall apply in relation to a tenement to the extent provided by the following provisions of this section.

(2)The Scheme shall not apply in any period during which the development management scheme applies to the tenement by virtue of section 71 of the Title Conditions (Scotland) Act 2003 (asp 9).

(3)The provisions of rule 1 of the Scheme shall apply, so far as relevant, for the purpose of interpreting any other provision of the Scheme which applies to the tenement.

(4)Rule 2 of the Scheme shall apply unless—

(a)a tenement burden provides procedures for the making of decisions by the owners; and

(b)the same such procedures apply as respects each flat.

(5)The provisions of rule 3 of the Scheme shall apply to the extent that there is no tenement burden enabling the owners to make scheme decisions on any matter on which a scheme decision may be made by them under that rule.

(6)Rule 4 of the Scheme shall apply in relation to any scheme costs incurred in relation to any part of the tenement unless a tenement burden provides that the entire liability for those scheme costs (in so far as liability for those costs is not to be met by someone other than an owner) is to be met by one or more of the owners.

(7)The provisions of rule 5 of the Scheme shall apply to the extent that there is no tenement burden making provision as to the liability of the owners in the circumstances covered by the provisions of that rule.

(8)The provisions of rule 6 of the Scheme shall apply to the extent that there is no tenement burden making provision as to the effect of any procedural irregularity in the making of a scheme decision on—

(a)the validity of the decision; or

(b)the liability of any owner affected by the decision.

(9)Rule 7 of the Scheme shall apply to the extent that there is no tenement burden making provision—

(a)for an owner to instruct or carry out any emergency work as defined in that rule; or

(b)as to the liability of the owners for the cost of any emergency work as so defined.

(10)The provisions of—

(a)rule 8; and

(b)subject to subsection (11) below, rule 9,

of the Scheme shall apply, so far as relevant, for the purpose of supplementing any other provision of the Scheme which applies to the tenement.

(11)The provisions of rule 9 are subject to any different provision in any tenement burden.

(12)The Scottish Ministers may by order substitute for the sums for the time being specified in rule 3.3 of the Scheme such other sums as appear to them to be justified by a change in the value of money appearing to them to have occurred since the last occasion on which the sums were fixed.

(13)Where some but not all of the provisions of the Scheme apply, references in the Scheme to “the scheme” shall be read as references only to those provisions of the Scheme which apply.

(14)In this section, “scheme costs” and “scheme decision” have the same meanings as they have in the Scheme.

Resolution of disputes

5Application to sheriff for annulment of certain decisions

(1)Where a decision is made by the owners in accordance with the management scheme which applies as respects the tenement (except where that management scheme is the development management scheme), an owner mentioned in subsection (2) below may, by summary application, apply to the sheriff for an order annulling the decision.

(2)That owner is—

(a)any owner who, at the time the decision referred to in subsection (1) above was made, was not in favour of the decision; or

(b)any new owner, that is to say, any person who was not an owner at that time but who has since become an owner.

(3)For the purposes of any such application, the defender shall be all the other owners.

(4)An application under subsection (1) above shall be made—

(a)in a case where the decision was made at a meeting attended by the owner making the application, not later than 28 days after the date of that meeting; or

(b)in any other case, not later than 28 days after the date on which notice of the making of the decision was given to the owner for the time being of the flat in question.

(5)The sheriff may, if satisfied that the decision—

(a)is not in the best interests of all (or both) the owners taken as a group; or

(b)is unfairly prejudicial to one or more of the owners,

make an order annulling the decision (in whole or in part).

(6)Where such an application is made as respects a decision to carry out maintenance, improvements or alterations, the sheriff shall, in considering whether to make an order under subsection (5) above, have regard to—

(a)the age of the property which is to be maintained, improved or, as the case may be, altered;

(b)its condition;

(c)the likely cost of any such maintenance, improvements or alterations; and

(d)the reasonableness of that cost.

(7)Where the sheriff makes an order under subsection (5) above annulling a decision (in whole or in part), the sheriff may make such other, consequential, order as the sheriff thinks fit (as, for example, an order as respects the liability of owners for any costs already incurred).

(8)A party may not later than fourteen days after the date of—

(a)an order under subsection (5) above; or

(b)an interlocutor dismissing such an application,

appeal to the Court of Session on a point of law.

(9)A decision of the Court of Session on an appeal under subsection (8) above shall be final.

(10)Where an owner is entitled to make an application under subsection (1) above in relation to any decision, no step shall be taken to implement that decision unless—

(a)the period specified in subsection (4) above within which such an application is to be made has expired without such an application having been made and notified to the owners; or

(b)where such an application has been so made and notified—

(i)the application has been disposed of and either the period specified in subsection (8) above within which an appeal against the sheriff’s decision may be made has expired without such an appeal having been made or such an appeal has been made and disposed of; or

(ii)the application has been abandoned.

(11)Subsection (10) above does not apply to a decision relating to work which requires to be carried out urgently.

6Application to sheriff for order resolving certain disputes

(1)Any owner may by summary application apply to the sheriff for an order relating to any matter concerning the operation of—

(a)the management scheme which applies as respects the tenement (except where that management scheme is the development management scheme); or

(b)any provision of this Act in its application as respects the tenement.

(2)Where an application is made under subsection (1) above the sheriff may, subject to such conditions (if any) as the sheriff thinks fit—

(a)grant the order craved; or

(b)make such other order under this section as the sheriff considers necessary or expedient.

(3)A party may not later than fourteen days after the date of—

(a)an order under subsection (2) above; or

(b)an interlocutor dismissing such an application,

appeal to the Court of Session on a point of law.

(4)A decision of the Court of Session on an appeal under subsection (3) above shall be final.

Support and shelter

7Abolition as respects tenements of common law rules of common interest

Any rule of law relating to common interest shall, to the extent that it applies as respects a tenement, cease to have effect; but nothing in this section shall affect the operation of any such rule of law in its application to a question affecting both a tenement and—

(a)some other building or former building (whether or not a tenement); or

(b)any land not pertaining to the tenement.

8Duty to maintain so as to provide support and shelter etc.

(1)Subject to subsection (2) below, the owner of any part of a tenement building, being a part that provides, or is intended to provide, support or shelter to any other part, shall maintain the supporting or sheltering part so as to ensure that it provides support or shelter.

(2)An owner shall not by virtue of subsection (1) above be obliged to maintain any part of a tenement building if it would not be reasonable to do so, having regard to all the circumstances (and including, in particular, the age of the tenement building, its condition and the likely cost of any maintenance).

(3)The duty imposed by subsection (1) above on an owner of a part of a tenement building may be enforced by any other such owner who is, or would be, directly affected by any breach of the duty.

(4)Where two or more persons own any such part of a tenement building as is referred to in subsection (1) above in common, any of them may, without the need for the agreement of the others, do anything that is necessary for the purpose of complying with the duty imposed by that subsection.

9Prohibition on interference with support or shelter etc.

(1)No owner or occupier of any part of a tenement shall be entitled to do anything in relation to that part which would, or would be reasonably likely to, impair to a material extent—

(a)the support or shelter provided to any part of the tenement building; or

(b)the natural light enjoyed by any part of the tenement building.

(2)The prohibition imposed by subsection (1) above on an owner or occupier of a part of a tenement may be enforced by any other such owner who is, or would be, directly affected by any breach of the prohibition.

10Recovery of costs incurred by virtue of section 8

Where—

(a)by virtue of section 8 of this Act an owner carries out maintenance to any part of a tenement; and

(b)the management scheme which applies as respects the tenement provides for the maintenance of that part,

the owner shall be entitled to recover from any other owner any share of the cost of the maintenance for which that other owner would have been liable had the maintenance been carried out by virtue of the management scheme in question.

Repairs: costs and access

11Determination of when an owner’s liability for certain costs arises

(1)An owner is liable for any relevant costs (other than accumulating relevant costs) arising from a scheme decision from the date when the scheme decision to incur those costs is made.

(2)For the purposes of subsection (1) above, a scheme decision is, in relation to an owner, taken to be made on—

(a)where the decision is made at a meeting, the date of the meeting; or

(b)in any other case, the date on which notice of the making of the decision is given to the owner.

(3)An owner is liable for any relevant costs arising from any emergency work from the date on which the work is instructed.

(4)An owner is liable for any relevant costs of the kind mentioned in rule 4.1(d) of the Tenement Management Scheme from the date of any statutory notice requiring the carrying out of the work to which those costs relate.

(5)An owner is liable for any accumulating relevant costs (such as the cost of an insurance premium) on a daily basis.

(6)Except where subsection (1) above applies in relation to the costs, an owner is liable for any relevant costs arising from work instructed by a manager from the date on which the work is instructed.

(7)An owner is liable in accordance with section 10 of this Act for any relevant costs arising from maintenance carried out by virtue of section 8 of this Act from the date on which the maintenance is completed.

(8)An owner is liable for any relevant costs other than those to which subsections (1) to (7) above apply from—

(a)such date; or

(b)the occurrence of such event,

as may be stipulated as the date on, or event in, which the costs become due.

(9)For the purposes of this section and section 12 of this Act, “relevant costs” means, as respects a flat—

(a)the share of any costs for which the owner is liable by virtue of the management scheme which applies as respects the tenement (except where that management scheme is the development management scheme); and

(b)any costs for which the owner is liable by virtue of this Act.

(10)In this section, “emergency work”, “manager” and “scheme decision” have the same meanings as they have in the Tenement Management Scheme.

12Liability of owner and successors for certain costs

(1)Any owner who is liable for any relevant costs shall not, by virtue only of ceasing to be such an owner, cease to be liable for those costs.

(2)Subject to subsection (3) below, where a person becomes an owner (any such person being referred to in this section as a “new owner”), that person shall be severally liable with any former owner of the flat for any relevant costs for which the former owner is liable.

(3)A new owner shall be liable as mentioned in subsection (2) above for relevant costs relating to any maintenance or work (other than local authority work) carried out before the acquisition date only if—

(a)notice of the maintenance or work—

(i)in, or as near as may be in, the form set out in schedule 2 to this Act; and

(ii)containing the information required by the notes for completion set out in that schedule,

(such a notice being referred to in this section and section 13 of this Act as a “notice of potential liability for costs”) was registered in relation to the new owner’s flat at least 14 days before the acquisition date; and

(b)the notice had not expired before the acquisition date.

(4)In subsection (3) above—

  • “acquisition date” means the date on which the new owner acquired right to the flat; and

  • “local authority work” means work carried out by a local authority by virtue of any enactment.

(5)Where a new owner pays any relevant costs for which a former owner of the flat is liable, the new owner may recover the amount so paid from the former owner.

(6)This section applies as respects any relevant costs for which an owner becomes liable on or after the day on which this section comes into force.

13Notice of potential liability for costs: further provision

(1)A notice of potential liability for costs—

(a)may be registered in relation to a flat only on the application of—

(i)the owner of the flat;

(ii)the owner of any other flat in the same tenement; or

(iii)any manager (within the meaning of the Tenement Management Scheme) of the tenement; and

(b)shall not be registered unless it is signed by or on behalf of the applicant.

(2)A notice of potential liability for costs may be registered—

(a)in relation to more than one flat in respect of the same maintenance or work; and

(b)in relation to any one flat, in respect of different maintenance or work.

(3)A notice of potential liability for costs expires at the end of the period of 3 years beginning with the date of its registration, unless the notice is renewed by being registered again before the end of that period.

(4)This section applies to a renewed notice of potential liability for costs as it applies to any other such notice.

(5)The Keeper of the Registers of Scotland shall not be required to investigate or determine whether the information contained in any notice of potential liability for costs submitted for registration is accurate.

(6)The Scottish Ministers may by order amend schedule 2 to this Act.

(7)In section 12 of the Land Registration (Scotland) Act 1979 (c. 33), in subsection (3) (which specifies losses for which there is no entitlement to be indemnified by the Keeper under that section), after paragraph (p) there shall be added—

(q)the loss arises in consequence of an inaccuracy in any information contained in a notice of potential liability for costs registered in pursuance of—

(i)section 10(2A)(a) or 10A(3) of the Title Conditions (Scotland) Act 2003 (asp 9); or

(ii)section 12(3)(a) or 13(3) of the Tenements (Scotland) Act 2004 (asp 11).

14Former owner’s right to recover costs

An owner who is entitled, by virtue of the Tenement Management Scheme or any other provision of this Act, to recover any costs or a share of any costs from any other owner shall not, by virtue only of ceasing to be an owner, cease to be entitled to recover those costs or that share.

15Prescriptive period for costs to which section 12 relates

In Schedule 1 to the Prescription and Limitation (Scotland) Act 1973 (c. 52) (obligations affected by prescriptive periods of five years to which section 6 of that Act applies)—

(a)after paragraph 1(ab) there shall be inserted—

(ac)to any obligation to pay a sum of money by way of costs to which section 12 of the Tenements (Scotland) Act 2004 (asp 11) applies;; and

(b)in paragraph 2(e), for the words “or (ab)“ there shall be substituted “, (ab) or (ac)”.

16Common property: disapplication of common law right of recovery

Any rule of law which enables an owner of common property to recover the cost of necessary maintenance from the other owners of the property shall not apply in relation to any common property in a tenement where the maintenance of that property is provided for in the management scheme which applies as respects the tenement.

17Access for maintenance and other purposes

(1)Where an owner gives reasonable notice to the owner or occupier of any other part of the tenement that access is required to, or through, that part for any of the purposes mentioned in subsection (3) below, the person given notice shall, subject to subsection (5) below, allow access for that purpose.

(2)Without prejudice to subsection (1) above, where the development management scheme applies, notice under that subsection may be given by any owners' association established by the scheme to the owner or occupier of any part of the tenement.

(3)The purposes are—

(a)carrying out maintenance or other work by virtue of the management scheme which applies as respects the tenement;

(b)carrying out maintenance to any part of the tenement owned (whether solely or in common) by the person requiring access;

(c)carrying out an inspection to determine whether it is necessary to carry out maintenance;

(d)determining whether the owner of the part is fulfilling the duty imposed by section 8(1) of this Act;

(e)determining whether the owner or occupier of the part is complying with the prohibition imposed by section 9(1) of this Act;

(f)doing anything which the owner giving notice is entitled to do by virtue of section 19(1) of this Act;

(g)where floor area is relevant for the purposes of determining any liability of owners, measuring floor area; and

(h)where a power of sale order has been granted in relation to the tenement building or its site, doing anything necessary for the purpose of or in connection with any sale in pursuance of the order (other than complying with paragraph 4(3) of schedule 3 to this Act).

(4)Reasonable notice need not be given as mentioned in subsection (1) above where access is required for the purpose specified in subsection (3)(a) above and the maintenance or other work requires to be carried out urgently.

(5)An owner or occupier may refuse to allow—

(a)access under subsection (1) above; or

(b)such access at a particular time,

if, having regard to all the circumstances (and, in particular, whether the requirement for access is reasonable), it is reasonable to refuse access.

(6)Where access is allowed under subsection (1) above for any purpose, such right of access may be exercised by—

(a)the owner who or owners' association which gave notice that access was required; or

(b)such person as the owner or, as the case may be, owners' association may authorise for the purpose (any such person being referred to in this section as an “authorised person”).

(7)Where an authorised person acting in accordance with subsection (6) above is liable by virtue of any enactment or rule of law for damage caused to any part of a tenement, the owner who or owners' association which authorised that person shall be severally liable with the authorised person for the cost of remedying the damage; but an owner or, as the case may be, owners' association making any payment as respects that cost shall have a right of relief against the authorised person.

(8)Where access is allowed under subsection (1) above for any purpose, the owner who or owners' association which gave notice that access was required (referred to as the “accessing owner or association”) shall, so far as reasonably practicable, ensure that the part of the tenement to or through which access is allowed is left substantially in no worse a condition than that which it was in when access was taken.

(9)If the accessing owner or association fails to comply with the duty in subsection (8) above, the owner of the part to or through which access is allowed may—

(a)carry out, or arrange for the carrying out of, such work as is reasonably necessary to restore the part so that it is substantially in no worse a condition than that which it was in when access was taken; and

(b)recover from the accessing owner or association any expenses reasonably incurred in doing so.

Insurance

18Obligation of owner to insure

(1)It shall be the duty of each owner to effect and keep in force a contract of insurance against the prescribed risks for the reinstatement value of that owner’s flat and any part of the tenement building attaching to that flat as a pertinent.

(2)The duty imposed by subsection (1) above may be satisfied, in whole or in part, by way of a common policy of insurance arranged for the entire tenement building.

(3)The Scottish Ministers may by order prescribe risks against which an owner shall require to insure (in this section referred to as the “prescribed risks”).

(4)Where, whether because of the location of the tenement or otherwise, an owner—

(a)having made reasonable efforts to do so, is unable to obtain insurance against a particular prescribed risk; or

(b)would be able to obtain such insurance but only at a cost which is unreasonably high,

the duty imposed by subsection (1) above shall not require an owner to insure against that particular risk.

(5)Any owner may by notice in writing request the owner of any other flat in the tenement to produce evidence of—

(a)the policy in respect of any contract of insurance which the owner of that other flat is required to have or to effect; and

(b)payment of the premium for any such policy,

and not later than 14 days after that notice is given the recipient shall produce to the owner giving the notice the evidence requested.

(6)The duty imposed by subsection (1) above on an owner may be enforced by any other owner.

Installation of service pipes etc.

19Installation of service pipes etc.

(1)Subject to subsections (2) and (3) below and to section 17 of this Act, an owner shall be entitled—

(a)to lead through any part of the tenement such pipe, cable or other equipment; and

(b)to fix to any part of the tenement, and keep there, such equipment,

as is necessary for the provision to that owner’s flat of such service or services as the Scottish Ministers may by regulations prescribe.

(2)The right conferred by subsection (1) above is exercisable only in accordance with such procedure as the Scottish Ministers may by regulations prescribe; and different procedures may be so prescribed in relation to different services.

(3)An owner is not entitled by virtue of subsection (1) above to lead anything through or fix anything to any part which is wholly within another owner’s flat.

(4)This section is without prejudice to any obligation imposed by virtue of any enactment relating to—

(a)planning;

(b)building; or

(c)any service prescribed under subsection (1) above.

Demolition and abandonment of tenement building

20Demolition of tenement building not to affect ownership

(1)The demolition of a tenement building shall not alone effect any change as respects any right of ownership.

(2)In particular, the fact that, as a consequence of demolition of a tenement building, any land pertaining to the building no longer serves, or affords access to, any flat or other sector shall not alone effect any change of ownership of the land as a pertinent.

21Cost of demolishing tenement building

(1)Except where a tenement burden otherwise provides, the cost of demolishing a tenement building shall, subject to subsection (2) below, be shared equally among all (or both) the flats in the tenement, and each owner is liable accordingly.

(2)Where the floor area of the largest (or larger) flat in the tenement is more than one and a half times that of the smallest (or smaller) flat the owner of each flat shall be liable to contribute towards the cost of demolition of the tenement building in the proportion which the floor area of that owner’s flat bears to the total floor area of all (or both) the flats.

(3)An owner is liable under this section for the cost of demolishing a tenement building—

(a)in the case where the owner agrees to the proposal that the tenement building be demolished, from the date of the agreement; or

(b)in any other case, from the date on which the carrying out of the demolition is instructed.

(4)This section applies as respects the demolition of part of a tenement building as it applies as respects the demolition of an entire tenement building but with any reference to a flat in the tenement being construed as a reference to a flat in the part.

(5)In this section references to flats in a tenement include references to flats which were comprehended by the tenement before its demolition.

(6)This section is subject to section 123 of the Housing (Scotland) Act 1987 (c. 26) (which makes provision as respects demolition of buildings in pursuance of local authority demolition orders and recovery of expenses by local authorities etc.).

22Use and disposal of site where tenement building demolished

(1)This section applies where a tenement building is demolished and after the demolition two or more flats which were comprehended by the tenement building before its demolition (any such flat being referred to in this section as a “former flat”) are owned by different persons.

(2)Except in so far as—

(a)the owners of all (or both) the former flats otherwise agree; or

(b)those owners are subject to a requirement (whether imposed by a tenement burden or otherwise) to erect a building on the site or to rebuild the tenement,

no owner may build on, or otherwise develop, the site.

(3)Except where the owners have agreed, or are required, to build on or develop the site as mentioned in paragraphs (a) and (b) of subsection (2) above, any owner of a former flat shall be entitled to apply for power to sell the entire site in accordance with schedule 3.

(4)Except where a tenement burden otherwise provides, the net proceeds of any sale in pursuance of subsection (3) above shall, subject to subsection (5) below, be shared equally among all (or both) the former flats and the owner of each former flat shall be entitled to the share allocated to that flat.

(5)Where—

(a)evidence of the floor area of each of the former flats is readily available; and

(b)the floor area of the largest (or larger) former flat was more than one and a half times that of the smallest (or smaller) former flat,

the net proceeds of any sale shall be shared among (or between) the flats in the proportion which the floor area of each flat bore to the total floor area of all (or both) the flats and the owner of each former flat shall be entitled to the share allocated to that flat.

(6)The prohibition imposed by subsection (2) above on an owner of a former flat may be enforced by any other such owner.

(7)In subsections (4) and (5) above, “net proceeds of any sale” means the proceeds of the sale less any expenses properly incurred in connection with the sale.

(8)In this section references to the site are references to the solum of the tenement building that occupied the site together with the airspace that is directly above the solum and any land pertaining, as a means of access, to the tenement building immediately before its demolition.

23Sale of abandoned tenement building

(1)Where—

(a)because of its poor condition a tenement building has been entirely unoccupied by any owner or person authorised by an owner for a period of more than six months; and

(b)it is unlikely that any such owner or other person will occupy any part of the tenement building,

any owner shall be entitled to apply for power to sell the tenement building in accordance with schedule 3.

(2)Subsections (4) and (5) of section 22 of this Act shall apply as respects a sale in pursuance of subsection (1) above as those subsections apply as respects a sale in pursuance of subsection (3) of that section.

(3)In this section any reference to a tenement building includes a reference to its solum and any land pertaining, as a means of access, to the tenement building.

Liability for certain costs

24Liability to non owner for certain damage costs

(1)Where—

(a)any part of a tenement is damaged as the result of the fault of any person (that person being in this subsection referred to as “A”); and

(b)the management scheme which applies as respects the tenement makes provision for the maintenance of that part,

any owner of a flat in the tenement (that owner being in this subsection referred to as “B”) who is required by virtue of that provision to contribute to any extent to the cost of maintenance of the damaged part but who at the time when the damage was done was not an owner of the part shall be treated, for the purpose of determining whether A is liable to B as respects the cost of maintenance arising from the damage, as having been such an owner at that time.

(2)In this section “fault” means any wrongful act, breach of statutory duty or negligent act or omission which gives rise to liability in damages.

Miscellaneous and general

25Amendments of Title Conditions (Scotland) Act 2003

The Title Conditions (Scotland) Act 2003 (asp 9) shall be amended in accordance with schedule 4.

26Meaning of “tenement”

(1)In this Act, “tenement” means a building or a part of a building which comprises two related flats which, or more than two such flats at least two of which—

(a)are, or are designed to be, in separate ownership; and

(b)are divided from each other horizontally,

and, except where the context otherwise requires, includes the solum and any other land pertaining to that building or, as the case may be, part of the building; and the expression “tenement building” shall be construed accordingly.

(2)In determining whether flats comprised in a building or part of a building are related for the purposes of subsection (1), regard shall be had, among other things, to—

(a)the title to the tenement; and

(b)any tenement burdens,

treating the building or part for that purpose as if it were a tenement.

27Meaning of “management scheme”

References in this Act to the management scheme which applies as respects any tenement are references to—

(a)if the Tenement Management Scheme applies in its entirety as respects the tenement, that Scheme;

(b)if the development management scheme applies as respects the tenement, that scheme; or

(c)in any other case, any tenement burdens relating to maintenance, management or improvement of the tenement together with any provisions of the Tenement Management Scheme which apply as respects the tenement.

28Meaning of “owner”, determination of liability etc.

(1)In this Act, references to “owner” without further qualification are, in relation to any tenement, references to the owner of a flat in the tenement.

(2)Subject to subsection (3) below, in this Act “owner” means, in relation to a flat in a tenement, a person who has right to the flat whether or not that person has completed title; but if, in relation to the flat (or, if the flat is held pro indiviso, any pro indiviso share in it) more than one person comes within that description of owner, then “owner” means such person as has most recently acquired such right.

(3)Where a heritable security has been granted over a flat and the heritable creditor has entered into lawful possession, “owner” means the heritable creditor in possession of the flat.

(4)Subject to subsection (5) below, if two or more persons own a flat in common, any reference in this Act to an owner is a reference to both or, as the case may be, all of them.

(5)Any reference to an owner in sections 5(1) and (2), 6(1), 8(3), 9, 10, 12 to 14, 17(1), (6) and (7), 18(5) and (6), 19, 22, 23 and 24 of, and schedule 3 to, this Act shall be construed as a reference to any person who owns a flat either solely or in common with another.

(6)Subsections (2) to (5) above apply to references in this Act to the owner of a part of a tenement as they apply to references to the owner of a flat, but as if references in them to a flat were to the part of the tenement.

(7)Where two or more persons own a flat in common—

(a)they are severally liable for the performance of any obligation imposed by virtue of this Act on the owner of that flat; and

(b)as between (or among) themselves they are liable in the proportions in which they own the flat.

29Interpretation

(1)In this Act, unless the content otherwise requires—

  • “chimney stack” does not include flue or chimney pot;

  • “close” means a connected passage, stairs and landings within a tenement building which together constitute a common access to two or more of the flats;

  • “demolition” includes destruction and cognate expressions shall be construed accordingly; and demolition may occur on one occasion or over any period of time;

  • “the development management scheme” has the meaning given by section 71(3) of the Title Conditions (Scotland) Act 2003 (asp 9);

  • “door” includes its frame;

  • “flat” includes any premises whether or not—

    (a)

    used or intended to be used for residential purposes; or

    (b)

    on the one floor;

  • “lift” includes its shaft and operating machinery;

  • “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);

  • “owner” shall be construed in accordance with section 28 of this Act;

  • “power of sale order” means an order granted under paragraph 1 of schedule 3 to this Act;

  • “register”, in relation to a notice of potential liability for costs or power of sale order, means register the information contained in the notice or order in the Land Register of Scotland or, as appropriate, record the notice or order in the Register of Sasines, and “registered” and other related expressions shall be construed accordingly;

  • “sector” means—

    (a)

    a flat;

    (b)

    any close or lift; or

    (c)

    any other three dimensional space not comprehended by a flat, close or lift,

    and the tenement building shall be taken to be entirely divided into sectors;

  • “solum” means the ground on which a building is erected;

  • “tenement” shall be construed in accordance with section 26 of this Act;

  • “tenement burden” means, in relation to a tenement, any real burden (within the meaning of the Title Conditions (Scotland) Act 2003 (asp 9)) which affects—

    (a)

    the tenement; or

    (b)

    any sector in the tenement;

  • “Tenement Management Scheme” means the scheme set out in schedule 1 to this Act;

  • “title to the tenement” shall be construed in accordance with section 1(2) of this Act; and

  • “window” includes its frame.

(2)The floor area of a flat is calculated for the purposes of this Act by measuring the total floor area (including the area occupied by any internal wall or other internal dividing structure) within its boundaries; but no account shall be taken of any pertinents or any of the following parts of a flat—

(a)a balcony; and

(b)except where it is used for any purpose other than storage, a loft or basement.

30Giving of notice to owners

(1)Any notice which is to be given to an owner under or in connection with this Act (other than under or in connection with the Tenement Management Scheme) may be given in writing by sending the notice to—

(a)the owner; or

(b)the owner’s agent.

(2)The reference in subsection (1) above to sending a notice is to its being—

(a)posted;

(b)delivered; or

(c)transmitted by electronic means.

(3)Where an owner cannot by reasonable inquiry be identified or found, a notice shall be taken for the purposes of subsection (1)(a) above to be sent to the owner if it is posted or delivered to the owner’s flat addressed to “The Owner” or using some similar expression such as “The Proprietor”.

(4)For the purposes of this Act—

(a)a notice posted shall be taken to be given on the day of posting; and

(b)a notice transmitted by electronic means shall be taken to be given on the day of transmission.

31Ancillary provision

(1)The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes, or in consequence, of this Act.

(2)An order under this section may modify any enactment (including this Act), instrument or document.

32Orders and regulations

(1)Any power of the Scottish Ministers to make orders or regulations under this Act shall be exercisable by statutory instrument.

(2)A statutory instrument containing an order or regulations under this Act (except an order under section 34(2) or, where subsection (3) applies, section 31) shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(3)Where an order under section 31 contains provisions which add to, replace or omit any part of the text of an Act, the order shall not be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, the Parliament.

33Crown application

This Act, except section 18, binds the Crown.

34Short title and commencement

(1)This Act may be cited as the Tenements (Scotland) Act 2004.

(2)This Act (other than this section, section 25 and schedule 4) shall come into force on such day as the Scottish Ministers may by order appoint; and different days may be appointed for different purposes.

(3)Section 25 and schedule 4 shall come into force on the day after Royal Assent.

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