Tenement building repairs are inevitable and taking quick action could lessen the damage and cost. However, dealing with communal repairs can be stressful, especially when owners are absent or in dispute or refuse to pay their share.
Ideally, owners will be paying into a fund, often referred to as a building reserve or sinking fund. This isn’t always the case, but even paying into a personal savings account can help greatly when it comes to budgeting and saving for communal repairs.
So, where do you start when there is resistance to pay for an essential repair?
Know your neighbours
Knowing who your neighbours and fellow co-owners are and how to contact them is very important. This can not only help with keeping in touch, but with getting agreement for repairs and payment commitment.
Occasionally, it can be difficult to trace absent owners, however, there are ways you can do this, including using the Land Register to obtain the legal owners name via the title deed (a small fee applies) and checking the Landlord Register if the property is rented. Remember that under the Repairing Standard and other legislation, such as Houses in Multiple Occupation, landlords are obligated to pay their share for the upkeep of communal areas and communal repairs.
Duty to maintain
Every owner has a duty to maintain the parts of the tenement that provide support and shelter. This includes, but is not limited to, leaking roofs. The duty to maintain can be enforced by an affected owner, for example the owner of a top floor flat suffering with water ingress from a leaking roof.
When a support and shelter repair is required, but there is resistance to paying for it, do inform the co-owners, preferably in writing, to remind them of their legal Duty to Maintain. If this doesn’t work, you can approach your local council and ask them for help, for example by serving a Work Order Notice. It’s worth bearing in mind, that whilst the Duty to Maintain is a very powerful legal protection for the building, you may need legal help to enforce it.
Local council
Your local council may be able to offer a missing shares scheme and pay the share of the owner or owners who cannot or will not contribute. Not all councils have this facility, but it is worth exploring before you consider either paying someone’s share on their behalf or splitting the missing amount between the other co-owners.
If you have followed the correct procedures for organising a repair, you have identified who the owners are, have done your best to negotiate with no success, and have had to proceed with and pay for a repair, your next step will be to look at your legal options.
Legal options
Considering legal options when it comes to communal repairs is not a decision to be taken lightly. There is the fear of causing ill will amongst owners, as well as the lack of professional knowledge on the options available. Speaking to someone impartial can help bring clarity to matters and the new style mediation-based approach may help to restore relations amongst owners. Community and private mediation options are available and promoting discussion can pave the way to a positive outcome.
In some cases, this isn’t possible and taking legal action is the only viable option. There are two pathways to consider for repairs under the value of £5000.
The first is placing a Notice of Potential Liability on the legal owner’s title deed, meaning that you will receive the money when they come to sell their property. A solicitor can help you do this via Registers of Scotland for a fee. This method is particularly useful if there is a sale in progress or you are aware that the owner is looking to sell soon.
The second option is to use the Simple Procedure claims action at the Sheriff Court to claim what is owed to you. This process has been designed to help people who do not have legal representation and it is informal. Upon completion of a claims form and paying the requisite fee, the application will be considered, and a timeframe given for the respondent to get in touch. If the matter can be successfully negotiated and concluded, the case will be closed. If that does not happen, then there may be a hearing with a Sheriff’s ruling given that both parties must adhere to.
For more information or advice, please contact us.
