Enforcing repairs yourself

There are a number of options for enforcing repairs that you can take yourself, perhaps with legal help. There are other solutions that can only be implemented by your local Council.

Making other owners join a repairs scheme

The options you can use yourself are:

  • emergency repairs
  • the Duty to Maintain
  • Notice of Potential Liability for Costs
  • the obligations to maintain contained in your Title Deeds

All Councils will be willing to give help and advice but may not have the budget to assist all owners.  Consider taking action yourself first, perhaps with advice from your Council.

Before following the advice on this page, you should have already:

Duty to Maintain

Every owner has a duty to maintain the parts of the tenement that provide support and shelter. This would apply to leaking roofs, rot in structural timbers, leaks around individual’s windows etc.

This duty can be enforced by other affected owners and does not require majority agreement, though this should be sought wherever possible.

This is a very powerful legal protection for your tenement but you may need to seek help to enforce it.

Maintenance must be reasonable – so an individual owner may argue that it is not reasonable to maintain given the dilapidation of the building and the high cost of repair.  If you do not agree, you can ask the Sheriff Court to decide who is right.

 

Legal reference:

Tenements (Scotland) Act 2004 sections 8 and 10.

Enforcing the Duty to Maintain

When an appropriate repair is required:

  • remind owners of their legal duty. If talking to your co-owners has no effect, writing may be more effective.  Adapt the downloadable Duty to Maintain letter to suit your circumstances.
  • if your co-owners don’t respond, ask your Council for help.  They may be able to serve a “Work Notice” or use the “Missing shares” provision.

If your council can’t or won’t help, this is what you do:

Getting help

If you have got as far as sending the bill for a repair but got no response and your Council is unable to help, consider taking legal action. You may wish to discuss this with a solicitor first.

Legal reference:

Tenements (Scotland) Act 2004 sections 8 and 10.

Emergency repairs

As always, check your Title Deeds to see if they make reference to emergencies.  If not, this is what you do.

In the case of emergency work, any owner can instruct work and recover the costs from others. Emergency works are those defined as repairs which:

  • can’t wait for a scheme decision to be made and
  • are required to prevent damage to your building
  • are in the interests of health and safety

If you live in a building where it is easy to contact other owners, it should be possible to go through proper procedures to get majority agreement.  In this case, the definition of what is an emergency will be more strictly drawn in terms of “life and limb”. 

Where it is very hard and time consuming to contact your co-owners, the definition of emergency repairs could include works required to prevent damage to the building.

After you have carried out the emergency work, you should write to other owners and explain why you took emergency action and other details about the repair  when sending the bill.

Legal reference:

Tenements (Scotland) Act 2004 Tenement Management Scheme Rule 7.

Notice of Potential Liability

Owners are responsible for paying for repairs from the time a properly agreed decision to go ahead with work is reached.   However, if an owner sells and moves, it may be difficult to contact them to get them to pay for their share of repair costs.

You can overcome this problem by serving a “Notice of Potential Liability for Repairs”.  This notice makes the selling owner and the new owner jointly responsible for the repair costs. Any owner in the same building, or your property manager, can serve this notice.

You need to serve this Notice through Registers of Scotland.  The cost of registering the notice is £60 per flat and needs to be lodged at least 14 days before the sale takes place. The notice lasts for 3 years but can be renewed. It can only be served by  another owner in the same building or the property manager. You may need to get legal help to lodge a notice like this as the accompanying registration documents are complicated.

If you are working well with existing owners, you are advised to discuss the use of this safeguard with them first.

Some property managers also use this notice as a way of enforcing repairs as it means costs can be recovered on sale of the flat.

Legal Reference

s13 Tenements (Scotland) Act 2004

Help from your Council to enforce repairs

Your Council has a number of powers it can use to enforce repairs. These can include compulsory repairs and paying "missing shares".  They don’t always have the resources to follow up however. This can stop a Council from taking the action both you and they would want. 

You should not let this stop you approaching your Council for help as staff can be a useful source of advice and can help mediate a problem.

Your Council also has powers to recover costs that are not available to individuals.