Deciding on Tenement Repairs: DH v SI

Document Cited authorities (2) Cited in Related
DOI10.3366/elr.2022.0767
Author
Pages262-268
Date01 May 2022
Published date01 May 2022

Where liability for repairs to a tenement is set out in title deeds, can a majority vote by the flat owners be effective to override these provisions? This was the question posed in DH v SI,1 decided at Falkirk Sheriff Court. The case concerned repairs to the roof of the building where the titles specified equal liability for its costs. Despite this, the owners voted for the top floor flats to have sole liability. The case makes clear that such a vote cannot be effective to preclude obligations imposed by the titles, and underlines the necessity of compliance with statutory requirements for decision-making. This article considers the case and reflects on possible future reforms.

The Tenements (Scotland) Act 2004 codified much of the common law of the tenement,2 but a substantial change introduced was the separation of liability for maintenance from ownership for several important parts of the building.3 The Tenement Management Scheme (TMS), found in Schedule 1 to the Act, provides a framework whereby identified parts (known as “scheme property”) are subject to majority decision-making by owners and normally equally shared liabilities (“scheme costs”).4 These parts include the roof, load-bearing walls, and any part of the building which is co-owned.5

Nevertheless, respect was maintained for the rules within titles. Section 4 of the 2004 Act mandates that the TMS will apply only to the extent that there is no real burden regulating how maintenance decisions are to be made, or how their costs are to be attributed. If there is such provision, it takes precedence. In practice, real burdens are unlikely to set out a comprehensive management scheme, meaning they must be read in conjunction with the TMS to ascertain the rights and obligations of the flat owners in full.6 This is what was required of the Sheriff in DH v SI.

The case concerned a dispute between two owners (DH and SI) of top floor flats in a tenement of eight flats in Falkirk, one seeking payment from the other for roof repairs. The titles provided that the cost of maintenance of the tenement roof would fall to be divided in equal one-eighth shares amongst the owners of the flats.7

Difficulties arose when DH, the claimant, attempted to organise a meeting of the owners to discuss which repairs were required to the roof. Too few flat owners attended to reach a decision by the required majority of all the owners under TMS rule 2.5.8 A subsequent written ballot was organised by another owner proposing that the claimant and respondents, as owners of the top floor flats beneath the failing roof, should be equally and solely responsible for this maintenance cost. The TMS rule 3.1(g) provides that it is competent to take scheme decisions to determine non-payment of scheme costs. The proposing owner suggested that the ballot would be valid if agreed by a majority of owners.9

Unsurprisingly, the majority did vote in favour, with Sheriff Livingston noting in a blithe aside that “altruism did not win the day”.10 The votes of the claimant and respondents are unknown. In fact, it is doubtful that the respondent co-owners, SI and SI, were...

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