Managing and Maintaining Flatted Buildings: Some Anglo-Scottish Comparisons
| Published date | 01 May 2010 |
| Author | Lu Xu |
| DOI | 10.3366/elr.2010.0005 |
| Date | 01 May 2010 |
| Pages | 236-258 |
Apartment ownership has a long history, dating back well before modern society.
See C G van der Merwe, “Apartment Ownership” (1994), in
This left Great Britain looking increasingly isolated. As late as the end of the last century, neither England nor Scotland had an apartment ownership statute. There were plenty of apartment buildings, of course, and many more were being built, but the law in both jurisdictions was largely static and, arguably, ineffective. In England, due to the problems associated with owning a flying freehold and enforcing positive covenants, flats had usually to be leased rather than owned – a system which, as the government pointed out, was “fundamentally flawed”.
Scottish Law Commission,
Scottish Executive,
For a long time, and in both jurisdictions, there had been calls for statutory reform. In Scotland the initial response was slow. Although the Scottish Law Commission published a discussion paper back in 1990,
Scottish Law Commission, Discussion Paper on the
Scottish Law Commission,
Abolition of Feudal Tenure etc (Scotland) Act 2000 s 1.
In England the history was longer and the pace slower still. The idea of legislative intervention began with the report of the Wilberforce Committee in 1965,
Law Commission,
Law Commission,
Despite the coincidence of timing, however, the Scottish tenement reform in 2004 was not intended as an equivalent of commonhold in England. In a manner similar to statutes in other jurisdictions, the English Commonhold Act created a new form of apartment ownership, and if an apartment building is to become a commonhold, it has to be registered as such under the statutory regime. The reform does not therefore affect any building, new or existing, unless some positive step is taken.
For the practical difficulties in respect of existing buildings being converted into commonhold, see P F Smith, “The purity of commonholds” [2004] Conv 194.
As a result, almost all apartment buildings in England have remained in leasehold despite the Commonhold Act. By contrast, the Scottish Tenements Act, or more precisely the Tenement Management Scheme (“TMS”) introduced by that Act, is automatically applied to all apartment buildings in Scotland, whether built before or after 2004. The only exception is where the Development Management Scheme (“DMS”) applies, in which case that scheme replaces the TMS. Although the Title Conditions (Scotland) Act 2003 made provision for the DMS, the scheme could not be enacted in full because one of its central features, the owners’ association, was a “business association” and hence reserved to the Westminster parliament.Scotland Act 1998 Sch 5 pt II C1. At C1 “business association” is defined widely as “any person (other than an individual) established for the purpose of carrying on any kind of business, whether or not for profit”. As “business” includes “the provision of benefits to the members of an association”, it will therefore presumably extend to the management of flatted buildings for the benefit of owners.
Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009, SI 2009/729.
With the DMS now in place, the developers or owners of a Scottish tenement building have three choices: they can do nothing and rely entirely on the TMS, or they can carry on the tradition of drafting their own title conditions, leaving the TMS (as a default regime) to fill in any gaps, or they can adopt the new DMS. As at 1 June 2009 the TMS applied to all 830,000 tenement flats in Scotland. The expectation is that some of these existing buildings and many of the newly built developments will start to adopt the DMS. In this sense the DMS faces a similar challenge to that which has confronted English commonhold since 2004, namely to convince developers and owners that it is a specialised, more convenient and effective system for the management and maintenance of flatted buildings. But it is not enough to win the battle of ideas: the DMS is unlikely to be widely used unless it is possible to overcome inertia and a reluctance to venture into the unknown.
So far, English commonhold has failed the test to a rather alarming extent. Developers of new buildings have shied away from innovation and continued to favour the “fundamentally flawed” but thoroughly familiar device...
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