Tenements (Scotland) Act 2004
| Jurisdiction | Scotland |
| Citation | 2004 asp 11 |
| Year | 2004 |
Tenements (Scotland) Act 2004
asp 11
[22nd October 2004]
and received Royal Assent on[16th September 2004]
The Bill for this Act of the Scottish Parliament was passed by the Parliament onAn Act of the Scottish Parliament to make provision about the boundaries and pertinents of properties comprised in tenements and for the regulation of the rights and duties of the owners of properties comprised in tenements; to make minor amendments of the Title Conditions (Scotland) Act 2003 (asp 9); and for connected purposes.
Boundaries and pertinents
1 Determination 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.
2 Tenement 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.
3 Pertinents
(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
4 Application 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
5 Application 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...
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