Organising common repair

Repairs Responsibilities

Homeowners are responsible for repairing and maintaining the common parts of their building.

Organising, financing and progressing common works can often be difficult if not all owners participate or contribute to their share of costs. This can result in repairs or maintenance works being blocked, buildings deteriorating, and larger repair cost further down the line.

Before you start organising common repairs it is important that you check your Title Deeds. They will tell you who owns the property, how the property should be managed and maintained, and who is responsible for repairs.

In some cases Title Deeds may not mention common repairs. If this is the case, the Tenements (Scotland) Act 2004 will apply. This Act was introduced to make sure that common parts of buildings are kept in good repair and it applies to any buildings that is divided into two or more flats on different floors. The Act doesn't override Title Deeds, but is intended to fill any gaps or unworkable clauses.

If you need further advice about your Title Deeds or areas of building responsibility, contact a solicitor.

The Following Sets Out Useful Information For Managing Common Repairs:

Contacting Owners

What the Tenements Act says:

Notification to owners about discussing, organising and instructing common repairs must be written, and can be posted faxed or emailed to the relevant property owner or their agent.

If you can't contact an owner or you don't know who the owner is, then notification can be posted through the door of the flat, addressed to "The Owner".

What's good practice?

Speak to people first so that you can answer any questions and then back up what has been said with a written note or letter. If you have to leave notification for an owner who is not otherwise contactable, get the delivery witnessed or send it by registered post.

Setting Up Meetings

What the Tenements Act says:

Give at least 48 hours notice. A meeting is not necessary if all owners (as far as practical) are consulted individually.

What 's good practice?

Hold your meetings in appropriate place (take account of any mobility/access issues) at a convenient time. If you have decided to consult everyone individually, make sure you get written confirmation of any decisions.

Running Meetings

What the Tenements Act says:

Where owners were not at the meeting, or no meeting was held, notify on any collective decisions made as quickly as possible.

Decisions

What the Tenements Act says:

Majority decision-making of owners is the basic rule for progressing common repairs (unless your title deeds say otherwise). You also need to know if it's repairs/maintenance or improvements work being proposed because if it's improvement, then the approval of 100% of owners is required.

What's good practice?

If you don't get 100% of owners to agree on a common repair, wait 28 days to allow for an appeal.

Getting Estimates

What's good practice?

Get more than one comparable estimate (see our "Organising Repairs to your Building" page).

Advance Payments

What the Tenements Act says;

Where owners make advance payments of more than £100 for one repair (or £200 over 12 months), you must give a written receipt, and the money must be put in a maintenance account. Prior to any work commencing, you should supply full details of the work and refund arrangements including:

• Estimated cost of work.
• Why the estimated is considered reasonable.
• How all the owners' shares have been calculated.
• What all the owners' shares are.
• Date of decision and who made it.
• Timetable for the proposed works.
• Details of maintenance account, location and signatories.

If there are any changes, owners must be notified again. Owners are entitled to see the other quotes or estimates.

What's good practice?

Keep evidence of all expenses incurred and give owners a complete note of all accounts.

Bank Accounts

What the Tenements Act says:

The maintenance account (held by a bank or building society) must be interest bearing and require two signatures (or that of the property manager).

What's good practice?

Constitute your owners' group and appoint a treasurer.

Returning Money

What the Tenements Act says:

You may need to refund money if work does not start within 28 days of your official start date or any other date you have agreed. Any sums left in the maintenance account after work has been paid for will be shared amongst those who have paid into the account - this includes interest.

Disagreements

What the Tenements Act says:

An owner can refuse to pay their share if they've not been properly informed of decisions made about common repairs. If this happens, all other owners would need to cover their share of the costs between them. If an owner objects to the work being carried out, and intends to refuse to pay their share on the grounds that they were not properly notified, they must inform the other owners in writing immediately.

If someone owns 75% or more of the property concerned and did not vote, they can reverse the decision. However, they must tell all other owners in writing. Owners who did not vote or disagree with a decision can appeal to the Sheriff Court if they feel the decision is:

• not in the best interests of the owners as a group
• is unfairly prejudicial to one owner.

What If Someone Doesn't Pay

If someone does not pay, the other owners must make up the shortfall. In some cases, owners may choose to accept this extra cost rather than taking legal action to recover the money due, which can be expensive and time consuming. If an owner is bankrupt or can't be found, then the costs will also be shared equally amongst the other owners. The non-property owner is still liable to repay their share of the cost to the other owners, even if those owners have since moved on.

Can You Make Someone Pay?

If you decide to pursue the debt owed, then they are a number of things you can do:

• If the debt is under £750, you can use the small claims court. This procedure is designed to be cheap and easy to use.

For larger sums or a more complex problem, you should seek expert advice from a solicitor and obtain a decree from the Sheriff Court by raising an action for payments against the person owing the money. The decree is then given to Sheriff Officers who are asked to serve a document called a "charge" giving 14 days to make payment. If the debtor still refuses to pay, the Sheriff Officer can then be instructed to recover the sums due under the decree (and the legal expenses and expenses of debt recovery).

There are then various ways in which the debt can be recovered, ranging from taking the money from earnings to taking control of the property and using the rent to pay off debts. In addition, if the debt is more than £1,500, bankruptcy proceeding can be considered. Very often, people will pay on the threat of using these procedures.

If agreement cannot be reached on how repairs should be carried out and paid for, the Council may serve a Statutory Notice under the terms of the Housing (Scotland) Act 2006. Statutory Notices such as Works Notices or Maintenance Plans/Orders may be issued is defects are identified in the fabric of the building, which are resulting in its significant deterioration. Ultimately, these actions can result in the Council taking forward any necessary repair works and subsequently recharging owners, which may prove to be more expensive than owners doing it themselves.

For advice contact:
Housing Policy and Strategy Team
Tel: 0300 123 0900