If your titles are holding back repairs, they are relatively easy to change, particularly if all owners agree. If you cannot get all owners’ agreement, then you will need to follow specific procedures. You may need to go to the Lands Tribunal.

When to change your titles

If your titles cause problems which cannot be dealt with by using the Tenements Act, then you should consider changing them. While you can make contractual arrangements between owners – even an exchange of emails can be a contract – you cannot make these agreements endure when flats change hands.

A change made to your titles will be permanent and apply to all future owners of flats in your building.

If you can all agree to a contractual change, then you should all agree to a permanent change while you can. You may not be able to get agreement in the future after a new owner moves in.

The most common reason for changing titles is to change the shares paid by each owner. For instance, if the share of costs is set by Rateable Value (as was set out in 1989), the owners may feel this is no longer fair because some properties, particularly shops, may have changed in use or in value, compared with other properties. In many instances, shops carry a higher Rateable Value and therefore a higher share of common costs. As a result, repairs may be held up due to this apparent imbalance and everyone suffers.

If you all agree to changes

If you all agree, each owner has to register a change in their titles with Registers of Scotland.

You should take legal advice over this as a new title will need to be created and registered against all properties.

You need to take legal advice, partly to check that there are no implications that you were unaware of, but also to make sure that you follow the correct procedure. If you have a mortgage, in most instances the mortgage provider will insist on a solicitor being used.

You can:

• add in a clause (e.g. to set up a Building Reserve Fund) – you will need to have a properly drawn up clause which should be the same for each property
• issue a Notice of Termination to end an old and out of date condition
• issue a Deed of Discharge/Variation to change a condition

You may want to agree that those owners who benefit from the change should pay some compensation to other owners or a higher proportion of the legal costs, but bear in mind:

• the owners who benefit from the change may have been paying an unfair share of repair costs for some time
• the small decrease in the value of a property, due to the share paid for repairs, compared to the higher value of a well-maintained property

If you cannot agree on compensation, you can commission a valuation surveyor for an opinion.

If owners disagree

If you cannot get all owners to agree, you need to start on the legal routes as set out below for owners agreeing, serving the appropriate legal notices, and then waiting to see if other owners object. If they do, then you may need to attend a Lands Tribunal hearing.

The issue of who is responsible for paying for any advisers you employ for the hearing will arise, so it is worth negotiating with the other owners beforehand if you can.

Lands Tribunal

In considering a case, the Lands Tribunal will take a number of factors into account, including:

• any change of circumstances (for example, a shop being converted into a flat)
• the benefit to the building as a whole e.g. will it be hard to get future agreement to repairs if the shares of repair costs are unequal?
• the purpose of the condition an owner wants to change and if this condition is still relevant
• how much owners stand to benefit or lose – for example, the Tribunal may look at the record of previous repairs and the shares paid by each owner or future property values
• whether owners are willing to pay compensation for the change
• any other relevant factor

You can appear at the hearing in person or if the parties agree, it can be decided through written representations. The tribunal may wish to make a site visit (if relevant).

The Tribunal cannot:

• change ownership – e.g. make something now in common ownership the property of only one owner

The Tribunal can:

• award compensation
• decide who should pay the legal expenses of the case (these can be high if people are represented by counsel and have expert witnesses, such as valuation surveyors)

If you are opposing changes and wanting compensation, you need to spell this out before the Tribunal hearing and say what level of compensation you want, giving evidence.

If compensation is awarded, The Tribunal won’t order it to be paid to those who have not made representations to the Tribunal.

• Relevant cases that have been decided by the Lands Tribunal

Using your titles to stop another owner doing something

You may be able to use title provisions to stop another owner who wants to:

• make alterations to the property
• use the building as a House in Multiple Occupation
• run a business from their flat
• take over a storage area or the loft
• prevent access to the garden
• do anything else the title deeds say they can’t

Write and tell the owner that what they are doing is in breach of the Title Conditions and that you will not permit it. If the owner persists, you can take legal action to stop the other owner, force them to do something specific, or to get damages. You will almost certainly need legal help for this as it may involve taking court action.

If the titles say a Superior’s consent must be obtained, e.g. for alterations, then it is most likely that this now becomes a requirement to get other owners’ consent, if they are subject to the same requirements. However, the title condition may have already been breached and is therefore no longer enforceable. You will need legal help to determine this.

What if another owner tries to change the titles?

If you receive a legal notice saying that another owner wants to change the Title Conditions, you need to act quickly. You may have only 21 days to act.

These are the notices that might be served on you:

Minutes of Variation of Discharge (s33 and s34 of Title Conditions Act)

• the majority of owners choose new conditions or want existing conditions removed and ask others to sign the Minute – you have eight weeks to make objections

Notice of an Application to vary or discharge community burdens (s91 Title Conditions Act)

• at least one quarter of the owners have applied to the Lands Tribunal to vary or discharge a community burden
• you have 21 days to object (minimum)
• you will be notified by the Lands Tribunal

Notice of Termination (s20 Title Conditions Act – Sunset Rule)

• irrelevant rules over 100 years old
• such a rule cannot be terminated if it is about maintenance, access, use of a shared facility, allowing services to run through a property, etc.
• an owner trying to make changes will need to issue a statutory Notice of Termination (which needs to include a number of specific details)
• you have eight weeks to apply to have the rule renewed (although you may need to follow the Lands Tribunal process as part of your application)

Default (s18 Title Conditions Act – Negative Prescription)

• a breach of the Title Conditions has occurred for five years use without any owners making objections

Deemed Acceptance (s16 Title Conditions Act – Acquiescence)

• you cannot object if you acquiesced to the change in breach of a title condition, e.g. you knew about an alteration to a flat but did nothing about it within 12 weeks (maximum period) of the alteration having been completed

Legal reference

• Title Conditions (Scotland) Act 2003