Before making any changes to your flat, whether that’s ‘improvements’ or changes in use, you need to check your title deeds and check if you need to get any consents or licences. There may well be legal consequences if you do not do this.
Before making any changes to your flat, you must:
- check your property titles
- check the Tenements (Scotland) Act 2004
- get consent from your co-owners
- obtain the appropriate building warrants and planning permissions
Checking your titles
Section A (Property) of your titles will tell you which parts of the tenement are owned individually or in common with other owners. Section D (Burdens) of your titles will tell you about ‘real burdens’, such as:
- how your flat can be used – it may say only for single family use, no business to be conducted from home
- what changes can and cannot be made – e.g. structural alterations require consent
- if you need to keep to a common scheme of paint colours or certain style of window etc.
The Tenements Act
In addition to what your titles say, there are also rules in the Tenements Act, particularly Section 8 (Duty to maintain so as to provide support and shelter) and Section 9 (Prohibition on interference with support or shelter). Section 9 also deals with impairment of natural light to any part of the tenement. These Sections can be enforced by any other such owner who is, or would be, directly affected by a breach of the duty or prohibition.
The Act, and recent secondary legislation, provides for a mechanism for the Scottish Ministers to bring in rules to automatically allow owners and other bodies to install services within the tenement, such as cables, gas pipes, and heating pipes for communal heating systems. However, currently Section 19 of the Act has only been used to bring in rights to install gas pipes and pipes for heat networks and communal heating within the common parts of the tenement. Importantly, these rights do not apply to the extent that the titles specify rules for the installation (or restriction on installation) of such services.
Before relying on any of this legislation, it is essential to thoroughly review the conditions and the available rights of appeal.
Legal reference
- Tenements (Scotland) Act 2004, s 8
- Tenements (Scotland) Act 2004, s 9
- The Tenements (Scotland) Act 2004 (Gas Services) Order 2018Â (allows for the installation of gas pipes)
- The Tenements (Scotland) Act 20024 (Heating Services) Regulations 2018Â (allows for the installation of pipes for heat networks and communal heating)
Getting consents from co-owners
Unless the titles say otherwise, if the part of the flat or building you want to alter is owned partly by another flat or owned in common, you will need to obtain express consent from the other owner(s) before making any alterations.
Normally, ‘real burdens’ are enforceable by all the owners. In general, it may also be possible for the other tenement flat owners to enforce any real burden that was previously granted in favour of what was known as the ‘feudal superior’. Therefore, if carrying out an alteration that may breach a ‘real burden’, consent should be sought. Even with minor alterations to common parts of your building, it’s advisable to obtain consent from the other owners.
As with most things, there are exceptions to the above rule as it may be that certain real burdens are no longer enforceable. If in doubt, you should seek advice from a solicitor.
If your titles are silent on ownership details, refer to the default rules in the Tenements (Scotland) Act 2004.
If in doubt as to ownership and alterations, seek legal advice.
Planning consent and building warrants
It is important to remember that getting consent from your co-owners is different to local authority consents, which may still be required.
Most major alterations to flats will likely require consent(s) from your local planning authority, such as planning permission and/or a building warrant.
A building warrant is required for all alterations to flats and maisonettes. However, that doesn’t mean that changing a kitchen tap would require a building warrant. If in doubt, check with your local planning authority and building standards department.
In terms of planning consent, some minor works are classed as ‘permitted development’ which does not require planning consent, unless the building is listed or in a conservation area. Permitted development rights have been changing a lot recently and may change in the future to allow for easier installation of environmentally friendly installations such as heat pumps, solar panels etc.
Minor works include adding a bike shelter in the private garden of a tenement and the following, as long as they don’t extend more than one metre from the building:
- replacement or new windows and doors (as long as you are not altering the dimensions)
- solar panels
- satellite dishes
- flues (exhaust pipes)
Adding dormer windows, balconies, roof platforms, etc. will require planning consent as will anything which makes a flat larger, such as a loft conversion or knocking two flats together.
Check your local authority’s website for specific information relevant to your area.
For more details, see this guidance.
Listed building consent
If your flat is within a listed building (i.e. a historically significant building), you may also require listed building consent before carrying out certain alterations. It is important to note that a valid planning consent does not remove the need for listed building consent. If applicable, you need both consents (and possibly a building warrant).
Internal changes and structural alterations
Under the Tenements Act, you are legally prohibited from interfering with any part of the tenement that provides support and shelter to the building, or from interfering with the natural light to any flat. This means you cannot demolish loadbearing structural walls without providing alternative structural support. You cannot leave openings in walls which would let damp into the building. It is particularly important to keep windows and the mastic around them maintained, and to deal with dripping overflows, both of which could lead to damp in flats below.
Apart from needing other owners’ consent, a building warrant, and possibly planning consent, you also need to consider how such changes could affect your neighbours. For example:
- putting a kitchen or living room above or below a bedroom could be antisocial and lead to later problems
- replacing or renewing sound insulation between floors, particularly around new pipes, may increase the noise travelling to your neighbour’s flat
- using carpet rather than laminate flooring will greatly reduce noise problems
Legal reference
Windows
You may need planning consent (and listed building consent if applicable) to replace windows (check with your council). Also, check what your title deeds say about whether any changes need to conform with the general loo and decoration of the rest of the flats.
Loft extensions
Top floor flat owners cannot extend into the loft if it is commonly owned. If your titles say nothing about who owns the loft, the Tenements Act states that the top floor flat owner owns the part of the attic space immediately above their flat. This means the top floor flat owner may be able to utilise the loft in some way but it would not automatically give them a right to install windows/dormers etc. in the roof as this may be owned in common.
If an owner solely owns the loft, they may be able to convert the loft in some way but that owner would still need to get:
- planning permission (to which other owners can object)
- a building warrant (which may not allow adding an additional storey to the living accommodation)
Satellite dishes
You may need planning consent and the consent of your neighbours if installing on or fixing a satellite dish to a common part. You will also be responsible for any damage installers cause to the building.
