Every owner has a duty to maintain the parts of the tenement that provide support and shelter. This would apply to leaking roofs, rot in structural timbers, leaks around individual’s windows etc.
This duty can be enforced by other affected owners and does not require majority agreement, though this should be sought wherever possible.
This is a very powerful legal protection for your tenement but you may need to seek help to enforce it.
Maintenance must be reasonable – so, an individual owner may argue that it is not reasonable to maintain given the dilapidation of the building and the high cost repair. If you do not agree, you can ask the Sheriff Court to decide who is right.
How to enforce the duty to maintain
When an appropriate repair is required:
- remind owners of their legal duty – if talking to your co-owners has no effect, writing may be more effective
- adapt the downloadable Duty to Maintain letter to suit your circumstances
- if your co-owners don’t respond, ask your council for help – they may be able to serve a Work Notice or use the Missing Shares provision (note these can only be used prior to work being carried out)
Download the Duty to Maintain letter template
If your council can’t or won’t help, this is what you do:
- confirm that you have followed proper procedures
- carry out the work
- send the bill to the other owners, calculating their shares appropriately
- when you send the bill, be clear that you are willing to take legal action to recover your costs
- take legal action to recover costs if required
- for repairs under £5000, you can use the Simple Procedure
- for repairs over £5000, you can take an ‘Ordinary Cause’ action and will need a solicitor
Getting help
If you have got as far as sending the bill for a repair but got no response and your council is unable to help, you should consider consulting a solicitor before taking legal action.
Legal reference
