There are a number of options for enforcing repairs that you can take yourself, some with legal help. There are other solutions that can only be implemented by your local council.
Making other owners join a repairs scheme
The options you can use yourself to enforce repairs are:
- the Duty to Maintain
- Notice of Potential Liability for Costs
- the obligations to maintain contained in your title deeds
- emergency repair procedures
All councils will be willing to give help and advice around repairs, but may not have the budget to assist all owners. Consider taking action yourself first, perhaps with advice from your council.
Before following the information on this page, you should have already:
- identified all your co-owners
- followed proper procedures
- be undertaking maintenance not improvements
- have done your best to negotiate with your co-owners
- considered the needs of vulnerable owners, such as how to finance repairs
Duty to Maintain
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 individuals’ 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 of repair.
In a recent court case, a Sheriff also ruled that the duty to maintain could only be used to enforce patch repairs, even though this appeared to be not in the owners’ best interests as a whole.
If you do not agree, you can ask the Sheriff Court to decide who is right.
Legal reference
Enforcing 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
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
- check all the owner’s shares and send them the bill
- 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
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, consider taking legal action. You may wish to discuss this with a solicitor first.
Legal reference
Notice of Potential Liability
Owners are responsible for paying for repairs as soon as a properly agreed decision to go ahead with work is reached. However, if an owner sells and moves, it may be difficult to contact them to get them to pay for their share of repair costs.
You can overcome this problem by serving a ‘Notice of Potential Liability for Repairs’. This notice makes the selling owner and the new owner jointly responsible for the repair costs. Any owner in the same building, or your property manager, can serve this notice.
You need to serve this notice through Registers of Scotland. The cost of registering the notice is £60 per flat and needs to be lodged at least 14 days before the sale takes place. The notice lasts for three years but can be renewed. It can only be served by another owner in the same building or the property manager.
You may need to get legal help to lodge a notice like this, as the accompanying registration documents are complicated.
If you are working well with existing owners, you are advised to discuss the use of this safeguard with them first.
Some property managers also use this notice as a way of enforcing repairs as it means costs can be recovered on sale of the flat.
Legal reference
Emergency repairs
Emergency repairs are defined as those that:
- really cannot wait for a scheme decision to be made
- are required to prevent damage to your building
- are in the interests of health and safety
In buildings where contacting other owners is straightforward, proper procedures should be followed before conducting emergency repairs. In these situations, emergencies are more strictly defined as issues impacting ‘life and limb.’
However, in cases where reaching other flat owners is difficult and time-consuming, the definition of emergency repairs can extend to include actions needed to prevent property damage.
Legal reference
Help from your council to enforce repairs
Your council has a number of powers it can use to enforce repairs. These can include compulsory repairs and paying Missing Shares.
However, not every council has the resources to follow up. This can stop a council from taking the action both you and they would want.
You should not let this stop you approaching your council for help as staff can be a useful source of advice and can help mediate a problem.
Your council also has powers to recover costs that are not available to individuals.
