Owners are responsible for paying for repairs from the time a properly agreed scheme decision to go ahead with work is reached (or in the case of work carried out by an owner under the Duty to Maintain rules, as soon as the work is completed). This responsibility stays with the owner even if they sell their flat. However, if an owner sells and moves, it may be difficult to contact them and to get them to pay for their share of repair costs.

You can overcome this problem by serving a Notice of Potential Liability for Costs. This notice works in two ways:

1. It makes the selling owner and the new owner jointly responsible for the repair costs as long as the notice is served in time.
2. A prospective purchaser of a flat subject to a Notice of Potential Liability for Costs will most likely ask the seller to pay off the debt before the sale completes (or may negotiate a price reduction).

A Notice of Potential Liability for Costs can be a powerful tool in persuading an owner to pay any maintenance debt, but is most effective if an owner is looking to sell their flat.

Any owner in the same building, or your property manager, can serve this notice.

A notice must created and registered against the title to the property. The registration process is dealt with through Registers of Scotland. The cost of registering the notice is £80 per flat title and needs to be lodged at least 14 days before the sale takes place. The notice lasts for three years, but can be renewed. If being renewed, you should register the renewal before the original notice expires.

Whilst you can register a Notice of Potential Liability for Costs yourself, you may need to get legal help to lodge a notice like this, as the accompanying registration documents and registration process are complicated. Look for a Property Litigator or Debt Recovery solicitor to get expert help with the process.

If you are working well with existing owners, you are advised to discuss the use of this safeguard with them first.

Some property factors also use this notice as a way of enforcing repairs as it means costs can be recovered on sale of the flat.

You can find out if a Notice of Potential Liability has been served onto a property by purchasing a copy of the title deeds via the Registers of Scotland website.

Next steps

• Notice of Potential Liability form download (this form is used for the notice that is registered in the Land Register or Register of Sasines and can be found in schedule 2 of the Tenements (Scotland) Act 2004)

Legal reference

• Tenements (Scotland) Act 2004 ss 12 and 13, and schedule 2