If you have a dispute with a co-owner that you have been unable to resolve through meetings and discussions, you can use mediation or go to the Sheriff Court to get resolution. The new Simple Procedure process for legal claims does not require a solicitor and covers claims up to £5,000.
Many owners hesitate to take legal action against co-owners, fearing it will bring ill-feeling amongst owners. But, if an owner is refusing to pay their share of repair costs, then there are already problems, and the new mediation-based approach now being adopted by the courts may be the best way to restore harmony amongst owners.
Before considering legal action
Talk over the issue with someone knowledgeable but impartial. Citizens Advice and local advice centres are set up to help with situations like this.
Community mediation schemes are available in a number of areas, but you can also find private mediators.
Consider your case carefully
- did you use correct procedures in reaching decisions?
- are you sure you have got the right person? – double check ownership
- do you feel able to prepare a case for a legal claim? – if not, can you get help from an advice centre
- how do you feel about paying the cost of having any order enforced if it is not complied with?
You also need to have some certainty that the person you are claiming against can pay:
- if they own a house, your risks are greatly reduced, but they may be mortgaged to the hilt, and you may have to serve a Notice of Potential Liability and wait until they sell the house to get your money back
- if you are claiming against a landlord, you may be able to seize the rental income to pay off what is owed to you
Find a solicitor
For claims under £5000 you can use the Simple Procedure and don’t need a solicitor. However, for any claim over £5000 you will probably need to take an Ordinary Cause action that will require a solicitor. You may find it useful to talk over your situation with a solicitor before going ahead with any particular course of action.
You can search the Law Society of Scotland ‘Find a member’ page to help find a solicitor. You can search by your area and ‘Houses, property and neighbours’ for the area of law in which they specialise.
Can an owners’ association take legal action?
Owners’ associations are usually unincorporated bodies and do not have a legal persona. This means that they cannot take legal action or have legal action taken against them.
If one owner has paid a common repair bill and the debt is to one owner, then that owner needs to be the one to take legal action. Otherwise, each owner who wishes to take legal action will need to act separately – but you can all just submit almost exactly the same claim.
If you lodge all the claims at once, the Sheriff Court may decide to hear all the cases together.
When can I use the Simple Procedure?
The claim must be for a sum under £5,000 (for claims over this amount, you need alternative procedures and professional help).
You can also ask someone to do something (such as proving they have common insurance) as long as the cost of doing it yourself would be under £5,000.
You do not need a solicitor – the Simple Procedure is designed to be used by ordinary people who have little legal knowledge and using legal representation is not encouraged. Sheriff Court staff are able to help with form filling, but it will help to know some of the legal terms used and the outline procedure.
At the hearing itself, you can ask the court to allow either an unpaid ‘lay representative’ to speak on your behalf or an unpaid court supporter to sit with you to help you manage the case and give advice.
Legal reference
