Sheriff Court case concerning the maintenance of part of an archway over a pend on Constitution Street in Edinburgh. The pend is a passage running through a tenement giving access to a courtyard and premises to the rear. The issue for the court was whether the owner of the pend was liable for a share of the cost of repairs to the archway above it.
Sheriff Morrison found that the pend was not part of the tenement and, although it could be described as a “connected passage”, there were no stairs or landings within it meaning that it did not satisfy the definition of a “close” in the Tenements (Scotland) Act 2004. As a result, the owners of the tenement were unable to recover a share of the costs from the owner of the pend.
Sheriff Principal (Stephen), however, allowed an appeal finding that, whilst the pend was not a close, it was nevertheless a “sector” of the tenement in terms of s29 (1) of the Act. The sheriff principal also took account of the fact that the pend was enclosed from the streetby large ornate gates and concluded that the pend did form part of the tenement. As such, the obligations (to provide support and shelter) contained s8 (1) to (3) of the Act, applied to it.
In finding that the owner of the pend was liable for a share of the repairs the sheriff principal noted:
“It would also offend against common sense to hold otherwise. The requirement to repair the pediment was accepted. The pediment relates to the archway over no 123. The viability and soundness of the pediment and archway must clearly be a matter of common concern to the owners of the flats and also the pend. There would be serious implications for all if there were to be a fall of masonry or a collapse of the pediment/archway. The sheriff’s judgment would excuse or exonerate the owners of the pend from responsibility for maintenance of the archway or other common parts. This cannot be a proper or reasonable outcome in the circumstances. The archway forms the roof and boundary of the pend and the owner of the pend has a common interest along with the owners of flats in 121 and 125 in maintaining the archway.”
The full judgement is available from Scottish Courts here.
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