This is a Sheriff Court case concerning the liability for repairs to the roof of a building in Edinburgh.

The building was formerly a single dwelling but subdivided into three flats and fell within the definition of a tenement in terms of the Tenements (Scotland) Act 2004. The title deeds contained a burden sharing the cost of repairs to the roof on the basis of the assessed rentals for the flats.

Ms Waelde was seeking the recovery of the costs of repair of a skylight and Velux window in the roof of the property from the owner of one of the other flats.

Velux Window
With regard to the Velux, Mr Ulloa argued that, because the Velux had been added after creation of the burden, the burden did not apply to it. That argument was not accepted by the sheriff who, noting that the repairs were to the outer edge of the frame of the Velux and the wall separating the building from the building next door, was “attracted by the idea” that a roof should:

“be taken to include parts added thereto which are of the same character; and that an obligation to contribute to the cost of maintaining it created by the type of burden in the present case should be treated as extending to the cost of maintaining same.”

Also, the sheriff noted that Mr Ulloa had bought his flat after the Velux window had been added and took the view that Mr Ulloa had acquiesced in the presence of the Velux and the burden should be interpreted in a way consistent with the window forming part of the roof.

However, although the sheriff could make a finding in principle that Ms Waelde could recover the costs of repairs to the Velux, Ms Waelde did not provide evidence as to the rateable values of the flats and consequently the sheriff found that her case in that regard had to fail.

Skylight
With regard to the skylight, the sheriff found that the repairs (replacement of Flashband tape on the surfaces of the glass panes themselves) were not repairs to the roof and consequently the title burden did not apply. However, the sheriff found that the skylight acceded to the roof. And, whilst that did not mean the skylight became part of the roof, it did mean that it was part of the building. But, as the roof was common property and the skylight acceded to it, the skylight was common property too (the sheriff noted that he came to this conclusion with some hesitation). In terms of the Tenement Management Scheme (TMS) contained in the 2004 Act, common property is “scheme property” and in terms of Rule 4(2)(a) of the TMS, MR Ulloa was liable for one third of the cost of maintaining the skylight.

The full judgement is available from Scottish Courts here.

Sheriff Court case concerning liability for the maintenance of Carbeth House in Killearn. The property comprised 9 flats each of which was subject to a deed of conditions.

Facts
A large crack which appeared in the west wall of the property on 16 August 2007 was examined by a building standards surveyor from Stirling Council on 17 August 2007 and found to be dangerous. The surveyor wrote to the owners of the flat requiring a protective fence to be erected around the wall and intimated that a dangerous buildings notice would be served on the owners by the Council. On the recommendation of a civil engineer and, following a majority vote of the proprietors (by email), a protective fence was erected together with scaffolding to support the wall (on 20 August 2007).

The crack in the wall was discussed, and the measures taken, explained at a meeting of the proprietors on 23 August 2007 (convened primarily to discuss another matter) and no objection was raised. A dangerous buildings notice was issued to the proprietors on 24 September 2007. Contractors were asked to tender for the repair works required by the dangerous buildings notice and, in September 2008, the proprietors voted by majority (again by email) to accept one of the tenders.

The proprietors were then asked to contribute money into a repair fund. However, Mrs Wallace and Mr Crossan declined to contribute. After some legal correspondence, solicitors acting for Mrs Wallace and Mr Crossan indicated in a letter (on 29 May 2009) that they would pay their share of the costs of the repairs on receipt of the appropriate engineer’s certificate and were anxious for the work to be carried out and the scaffolding removed.

In June 2009 the repair commenced. The repairs, along with additional works revealed as necessary when the initial work began, were completed on 12 October 2009. Mrs Wallace and Mr Crossan failed to pay their share of the costs and Mrs Garvie was authorised by a majority vote of the other proprietors to recover the sums due from Mrs Wallace and Mr Crossan.

Argument
Mrs Wallace and Mr Crossan argued that the sums could only be recovered if the works had been done in terms of the title deeds. In terms of the deed of conditions there had to be a meeting of the proprietors before works could be instructed (and, they argued, no scheme for works had been agreed at the meeting on 23 August 2007).

Decision
The sheriff found Mrs Wallace and Mr Crossan were liable to pay their share of the cost of the repairs (£6,483 in the case of Mrs Wallace and £6,858 in the case of Mr Crossan). He concluded that the wording of the deed of conditions was permissive and that the procedure in the deed of conditions was not the only method by which the proprietors could instruct repairs. Against that background the sheriff considered the situation by reference to the common law, consent and the Tenements (Scotland) Act 2004.

Common law
The wall was common property and, in terms of the common law, all of the proprietors were obliged not only to contribute towards the cost of the repairs but to actively ensure that the repairs were carried out. It is also a well known principle of the common law of common property that any one proprietor can instruct common repairs and then look to fellow co-proprietors for a contribution towards the cost. Quite apart from the deed of conditions, the sheriff took the view that all of the repairs were necessary and could be instructed by any of the co-proprietors and that Mrs Wallace and Mr Crossan were obliged to pay a share of the costs.

Consent
With regard to consent, Mrs Wallace and Mr Crossan had attended the meeting on 23 August 2007 at which the works and costs had been discussed and made no objection. The letter of 29 May 2009 could be treated as unconditionally binding Mrs Wallace and Mr Crossan to the costs including the increased costs and additional work. Even if not, they had been provided with information at each stage and were to be deemed to be renewing the authority given in the letter by failing to revoke it.

The Tenements Act
Initial scaffolding works
With regard to the Tenements (Scotland) Act 2004, the initial scaffolding work amounted to an emergency repair[1] and, as the deed of conditions did not provide for emergencies, the tenement management scheme contained in the 2004 Act applied. Any owner can instruct emergency repairs and the costs of such work are “scheme costs” (meaning they would be shared[2] amongst the proprietors).

Retention of the scaffolding
As to the retention of scaffolding in place after the meeting on 23^rd August 2007, the procedure for making the decision to do so was provided in the deed of condition (i.e. by majority vote at a meeting of the proprietors). In this case the meeting had not been convened in accordance with the deed and there was no vote. However, there had been a meeting at which it was discussed and the proprietors knew the scaffolding would need to remain in place until repairs could be organised. There was no evidence that Mrs Wallace and Mr Crossan had disputed the need to retain the scaffolding and there had been consensus amongst the proprietors at the meeting. As such, the sheriff found that a scheme decision had been made (in terms of the 2004 Act) but that the decision had been reached by an irregular procedure[3]. However, the irregularity did not affect the validity of the decision[4].

Completion of the works
The same analysis applied to the repairs carried out. A vote took place by email after circulation of the projected scheme costs. The majority approved the scheme and, even though Mrs Wallace and Mr Crossan may not have voted in favour of the scheme, they did consent. Again, although this did not follow the procedure contained in the deed of condition, the sheriff found that there had been a valid scheme decision (albeit reached by an irregular procedure).

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.