What are common costs?
Owners of ‘flats’ within a tenement are not only responsible for repairing and maintaining their own individual property but also have a joint responsibility to contribute towards the common costs incurred to upkeep the common parts of the tenement. This may include the common stairs, close and anything else listed in the title deeds.
Common costs can be shared amongst owners through various methods. Ideally, the properties’ title deeds will identify the method, such as by a defined percentage or fraction. Where titles are silent, conflicting, or the method is unworkable, the Tenement Management Scheme (TMS) provides a set of default rules to assist in determining how costs are apportioned.
How are common costs allocated when there is an error or omission in the title deeds?
The default rules provide that costs associated with ‘maintenance’ are to be simply shared equally among the flats. However, in instances where the largest flat in the tenement is more than one and a half times larger than the smallest flat, costs are to be allocated according to the proportion which the floor area of each flat covers in relation to the tenement’s total floor area.
N.B. The TMS refers to ‘maintenance’, however, this also includes:-
- Repair, replacement and reinstatement;
- Installation of insulation; and
- Cleaning, painting, gardening, routine works and the day to day running of the tenement.
How is floor area calculated?
When taking measurements to calculate shares according to floor area, unless otherwise stated in the title deeds, the following rules apply:
- Internal walls or other internal dividing features should be included;
- Lofts and basements used solely for storage should not be included; and
- Balconies should not be included.
Accurate floor plans which comply with the above rules may be used to determine the floor area of each flat and the entire tenement.
If floor plans are not available, are owners required to provide access for the purpose of taking measurements?
Upon reasonable notice being given, the Tenements (Scotland) Act 2004 requires owners to allow access to their flat for the purpose of measuring floor area where necessary to determine owners’ liability. If an owner refuses, other owners or a factor (where permitted) can apply to the Sheriff Court for an order to grant access.
Who pays for the measurements to be taken?
For the avoidance of any doubt or delays, it is advisable that a surveyor is instructed to measure the required floor areas. The TMS provides that any costs incurred in calculating floor area for the purpose of determining liability is a ‘scheme cost’ and owners will be liable to contribute according to their respective share.
If you require any further information or assistance regarding apportionment of common costs, please contact a member of our Property Team who will be happy to review your title and advise.
