Historic position

Historically when a disabled proprietor wanted to make an alteration to the common parts of a tenement to allow them to continue to use and enjoy their home by, for example, introducing a stair lift, access ramp or additional handrails by dint of the Common Law they required the consent and agreement of all other owners in the tenement to permit the change.  The introduction of the Tenements (Scotland) Act 2004 failed to provide a simplified mechanism for approving such improvement or alteration works to common property.

New Regulations

Scottish Ministers have had the power in terms of the Equality Act 2010 to tackle this problem but they only did so in 2020 with the introduction of the Relevant adjustments to Common Parts (Disabled Persons) (Scotland) Regulations. The 2020 Regulations now provide a prescriptive procedure to follow to obtain consent for such alterations. However, they do not provide for the sharing of costs and it falls to the disabled person making the alteration to fund these, pay for the maintenance and upkeep of equipment, and to reinstate the common parts when the alteration is no longer required.

The regulations provide that consent of all owners for an alteration is no longer a requirement. Instead, the disabled person requires only the agreement of the majority of owners affected by the change.

Relevant criteria

Certain criteria do apply.  The disabled person must seek consent to altering common parts relevant to their private dwelling occupied by them in their capacity as proprietor, tenant or permitted occupant.  The premises must be that person’s only or main home. 

The relevant common parts are defined in the Regulation by their function rather than ownership and comprise: the structure of the building, the exterior of the building, common facilities such as the common entrance and stair, or common facilities used in connection with the building.

The proposed works must fall within the classification of relevant adjustments - this means alterations or additions which will avoid a substantial disadvantage for the disabled person when using the common parts in comparison with persons who are not disabled.  The Regulations also make mention specifically to promoting access to premises as well as alterations to make them suitable accommodation and promote the welfare of a disabled person.  An example of this would be the introduction of a key safe.  

Procedure is prescriptive

All of the above promotes a positive approach however, the procedure for obtaining the majority consent is prescriptive.  There are three key stages to follow.  

1. The disabled person sends an application for consent in the prescribed form to all owners affected by the works. This must set out the nature of the adaptations, the timetable for completion of the proposed works and such notification must be sent either by personal delivery or by registered or recorded post to each affected owner’s last known address or a company’s registered office. It can only be sent by email or other electronic mail if the recipient has previously agreed in writing to accept service in that way.
2. The owners of the affected common parts must respond to the initial notice within a month, by issuing a written reply indicating their acceptance or refusal of the proposals made. Someone failing to respond timeously is taken to have refused the application. If an owner refuses consent they must identify the reason for that refusal.  If giving consent to the alteration an owner can introduce reasonable conditions and a list of possible conditions in supplied in the Regulations. It is not clear if this list is exhaustive.  If the condition proposed is not accepted by the disabled person, the owner’s response will count as a rejection. 
3. The final stage of the process is for the disabled person to count the votes and send out a further notice to all owners identifying the outcome.

Anyone, including the disabled person, has the ability to appeal the decision to the Sheriff by way of Summary Application. The Regulations specify that the disabled person cannot commence work until “the deadline set by Regulation 10(1) has passed for making an appeal”.  Unfortunately, no deadline is prescribed in Regulation 10(1) and the inference therefore is that as the Regulation stands the work can never begin.  At the time of writing, this omission still falls to be corrected.

For more information or advice, please contact our team.