When common property in a tenement, i.e. any building divided horizontally to form separate units, falls into disrepair any owner or any factor must look to the title deeds to determine how to proceed to make a repair. Failure to follow any procedure outlined in the titles may result:
1. In a requirement to stop such work, and
2. An inability to collect a share of the costs of such works from other owners.
If the titles are silent on these matters or individual titles contain conflicting information, then a scheme meeting called in terms of the Tenement Management Scheme (TMS) may be the answer.
However, when the damage or defect creates a health and safety risk to property or persons we are often asked if it is possible to bypass the requirement for any meeting per the titles or TMS. The simplistic answer to this is yes, but proceeding with any works without the sanction of the required number of affected owners carries risks. Any proprietor carrying out emergency works to common parts of a tenement wants to be able to recover a share of the costs from other owners with an interest in the common property.
In an effort to help owners or factors we have prepared the undernoted checklist which can be used before proceeding with such works which we trust will be of assistance.
Are the proposed works emergency works?
The TMS does not outline the parameters of what constitutes an emergency and cases are sparse. However, Sheriff K.J McGowan notes in the case Garvie v Wallace, that works that have to be carried out to prevent further deterioration/harm to the property or the people who utilise it will be classed as “necessary”. Our view is that emergency work is limited to works which prevent there being any immediate danger to persons or property and as such cannot wait for a meeting to be called and a vote taken. This is a significant test as most repairs won’t require such immediate action.
If the defect or want of repair creates an emergency, can I complete all works to remedy these?
No, only works which remove the danger to property or persons can be completed without the sanction of other proprietors per the titles or a meeting called per the TMS. This does not extend to completing the whole repair.
If it will cost more to have the contractor come out twice to complete the emergency works and then complete the necessary repair works, can I proceed with all of the works?
If the advice above is ignored and the job is completed, there is a risk that those owners, denied the ability to consult and determine what works are required to be undertaken and by whom, may refuse to pay their share of the works costs. They would likely succeed if they disputed the basis for completing and charging for such works.
The main takeaway is that emergency work is limited to that which is required to be carried out before a meeting can be held and a formal decision made.
The lack of definition of emergency repairs promotes differences of opinion in what parties may deem an emergency. Something, such as water ingress through a common roof may be pressing to the affected top floor proprietor but not for others. Using the checklist above, the top flat proprietor can immediately instruct a contractor to attend and cover any breach in the roof with a tarpaulin to prevent further damage by rain and snow but not to strip back and replace slates.
If you are uncertain of whether an issue in your tenement constitutes an emergency our Property Team would be happy to review the nature of the work, your titles and to advise on any action proposed.
