6 Dealing with difficulties
This section provides information on dealing with difficulties with your fellow owners and the powers that councils have to force owners to maintain their buildings.
6.1 Disagreements about decisions
Various problems can arise when the decision has been made to carry out maintenance work.
6.1.1 Problems with how decisions were made
If a decision is taken irregularly (that is, the correct procedures in the Tenement Management Scheme or your title deeds were not followed), owners are not liable to pay their share of the costs if:
- they were not aware that the decision incurred costs; or
- on becoming aware they immediately objected to the costs being incurred.
The procedural irregularity does not otherwise make the decision invalid but it does mean that the remaining owners will need to cover that owner’s share.
6.1.2 Appealing against decisions
You may be unhappy about a decision you did not vote for or a decision taken before you bought your flat where the work has not yet been carried out. If so, you can apply to the sheriff court to have it cancelled. However, the sheriff will only cancel a decision made by the majority of owners:
- if it is not in the best interests of the owners as a group; or
- if it is unfair to one or more of them.
You cannot appeal against a decision you have voted for. You should take legal advice about going to the sheriff court. You must apply to the court within 28 days of the meeting at which the decision was made, if you attended that meeting, or from when you were told about the decision. During that time, the decision cannot be implemented.
6.1.3 Where an owner has majority ownership
If the decision you did not vote for was about maintenance and you are liable for 75% or more of the costs of that maintenance, you can cancel that decision by sending the other owners or their agents (that is, persons or firms authorised to act on their behalf) a written notice.
6.2 What happens if an owner is unwilling to pay?
If any owner refuses to pay his or her share (set out in either the title deeds or the Tenement Management Scheme) the obligation to pay can be enforced in the sheriff court by any owner or anyone authorised by an owner or owners.
To obtain payment from an uncooperative owner, the other owners could do the following:
- Ask a solicitor or adviser to write to the owner, pointing out their obligations under the title deeds or the Tenement Management Scheme. This can often be enough to resolve the problem.
- Commission the repair and be prepared to pay the bill themselves.
- Send the uncooperative owner a bill for his or her share with a stated time (say 7–14 days) in which to pay.
As a last resort you can obtain a decree by raising an action in the sheriff court for payment against the person owing the money. In these circumstances, you should take legal advice. You may want to ask your solicitor if you qualify for legal aid. Your solicitor will also be able to advise you how to enforce the decree and get the money owed to you. Going to court to enforce obligations in the title conditions or Tenement Management Scheme should be your last resort as it can be slow and expensive.
6.3 What happens if an owner is unable to pay?
Under the Housing (Scotland) Act 2006, councils have powers to pay missing shares into maintenance accounts. The ‘missing share’ provision works like this:
i. The other owners will have to show the council that they have gone through all the proper procedures for commissioning maintenance.
ii. Your council should have a framework for deciding who is unable to pay and when it is unreasonable to expect an owner to pay.
iii. Before paying in a missing share, the council must satisfy itself that the maintenance is reasonable, and that the owner is being asked to pay the rightful share according to the title deeds or the Tenement Management Scheme.
The council can only pay in the missing share where:
- the owner is unable to pay in the funds; or
- it is unreasonable to ask them to do so; or
- the owner cannot be identified or found by reasonable enquiry.
The council is not obliged to pay a missing share. However, if it does, it can recover any costs it incurs, including administration and interest.
If the council will not help by paying missing shares, then the other owners must pay the share equally or in proportion to the area of each flat (whichever applies). If the owner is bankrupt or can’t be found, they still owe costs to other owners. If the owner is untraceable, the money could ultimately be recovered from the value of their property. This would require court action. However, the other owners can decide that the missing owner is exempt and divide the costs among themselves.
6.4 Work notice
A work notice is a compulsory repair order which the council can serve to ensure that works are carried out. It can be served against residential owners and owners of non-residential premises that form part of the same building as houses requiring work. The work notice will set out:
- the reason for serving the notice;
- the work required;
- the standard that the house should achieve on completion; and
- when the work must be completed (which must be a reasonable period and at least 21 days).
Where the council serves a notice, it must provide owners with assistance – for example information on how to do repairs. It need not do any work on an owner’s behalf. However, if the owner does not comply with the notice within the time limit, or to the standard stated in the notice, the council can do the work itself and reclaim the cost from the owner.
6.5 Maintenance orders
A council can serve a maintenance order where an owner has not maintained, or is unlikely to maintain, their property to a reasonable standard. It can also serve a maintenance order where a work notice has been implemented but the benefit of that work has been reduced or lost because of a lack of maintenance. This can apply to owners of non-residential premises within a building that contains housing and where there are concerns about maintenance.
For example, a work notice might be served because gutters and downpipes left leaking for a long time have led to dampness and dry rot. A maintenance order might require a plan to ensure the gutters are cleaned every year and downpipes painted after four years to prevent the problem recurring. However, a work notice does not automatically mean there will be a maintenance order.
The order requires the owner to develop a maintenance plan to keep the property maintained to a reasonable standard for a period of up to five years. The council will be able to enforce the maintenance plan if required and recover the costs from the owner.
The maintenance order will be recorded in the Land Register so that your lender and any future buyers will see it. You can appeal against the decision to serve a maintenance order. You should take legal advice if you are considering appealing against a maintenance order.
6.6 Maintenance plans
A maintenance plan will set out what regular maintenance work is needed. A joint maintenance plan will cover the common areas of tenements but can also include works that are the individual owner’s responsibility (for example, painting windows). Section 4.1 on establishing a building maintenance schedule will give you an idea of what is likely to be in a maintenance plan.
The plan will also set out owners’ shares for implementing the works. These must accord with what is set out in the title deeds or the Tenement Management Scheme.
The maintenance plan must set out:
- what maintenance is needed throughout the period of the plan;
- what steps are to be taken to achieve this (e.g. annual surveys);
- when these steps are to happen (e.g. every August); and
- an estimate of the costs.
The owners may also be required to:
- appoint someone to manage the implementation of the plan; and
- open, and deposit sums into, a maintenance account.
A majority of owners must agree to the plan before the council can approve it. If you do not respond in the time limits set out in the maintenance order, or if the council is not happy with the plan you submit, it can devise the plan instead. You can appeal against the council’s decision not to approve the plan or to devise the plan itself.
You should take legal advice if you are considering appealing. Once the plan is approved, it will be registered in the Land Register.
The council may ask you to submit a report to the council every year to show that you are carrying out the plan as intended. If there is a problem, the council will probably want to speak to you about this before taking action but if you still don’t do the work, the council may step in to do it and then charge you.
Councils have a right of entry to check that the plan is being carried out and can also recover the costs of enforcing the maintenance plan.
6.7 How will the council get its money back from owners?
If a council enforces a work notice, it can recover the costs from you, including interest and administrative costs. The council will notify you of the costs, and will serve a notice on you if you are to pay the sum by instalments. Interest can only start from the date the notice is served. The council can issue a repayment charge, which is registered against the title of the property concerned, so that anyone buying the house can see that the charge is there. Buyers are likely to want the charge paid off before they purchase the property.
The repayment charge will normally be paid off in 30 annual instalments. The instalments will be set to include interest. You can pay off the charge early if the council agree. If you are interested in early repayment, you should discuss this with the council.