Lecture 15 - the law of the tenement PDF

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Property Law 15 – Land Ownership – the law of the tenement Introduction: When we talk about the law of the tenement we mean the law of flats – although the word comes up in other contexts. The most common conventional separate tenement is a flat. TENEMENTS AT COMMON LAW Historically regulated by the common law - giving a basic pictures – if you buy a tenement flat, you buy sole ownership of the individual flat plus a share in the common ownership in common parts of the building (i.e. the front door, the stairs, the lift)  Common law  Sole ownership of flats  Common ownership of common parts  Why did we need the Tenements (Scotland) Act 2004? – it was felt that elying on the common law wasn’t working. Mainly, obligations between enighbours were regulated by the general law – to support shared walls for example – these were regulated by the doctrine of common interest. If there was antisocial behaviour etc it was dealt with in nuisance. It didn’t offer any scope for people to be proactive in taking care of their buildings. This is now the main source of law.  Two provisos:  T(S)A is a default: title deeds may specify different rules (however, nothing to stop people to make different arrangements. It might be the case that owners have agreed to conditions in their title deeds.)  Don’t overuse T(S)A: common law still applies where T(S)A does not  If you cant find your answer in the act, you need to look back at the usual rules of property law as it doesn’t give an answer to everything that might happen in a tenement. 2004 acts gives some answers on common property parts of tenements. PARTS OF A TENEMENT SECTION 26(1) - A building or part of a building which comprises at least two related flats which are (a) designed to be in separate ownership and (b) are separated from each other horizontally [one upstairs floor at least] SECTION 29 – “flat”= includes any premises whether or not used for residential purposes and whether or not it is all on one floor. [shops on the bottom floor of a tenement flat are still flats i.e. no residential. “sector” 3D space which makes up part of the building Who owns what? Restatement of general law of ownership  Flats: registered owner

 Boundaries (s2): external walls, solum and roof – owned by the flat they relate to. External walls are owned by who owns that particular flat. Own your ceiling ‘ad medium felum’. If you own a ground floor flat then you own the ground underneath. The roof above the top flat is owned by the top owner. Air space around the flat is owned by the ground floor owner except the triangle above the roof.  Pertinents (s3): close, common parts – each flat owner owns a share of the common ownership. Stairwell is ALWAYS common. Section of roof and airspace above the stairwell is common also. If there is something that only serves your flat – you own it and vice versa. Buzzer system – the panel is serving in common ownership, and the wires in the walls are in common ownership – once they branch out to separate wires – they only serve you so you own them. Quite often in the title that the roof is in common ownership.  Garden ground (s3(3) – default that is owned by the ground floor flat owner as it is just part of the land. Again something like this is frequently changed in the title deeds. OBLIGATION ON TENEMENT OWNERS Restatement of law of ownership/common interest  S8: to provide/maintain support – to flats above you and corresponding obligation  S9: not to interfere with support  S17: to allow access for maintenance – interdict to obtain  S18: to insure for reinstatement value – you must have an insurance policy which would cover the cost of rebuilding the entire flat. This is because if it is destroyed (due to fire etc) each flat owner still owns the bit of airspace which represents the flat the owned. They couldn’t live in the airspace unless the person below rebuilds below.  S20: demolition does not affect ownership TENEMENT MANAGEMENT SCHEME What is it about? – introduced to keep building maintained and address surrounding issues  Taking care of strategic parts – certain parts effect everyone i.e. a leak in the top would affect the bottom eventually. WHERE PARTS ARE STRATEGIC, EVERYONE HAS A SAY IN MAINTAINING IT. EVERYONE ALSO HAS TO PAY A SHARE OF THE COST.  Control/Responsibility shared by all flat owners – UNUSUAL TO DIVIDE POWER OVER SOMEONES PROPERTY BUT PEOPLE DO HAVE TO HELP PAY. It doesn’t effect ownership – it is just that decision and payment for repairs is split by everyone. Scheme property (r1.2) – what the scheme considers part of the building. Find this in the first appendix of the act.  Solum (land it is built on), foundations, external walls, roof – subject to shared control/responsibility.  Parts of the building in common ownership

Scheme decisions  Subject matter (r3) –> repair and maintenance = this includes painting the walls and installing insulation. It doesn’t allow shared decisions to be made about IMPROVEMENTS it is just REPAIR AND MAINTENANCE.  Procedure (r2) -> every owner must be consulted. This can be done by calling a meeting. If this is done, everyone must get at least 48 hours notice. You could also go round knocking doors. Emails or social media can be used. Every flat gets one vote. If a majority votes in favour – the repairs can be carried out. You only need a simply majority. Once a decision is taking you must advise everyone what the decision is.  Cost (r4) – everyone must pay the share of the cost of the work, even if you voted against it. IN THE EXAM – USE SPECIFIC SECTION NUMBERS...