Building standards enforcement and sanctions: consultation outcome report

4. Section 21 – Occupation or use without a completion certificate

Q1 asked - Do you agree with the inclusion of holding owners accountable for new/converted buildings which are occupied illegally?

There was widespread support for this proposal. Among all respondents, 90% agreed to some extent; 60% strongly agreed and 30% agreed. Over four fifths (84%) of individuals agreed (56% strongly). All but one organisation agreed (96%, with 64% strongly agreeing), and all local authorities and professional associations were in favour.

Three quarters of respondents left a qualitative response in Q1, reiterating strong support for the proposal. Most highlighted that the change would result in improved enforcement, while other individuals and organisations expressed their agreement that the building owner, rather than tenants, should be held responsible. While there was widespread support for the proposal, some respondents asked for further clarification on certain issues.

The most prevalent theme was agreement with the proposal to improve enforcement and ensure buildings are not occupied without a completion certificate or temporary occupation certificate.

The second most prevalent theme in responses was explicit agreement that the building owner should be held accountable, hence the need for the change.

Scottish Government Response

Section 21 of the Building (Scotland) Act 2003 will be amended to enable a local authority to take action on owners and make them accountable where a building is being occupied illegally.

In relation to respondents request for further clarification on certain issues, these issues are addressed below.

• Whether owners should be accountable if squatters occupy a building.

The consultation refers to owners ‘allowing occupation’ e.g. for rent/short term lets without a completion certificate or temporary occupation being in place. In relation to squatters, the building would be considered as occupied and as such the owner is accountable for allowing occupation of the building.

• What work constitutes an alteration.

Section 21 is only applicable to the erection of a new building, a conversion or an extension. Work undertaken where it solely an alteration is not applicable.

Who is responsible for buildings with multiple owners, leased arrangements, or where local authorities mandate or undertake work if owners cannot, such as in tenement flats.

The building owner(s) are responsible. The local authority has existing powers under the Act to serve a notice, and take action where owners do not, and recover their costs by charging the building owner.

In most instances, the owner of the building will be identified on the title deeds which will enable the local authority to pursue the building owner(s). Where there are multiple owners, the title deeds of the building usually confirm how the costs should be shared between the owners. If this is not stipulated in the deeds or there are gaps in the deeds then the Tenement Management Scheme (TMS), schedule 1 of the Tenements (Scotland) Act 2004 applies.

Under the TMS, all owners pay an equal share of the costs of maintenance and repairs, except:

• when the work involves a part of the tenement that is not used by everyone (in which case only the owners of the flats involved should pay)
• when the floor area of the biggest flat is more than one-and-a-half times the floor area of the smaller flat (in which case repair costs should be split so the owner of the larger flat pays more)