Repairing Standard: statutory guidance for private landlords

7. Common parts of flats and tenements

7.1 Difficulties can arise in flats and tenements as (i) the extent of a private landlord’s responsibility may not always be clear and (ii) other occupants of the building are unaware of their responsibilities or unwilling to take them seriously. Owners should refer to their title deeds to ascertain exactly where responsibility for repairs to common parts of the building lies and how the costs of any necessary repairs should be allocated between owners. If this is not clear, the Tenement Management Scheme sets out procedures for flat owners to follow when making decisions about maintaining and repairing common parts in a mixed tenure building.

7.2 There is information about the Tenement Management Scheme and the rights and responsibilities of owners in the guidance on Common Repair, Common Sense. Owners can also get impartial advice on common repairs from Under One Roof at Under One Roof.

7.3 In legislation, these buildings are referred to as tenements. This includes both traditional tenements, with a common stair, and other kinds of flats. The statutory definition is any building with two or more separate flats which are divided from each other horizontally.

7.4 Parts of a tenement that are the shared responsibility of all owners, are referred to as “common parts” or “scheme property”. This includes:

• the ground on which the tenement is built,
• the foundations,
• the external walls,
• the roof, including the rafters and any structure supporting the roof,
• the part of a gable wall that is part of the tenement building, and
• any wall, beam or column that is load-bearing, and
• any part of the tenement that the title deeds say is the common property of two or more owners, or that must be maintained by two or more owners (provided that the deeds of the different flats are consistent).

7.5 Parts of a tenement that are the responsibility of individual owners include:

• parts such as doors and windows, skylights, vents or other openings that serve only one flat,
• any chimney stack or flue that serves only one flat, and
• any extension that serves only one flat.

7.6 The rules for making decisions on work to common parts is set out in title deeds or in the Tenement Management Scheme. The general rule is that work to repair or maintain a building requires a majority decision, but work to improve or alter a building requires a unanimous decision. There are some exceptions to this, for example, installing insulation can be done on a majority decision. Where a majority decision is allowed, the result is binding on all the owners, but there is a right to appeal to the Sheriff on the grounds that the decision is not in the best interests of all the owners or is unfairly prejudicial to one of them.

7.7 Under section 15 of the Housing (Scotland) Act 2006, the Repairing Standard includes common parts of a building if:

(a) the landlord is responsible as owner for maintaining it, and

(b) a part of the building which the tenant is entitled to use is adversely affected by the disrepair.

7.8 Under section 16 of the Housing (Scotland) Act 2006, a landlord is not required to carry out any work on common parts if they cannot get the rights or consent needed to do it. The legislation requires a landlord to take reasonable steps to get the rights or consent, but they are not at fault if this cannot be done.

7.9 A landlord is not required to carry out work if that work requires a majority decision of all owners and the majority is not in favour of the work being done. Landlords are expected to support reasonable proposals to carry out work that is needed to meet the Repairing Standard.