Head 19: Tenements Flashcards
What is meant by a ‘tenement’?
Tenement includes modern blocks of flats and conversions (i.e. houses divided into flats).
How are tenements defined in T(S)A 2004?
For the purposes of T(S)A 2004 this is a ‘building or a part of a building which comprises two related flats at least two of which (a) are, or are designed to be, in separate ownership; and (b) are divided from each other horizontally (s. 26(1))
Horizontal division is crucial. If properties are divided vertically that is a terrace, not a tenement.
What are the default rules of tenement ownership?
However the rules of ownership in the Act are simply default rules - they are rules which apply only if the title deeds don’t provide otherwise (s 1). So an express term in the title will prevail over T(S)A 2004, s1(1).
These default rules are often varied to some extent in the title deeds. [Thus one of the difficulties of this area of the law in practice is that you can’t simply rely on what the Act says since often people will have opted out of the default rules and varied them.]
What is the Tenement Management Scheme?
It is part of the legislation which contains contains a set of model rules governing decision making and liability for costs relating to the building. As a default rule, this is normally subject to any real burdens?
What is the starting rule for tenements?
The starting point is that each person owns his flat.
Under s 2 there are special rules for the top and bottom flats.
How does T(S)A 2004 s29(1) define ‘flat’?
Defines ‘flat’ as including any premises. these do not require to be limited to residential use or confined to one floor. so the legislation applies to tenements in which some or all of the units are commercial.
How does T(S)A define bottom flat?
The bottom flat
⁃ “The bottom flat extends to and includes the solum[ This is defined in s 29 as “the ground on which a building is erected”. This is the ground under the tenement building.
Thus all the flats above the bottom flat effectively levitate since they don’t own any land.] under that flat” - s 2(4)
⁃ Under s 2(6) “Where a sector includes the solum (or any part of it) the sector shall also include, subject to subsection (7) below, the airspace above the tenement building[ Important point. So the owner of the ground floor flat owned down to the center of the earth and all the space above the tenement building.] and directly over the solum (or part).”
What do the middle flats own?
They don’t own the roof of the ground - they simply own their flat.]
What are boundaries?
Section 2 sets out the boundaries as between flats and other sectors (defined in s 29(1) as any three-dimensional space).
What is a sector?
A ‘sector’ is defined to mean (a) a flat (b) any close or lift or (c) any other three dimensional space (s29(1)).
What is the basic rule regarding boundaries?
The basic rule is that the boundary is the mid-point (‘median of the structure that separates them’) (s 2(1)); but a thing which wholly or mainly serves one sector (eg a door) is wholly part of that sector (s 2(2)).
[So the boundary of a wall between two flats is the midpoint of the wall. And the boundary of the floor between flats is the mid point of the joists (the supporting beams) between the flats.]
- External walls are owned exclusively by the sector in question (s 2(1)). This means that the front wall of the building is owned in sections by the owners of the front-facing flats.
⁃ Section 2(3)-(5) and (7) gives important rules for top flats, bottom flats, and closes.
What are pertinents?
Each flat has as a pertinent.
The most important things here are:
- closes
- lifts
- gardens] (s 3)
This is an additional right which attaches to your principle right of ownership of your flat. If you transfer ownership of the flat then you transfer the ownership of the pertinent too.
The main pertinent rights are the lift and close.
These will be covered in later weeks] (close or common stair) any part that serves it; and if more than one flat is served, the part is owned as common property (s 3(4)).
What are the rules concerning closes and lifts?
This general rule is stated separately for closes (defined in s 29(1) as ‘a connected passage, stairs and landings within a tenement building which together constitute a common access to two or more of the flats’) and for lifts in s 3(1), (2) [but a main door flat which takes entry directly from the street is excluded from this.]
⁃ Even if you own the ground floor flat then you have a right in common property of the close including the staircase. But under s 3(2) if a close or a lift does not afford a means of access to a flat then there shall not attach to that flat (e.g. A ground floor property), as a pertinent, a right of common property in the close or, as the case may be, lift (this means that ground floor flats don’t own lifts and ‘main door flats’ don’t own the close.)
What are the general rules regarding gardens?
Under s 3(3) the default rule is that the lowest flats in the tenement own the garden and they own it in sections - they own the bit nearest their flat. However, it is usual that back gardens will be varied in title deeds to be common property.
There is an exception for paths, outside stairs or other means of access which are covered by a more general rule, namely that a part of a building serving a flat is a pertinent of it [s3(4)].
[NB not related to tenements but there is a servitude convening hanging clothes in a garden!]
Who owns things like the flue, rhone, pipes, cables??
The Act has a very general provision in s 3(4) which states that if the thing in question only serves one flat then it belongs to that flat. If it serves two or more flats then it belongs to all of those flats as common property.
⁃ [So in relation to pipes, the parts of a pipe which only serve one flat will only be owned by the owners of that flat, but once this part joins the main pipe at a juncture, the pipe from there onwards will be common property.][ Need to look this up in Gretton and Steven chapter 15]
- NB it does not matter if one section of the thing serves one flat and another section another, e.g. An entryphone system is regarded as a single entity even though it has separate wires serving separate flats. [Because s3(4) confers a right of common property in and in the whole of the part]
