Head 20: Communities

Question 1

What is a community?

Answer 1

A community is a group of properties which are regulated by community burdens (the real burdens which bind all the properties within a community and are mutually enforceable). So it applies to any group or 2 or more properties (“units”) regulated by burdens imposed under a common scheme and which are mutually enforceable (in other words, community burdens).
⁃ NB one tenement communities are excluded (s 31A)

Question 2

s 25-31 TC(S)A 2003

Answer 2

While in relation to tenements we have seen that the law provides a series of default rules. Other communities (i.e. non-tenement communities) have an equivalent but much more simply regime of default rules in s 25-31 TC(S)A 2003 (thus they are subject to what the title deeds / community burdens say).

Question 3

What are the two basic rules?

Answer 3

There are basically 2 rules:
⁃ 1) Under section 28: a majority of the houses may agree to appoint a manager or a factor, conferring specified powers and dismiss a manager. Any renumeration paid to the manager is shared equally (s 31)

⁃ 2) Under section 29: where there is a community burden requiring repairs or maintenance (e.g. a burden requiring a share of the costs of repairing a private road) the decision to carry out a repair can be made by a majority and there is also provision for paying everybody in advance [NB there is not an obligation to repair]

Question 4

Section 30

Answer 4

all owners are bound by decisions under ss 28 and 29, and successors.

Question 5

Sections 25-31 of the Title Conditions (S) Act 2003

Answer 5

This sets out default rules for communities, ie (ss 25, 26(2)) for
• any group of 2 or more properties (“units”)
• regulated by burdens imposed under a common scheme and which are 
mutually enforceable (in other words, community burdens). But one-tenement communities are excluded (s 31A). 
The rules are subject to contrary provision, by community burden. They are a much diluted version of the TMS.

Question 6

What is a development management scheme (DMS)?

Answer 6

The DMS is ornate and only suitable for large developments. It can be used for any group of properties, whether tenemental or non-tenemental (or a mixture of both)

The central feature is that the development is run by a manager acting on behalf of an owners’ association, which is itself a body corporate. Provision is made for annual budgeting, service charges, annual general meetings, inspections and maintenance, and so on. The DMS – whether as enacted or with variations – is applied to a development by a deed of application (2003 Act s 71).

Where the DMS applies, the TMS does not.

Question 7

Where is the DMS provided for and where is it set out?

Answer 7

The DMS is an optional scheme for management and maintenance provided for by part 6 of the Title Conditions (S) Act 2003.

The scheme is set out in the Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009 (SI 2009/279).