law of the tenement Flashcards
Law of the tenement here ,means…
laws of flats
common law
sole ownership of flat itself
Common ownership of stairs/halls/central water etc
Why do we need Tenements (S) Act 2004?
- clarification
- manage repairs: common law needs everyone to agree to repairs of commonly owned areas
2 provios both in T(S)A
1) restates common law (so if cant get answer fall back on common law, still good)
2) default rules (can be differed through the deeds, check here first)
Definition of tenement? s26(1)
” A building or part of a building which comprises at least two related flats which are a) designed to be in separate ownership
b) separate from each other horizontally (vertically doesn’t apply e.g. terraced houses)
S29 defines ‘flat’ and ‘sectors’
flat: shop on bottom counts, can be over more than one floor
sectors: any 3 dimensional space, stairwell, lift, cellar or attic all count
Person who owns the flat is…
the person registered
Ownership of flat gives you the 3 rights of ownership
- usus
- fructus
- abuses
Boundaries are shared s2
s2
you own what touched you flat (e.g. wall, roof)
So person on top floor owns roof above them (commonly caried in deeds: common for everyone to share own roof in glasgow)
Who owns the airspace above the building?
The owner of the bottom flat as they own the area from cent of earth to heavens
Common parts : Pertinence : s3
Common parts to be in common ownership therefore are pertinants to private ownership
Pertiants means
Rights attached to your ownership that are heritable but extended beyond your property
Who by default owns the garden?
s3(3)
Person on ground floor, usually varied in deed to common ownership
Wall next to stairs?
Person who owns flat next to it owns t to the midpoint then common ownership
Obligations on tenement owners: s8
s8: provide support to other flats that structurally rely on them
(positive duty: need specific implement to ensue it)
Obligations on tenement owners: s9
not to interfere with support (negative duty)
if someone was going to breach this need interdict to stop them
Obligations on tenement owners: s17
need to provide access for maintenance
Obligations on tenement owners: s18?
s18
must have buildings insurance that covers the reinstatement value
Obligations on tenement owners: s20?
demolition of building doesn’t affect ownership, still own section of airspace.
Big innovation of the act?
Tenement management scheme
Basically what does tenement management scheme say?
Regardless of ownership everyone has duty of repair for strategic bits of building
Scheme propert: Rule 1.2
- anything in common ownership
- foundations, external walls, roof and ground below (solum)
Scheme decisions: subject matter (rule 3)
- decision to repair
- to appoint manager to deal with these problems
- to insure scheme properrty
Only these decisions can be made under scheme rules
How to make decisions about use of common property?
Fall back on common law
Procedure of scheme decisions? Rule 2
Rule 2:
- need majority tot agree
- meeting called needs 48hours notice
- need majority f owners (not just those at meeting) to agree
- non attending members need 28 days notice to object
Result of decision
If procedure properly followed then everyone shares cost regardless of vote
If answering exam on this
Remember to refer to the statute and the rules, not just general idea
Answering qu on scheme property
- is it part of the tenement
- is it scheme property
- what procedure must be followed
- what is the result of this
- what can client do?
