Scotland's tenement law

MissMud

Does anyone out there know whether the roof space of a tenement block is owned by all owners. There seems to be such conflicting info /opinions with regard to whether you can take over this space to enlarge your flat (if you own the top) and then whether you take on the 'burden of the roof' in cases of renewing or repairing it.
These properties are so old that it wouldn't have been a consideration to extend into that space when they were built - 1880 - the Deeds have to be consulted and from what I can tell only show the outline of each flat and tell you walls, solum and roof are to be maintained by all. BUT if you take what was 'common space' away and claim it to increase your flat significantly does that not mean you should be paying compensation to the other owners and do all Deeds need to be amended to reflect this change of space.

wallacebob

I had to ask my solicitor about this. A ruling was made that the upper flat, in the absence of any clear ownership of roof space, has title. The maintenance or repairs to roof is usually clearly shown as shared, and remains shared. The roof space maynot be shown as common, but access is normally required to roof for repairs, so any owner that converts roof space would still have to allow access through roof lights. Not a good idea if it's a bedroom!
Edinburgh planning would have to involved, and I don't think they would allow larger windows or alterations on front elevations, and fire regs would be problem, due to exit or firedoors. So you can use space for store, not living, I think.
The issue of changes to deeds may be problematic; I was advised not to ask the question, if I didn't want the answer. In other words ignorance can be bliss, although not a defence. As long as the alterations don't effect me, I will leave well alone.
I would be interested if there has been any cases on this??

doe808

MissMud wrote: »

Does anyone out there know whether the roof space of a tenement block is owned by all owners. There seems to be such conflicting info /opinions with regard to whether you can take over this space to enlarge your flat (if you own the top) and then whether you take on the 'burden of the roof' in cases of renewing or repairing it.
These properties are so old that it wouldn't have been a consideration to extend into that space when they were built - 1880 - the Deeds have to be consulted and from what I can tell only show the outline of each flat and tell you walls, solum and roof are to be maintained by all. BUT if you take what was 'common space' away and claim it to increase your flat significantly does that not mean you should be paying compensation to the other owners and do all Deeds need to be amended to reflect this change of space.

See a solicitor. I could give you a page and a half on this, and you wouldnt be any closer without sight of the title deeds. Plus a new tenament scotland act is coming into play, and may affect.

doe808

wallacebob wrote: »

I had to ask my solicitor about this. A ruling was made that the upper flat, in the absence of any clear ownership of roof space, has title. The maintenance or repairs to roof is usually clearly shown as shared, and remains shared. The roof space maynot be shown as common, but access is normally required to roof for repairs, so any owner that converts roof space would still have to allow access through roof lights. Not a good idea if it's a bedroom!
Edinburgh planning would have to involved, and I don't think they would allow larger windows or alterations on front elevations, and fire regs would be problem, due to exit or firedoors. So you can use space for store, not living, I think.
The issue of changes to deeds may be problematic; I was advised not to ask the question, if I didn't want the answer. In other words ignorance can be bliss, although not a defence. As long as the alterations don't effect me, I will leave well alone.
I would be interested if there has been any cases on this??

The Lands Tribunal for Scotland has some "interesting cases"
http://www.lands-tribunal-scotland.org.uk/records.html

MissMud

Thanks to you both for your advice and references to look up - I have no legal background so ought to tread carefully but I'll definitely look at the Lands Tribunal.

kayl

Sorry to butt in, but I am a solicitor, and the Lands Tribunal cases will not really be relevant now to you. The first step is what is in your title deeds. If there is nothing in there about ownership of the roof space ( what is the norm in Glasgow titles and what is usual in Edinburgh titles are completely different!). If your titles do not deal with the question, the rules of the Tenement ( Scotland) Act will then apply.
The solicitor who acted for you in the purchase should be aware of the position from their examination of title, and will eb able to confirm without there being any fee

MissMud

Wow ! thanks again ... such nice people here ... in case anyone else has any further info/advice [ very much appreciated ] property is in Edinburgh, I'm not the person who has taken over the roof space, just having to deal with the costs of repair. I've been told Tenement Act says ' if a property is 50% larger than the smallest flat then costs should be divided by floor area rather than number of flats ' ... as top flat is definitely using as living space and not storage is this enforceable ? When does new Tenement Act come into force.

kayl

There is not a new act - the act in question is 2004, but not all of it is yet in force. It provides that, in the absence of anything to the contrary in the deeds, the top floor flat extends to, and includes the roof, so it is presumably on this basis that they have taken over the loft.
The commentary on the act says this :
Costs are divided equally between flats unless 1 flat has more than 1½ times the floor area of the smallest, in which case some costs (generally those relating to repairs rather than management) are divided according to floor area. The definition of floor area in this case is the total floor area bounded by the flat walls excluding any basement or loft used only for storage).
The costs, which are divided pro rata by floor area, are:
• Costs relating to scheme property
• Costs of demolition
• Non recoverable costs
Management costs and the costs of maintaining mutual property will be paid for equally by all owners.
On this basis, if you can prove that they are fully occupying the loft, you have a strong argument for the pro rata rate applying to repair costs. I take it that you don't have factors to deal with this for you?

MissMud

There are no factors. I saved a copy of the schedule at time of sale which clearly shows the upper rooms as bedrooms and en suite, but it's 2 years old would this be sufficient as proof.

kayl

Yes - seems to entirely factual, not a matter of opinion

ganetplanet

My Deeds do show a share to contribute to common repairs including roof, but no mention to roof space. Do the Deeds have to be that specific as we have similar situation here, all being asked to pay towards repairs although top flats are well over the[FONT=Courier New, monospace] "1½ times the floor area of the smallest[/FONT]" after converting roof space to living space. Does this mean I should ask top flats if their Deeds identify the roof space as theirs. As a pro rata on floor area would reduce my contibution significantly.