Chimney removal, who foots bill.

zepherous

The council own number 17 and 19. 
Number 21 and 23 are privately owned.
The council admittedly do not make inspections and react to reports by tenants to do repairs. Number 19 was empty for 7 years and due to council neglect there was water ingress. They blamed the chimney stack and cited emergency repairs to have it removed. They want number 21 and 23 to pay a quarter each. The chimney that was removed was not shared to 21 and 23, it was not on a party wall and 21 and 23 had no use from it in any way. It is now going to court as we have refused to pay the bill. The council are citing the burdens on the deeds but I feel they are outdated and do not qualify under the Tenements Act Scotland. We had a teleconference pre hearing and the judge asked if we were sure we wanted to go ahead as the council have expert witnesses, but I feel we are in the right. 

TELLIT01

zepherous said:

We had a teleconference pre hearing and the judge asked if we were sure we wanted to go ahead as the council have expert witnesses, but I feel we are in the right.

There is a difference between there being an obvious logic to your argument, and being correct in law.  If the court case goes against you the bill is likely to be far more than the equivalent of 1/4 of the cost of removing the chimney.  If you decide at this stage not to go to court will you still be liable for part of the council's legal costs?  I fear you may now be between the rocks and a hard place.

bolwin1

As mentioned above, they may well be right in terms of the law. If was you or the other private owner, I would be looking for bills you may have paid in maintaining any of the common areas that logically you thought were yours to bear. If you do have any, ask for these to be netted off against the cost of the chimney. 

fenwick458

how much is the quarter? have you had advice from a solicitor?

Ectophile

I'm not sure which part of the Tenemants Act you think is in your favour.  That Burdens Section seems pretty clear.  I wonder if the judge was dropping you a subtle hint.

anotheruser

Wait, so the council want number 21 and 23 to help with removing the chimney over number 17 and 19 just because they're part of the same building, despite the chimney being there does not affect number 21 or 23?

Something isn't right there.

That's like saying the council can claim half the cost of replacing the roof of the council house if I live in a semi-detatched house (council owning one property, private the other).

molerat

I assume you are referring to this part of the act

(5)For the purposes of this section, references to rights of common property being attached to flats as pertinents are references to there attaching to each flat equal rights of common property; except that where the common property is a chimney stack the share allocated to a flat shall be determined in direct accordance with the ratio which the number of flues serving it in the stack bears to the total number of flues in the stack.

In all honesty you need legal advice rather than going to court on a wing and a prayer.

markin

They have no flues in the stack so no liability.? But I'm not not paid 100 an hr to open a letter.

rob7475

I'm not sure if any legal protection on your home insurance would be able to advise on this?

I guess the council owned all four properties at one point which is why the deeds will be worded like that. It's in black and white though so I'm not sure you have a way out of it.

I'd be getting some expert legal advice before proceeding down the court route - if you lose, legal costs for the council will be potentially massive and you'll be liable for them.

Ectophile

molerat said:

I assume you are referring to this part of the act

(5)For the purposes of this section, references to rights of common property being attached to flats as pertinents are references to there attaching to each flat equal rights of common property; except that where the common property is a chimney stack the share allocated to a flat shall be determined in direct accordance with the ratio which the number of flues serving it in the stack bears to the total number of flues in the stack.

In all honesty you need legal advice rather than going to court on a wing and a prayer.

Good point.  But I would definitely agree with getting legal advice.

zepherous

TELLIT01 said:

zepherous said:

We had a teleconference pre hearing and the judge asked if we were sure we wanted to go ahead as the council have expert witnesses, but I feel we are in the right.

There is a difference between there being an obvious logic to your argument, and being correct in law.  If the court case goes against you the bill is likely to be far more than the equivalent of 1/4 of the cost of removing the chimney.  If you decide at this stage not to go to court will you still be liable for part of the council's legal costs?  I fear you may now be between the rocks and a hard place.

As it is a small claims court the costs would be no more than £150, thinking it is worth a fight at that.