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JGM, Solicitor
Category: Scots Law
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Experience:  30 years as a practising solicitor.
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This is a question for a Conveyancing Solicitor in Scotland: I

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This is a question for a Conveyancing Solicitor in Scotland:
I bought and moved into a tenement flat in August. It now turns out that the burdens listed in the Land Certificate for common repairs are inaccurate and instead of 4 properties in the tenement, there are only 3. My share of repairs was said to be 25% before the sale but now my neighbours tell me that my flat used to be 2 flats and so I am liable for 50%. There doesn't appear to be any documentation regarding when the merging of the 2 flats took place or any amendment to the deeds. The neighbours say that I can pay 33% if I want, the flat above me 25% and they will cover the rest.
I see from the Tenement Maintenance Scheme agreement from the Scottish Government, that if the title deeds are incorrect and the % sum allocated for repairs from each property does not equal 100%, it should be shared equally (I do not think my flat is significantly bigger than the other 2 properties - one is a two storey house and the other flat is also 2 bedrooms like my own).
Is it sufficient legally for me to suggest that we follow the Tenement Maintenance Scheme in a formal letter and suggest my payment is 1/3 asking for a reply in writing, or do our letters need to be noted somewhere? I would like to keep legal costs down if I can because major repairs are required to the roof.
Thanks for your help,
Thank you for your question.
From what you say, unless your flat is substantially bigger than the others then the costs would be shared equally under the following rules of the scheme:
"4.2 Maintenance and running costs
Except as provided in rule 4.3, if any scheme costs mentioned in rule 4.1(a) to (d) relate to
(a) the scheme property mentioned in rule 1.2(a), then those costs are shared among the
owners in the proportions in which the owners share ownership of that property,
(b) the scheme property mentioned in rule 1.2(b) or (c), then
(i) in any case where the floor area of the largest (or larger) flat is more than one
and a half times that of the smallest (or smaller) flat, each owner is liable to contribute
towards those costs in the proportion which the floor area of that owner's flat bears
to the total floor area of all (or both) the flats,
(ii) in any other case, those costs are shared equally among the flats,
and each owner is liable accordingly.
4.3 Scheme costs relating to roof over the close
(a) any scheme costs mentioned in rule 4.1(a) to (d) relate to the roof over the close, and
(b) that roof is common property by virtue of section 3(1)(a) of this Act,
then, despite the fact that the roof is scheme property mentioned in rule 1.2(a), paragraph (b) of
rule 4.2 shall apply for the purpose of apportioning liability for those costs."
So each flat would have a 25% share.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.


Thank you for your reply. I have already drafted a formal letter to my neighbours stating that I am happy to pay one third of the common maintenance costs per the Tenement Management Scheme and quoting the reasons why.

My question is really whether a series of formal letters between us would be seen as legally binding for in the future (owners may change etc.) Would the fact that we had agreed our own maintenance contract this way for these repairs have set a precedent for future repairs? If not, I suppose I would be possible to set up the agreement again with new owners? I would welcome your advice on this. Below is the body of the letter I plan to send to my neighbours:

"I understand, now that I have moved into my property, that the information regarding common maintenance arrangements for our tenement (listed under ‘Burdens’ in the present Land Certificate) is defective due to the fact that there are now three properties instead of four within the building. The Land Certificate allocates expenditure between the four properties as one fourth per property but as in reality there are now only three properties this would only equal 75%.

Following advice from the Citizens Advice Bureau, I would like to suggest that we follow the guidelines in the Tenement Management Scheme (part of the Tenements (Scotland) Act 2004) which was produced to help in such cases.

From the article on the Scottish Government website titled ‘Management and Maintenance of Common Property’, Introduction:

‘9. The Tenement Management Scheme is a default management scheme which will ensure that every tenement in Scotland - existing and built in the future - will have proper rules for maintenance and management. If existing tenements have defective title deeds or if their title deeds are silent on a particular matter, the rules of the Tenement Management Scheme will be applied to them. Thus, if the title deeds say how expenditure is to be apportioned, but the shares do not add up to 100%, the new law will supersede what is in the title deeds, but if the title deeds make proper provision for the allocation of costs, they will prevail. For the future, developers will either have to make their own rules or the rules in the Tenement Management Scheme will apply.’

‘25. If your title deeds allocate expenditure between the various flats, but the total does not add up to 100%, rule 4 of the Tenement Management Scheme will apply and it will allocate the costs between the flats equally unless one flat is much larger than the others. This is explained in more detail inChapter 15.’

From Chapter 15:

‘122. The cost of maintaining other scheme property is shared equally among the owners, except where the floor area of the largest flat is more than one and a half times the size of that of the smallest flat. Then the costs are allocated according to the floor area (rule 4.2(b)).’

36a Queen Street occupies the whole top floor of my flat with the exception of my bathroom and*****is a two storey property which has a room above my bathroom so I do not believe my flat to be more than one and a half times the size of either property.

I, therefore propose that my proportion of maintenance expenditure to be one third of the total expenditure required.

I would be grateful if you would confirm acceptance of this proposol in writing if you are in agreement."

Thankyou for your help


Any agreement is only binding if it is a heritable deed, such as a Deed of Conditions registered in the Lsnd Register. An exchange of letters isn't enough. Your Solicitors would have to draft and register a deed for this to be binding on successive proprietors.
Why are you offering a third liability for your flat when it should be a quarter?
Customer: replied 3 years ago.

Thank you, ***** ***** owners we can have a letter drafted and registered on the Land Register if one of the properties goes on the market in the future. In the meantime, I think I will send my letter to my neighbours as the roof repairs are urgent and, having just moved in, I want to keep costs down until the repairs are completed.

I am offering a third liability because there are now three properties within the tenement, not four (the Land Certificate has not been updated and mentions four properties), and, from the Tenement Management Scheme, the advice is to share the liability equally between the properties unless there is a big discrepancy in size. I don't want to go to the expense of a Surveyor measuring the floor space of the three properties to check this as they seem comparable in size to me, however, I do want to make it clear to my neighbours that I am not liable for 50% of the costs just because they tell me my flat used to be two flats. Do you think it is worthwhile for me to continue to send my letter? This was suggested by my Solicitor involved in the sale when I asked his advice.

Thank you

Sorry I've reviewed you're original question and see that. A third is correct.
It's ok to send your letter but you should really get this regularised by way of a deed. A letter is no use as it only binds current proprietors, not proprietors in all time coming, unless you're happy just to go with the TMS.
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