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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12187
Experience:  30 years as a practising solicitor.
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We are one of five flat owners in a converted townhouse in

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We are one of five flat owners in a converted townhouse in Glasgow, Scotland. We rent this flat out and live elsewhere.
We put the flat on the market to sell in February 2013 because we had lost circa 60% of our household income through job loss in August 2012.
We courteously advised our co-owners of the flat being on the market. We stated we would make clear to owners that work was required on the roof (common scheme property) and put it at £200/month level of cost which would be probably 25% on top of any mortgage so significant enough for a potential buyer to not underestimate the scale of what might be required. Shortly afterwards 3 out of the 5 owners (actually 2 owners + tenant who is son of an owner) got together in isolation to meet and vote on committing to £160,000 of roof repairs with the aid of a 50% grant which they were not completely aware of all the conditions nor certain they would get the grant at all.
This made our flat unsalable unless we deducted £32,000 from the price and even when we did that the buyers couldn't get mortgages because of the uncertainty created. Because of this we ran out of cash towards the end of 2013 and had to sell our actual home under duress at £60,000 below it's valuation.
It took 30 months before a grant was achieved and any work was begun yet we were damaged by their action and had to sell our home as a result.
What more naturally could have happened is that we would have declared to any buyer there was maintenance needed and one option being considered could involve a grant and cost of £16,000 with a 50% grant approved. We would have negotiated the flat price accordingly and we would not have been damaged in any way and the other owners would still be able to pursue their plan or not as was best depending how things seemed to be working out.
Hindsight tells us that what we were being asked to join up to by the original decision was one where they pay £16,000 each and we pay between £32,000 and £40,000 which we don't feel is a viable scheme decision based on "maybe if we can get a grant".We've lost up to £100,000 as a result of this and wonder what our course to recover any of it might be either ruled by title and tenements Scotland act or other legislation that stops people doing this to us. It doesn't seem right they can tie us in like that and we become passengers and can't get out. We fear they will now eventually try and sue us for the cost anyway in addition as they have done the work and have circumvented all the points where you would go to a sheriff for a ruling that might have returned in our favour.
How do we sue or claim any of our losses ?

Can you upload your title sheet for the flat please. You can send it to***@******.*** and ask the moderator to forward it to JGM.

Customer: replied 1 year ago.
Have just emailed the title deed sheet as you askedDavis

Thank you, I'll look out for it.

I have read your title. I understand that you are very upset about this, but in terms of the title of a majority decide on a scheme of common repairs, all proprietors are bound by that and I don't know of any law or statute that would help you. The grant situation in Glasgow would always be uncertain but it wouldn't stop a majority making decisions in terms of the title deeds. I'm happy to discuss further as I understand your frustration but I don't consider the proprietors have done anything wrong here.

Customer: replied 1 year ago.
That's a real concern. We've had common property 7 times and never any issue with co-owners. Is the law intended to allow colluding co-owners to effectively prevent you selling your property (forever !). If so would it not be something that should be stated during searches etc etc as its actually a bigger concern than most other issues that might turn up in conveyancing. Lets flip the question, If we had the resources, and bought 3 of the 5 flats to then deliberately hold one of the other two owners under duress/stress/financial stress you are saying the law (all law) supports assists us to do this ? This is unusual in it is a majority who are misbehaving not one owner not paying as seems to be the only issue TMS considers.

In what way are they misbehaving? Are they not just agreeing that repairs are needed to the property? Note this is not TMS as there is a mechanism, it, majority decision to undertake common repairs, in the title to the property so TMS isn't applicable. This is a heritable right laid down by the title deeds.

Customer: replied 1 year ago.
Can anyone predict what repairs are needed 30 months from now ? We can't so would have no reason to commit other owners to such an unknown. Repairs may have been needed (never disputed) but not in any way that hasn't been dealt with 30 months later so why prevent a co-owner (us) selling 30 months earlier when they will pay their share of the largest figure (even if not then undertaken) in their sale process rather than locking them in as passengers to their detriment. That certainly feels like singling out and misbehaving. Our understanding from other properties and factors, which have each had major common repairs undertaken in the past is consult and involve all owners, examine all options then act. Never any reason to block a sale as the seller must declare status. If a question is asked that isn't in the title then TMS is referred to. So "How do you construct a majority" isn't in our title but TMS guides you what to do. What is being described isn't "common" as any owner can be frozen out of any and all involvement (except paying) based on what you describe. Is that truly intended by such heritable rights as it would significantly devalue the property market if actually publicly known ? Are you perhaps not considering the sheriff has powers to over rule if any owner is impacted significantly differently from the others in TMS? How can TMS not apply ? That seems the key to this and devastating for the market if as black and white as you are describing.
Customer: replied 1 year ago.
btw - I will pay to ask another question of that is preferred ?

TMS applies if there is no procedure laid down for the management and execution of common repairs. In your title there is. The title lays down a procedure for making decision so the Act doesn't apply.

Customer: replied 1 year ago.
You seem to be confirming any majority working in complete isolation can make enforceable decisions where the individuals in the minority or any individual of the minority has to pay significantly more for the repairs than those individuals in the majority ?. Hard to imagine there isn't something legal that stops that happening ? Is it not wide open to misuse ?

No I'm not saying the minority have to pay more. I'm saying that the majority can agree the repairs. The title deeds say what the division of costs are.

Customer: replied 1 year ago.
Ah does it say equal share so there is the defence against any lawsuit. Can't be binding because in the circumstances at the time we would have paid at least double what the others were going to pay. Sounds more sensible for sure.

You can't be asked to pay more than your one fifth share of the costs, less any grant that may or may not have become available.

Customer: replied 1 year ago.
Really struggling with this as you can imagine. Is there not something out there that prevents this damaging people in this way. Is 30 months a reasonable time to execute a decision for something that is "necessary" ? What is being described means a majority of owners could render anothers flat unsaleable forever by making any decision about common repairs they choose and sitting on it forever. We never had the chance to approach the sheriff within 28 days at the time because it would damage any sale process by being a dispute and it took much longer than that for GCC to make clear all the conditions (that cause the extra cost for us when selling) and mean we would run out of time/cash before it could ever happen. The decision was based on no information and flawed information. Aimed at getting at us for sure demonstrated by receiving an offer from them in 2015 (via GCC) that they would pay our share if we sold up !!! We have glowing references as co-owners elsewhere. Will a sheriff take any account of this malevolent behaviour towards us, weve paid the cost about 6 times over so far.

I'm not sure that you could go to the sheriff so long after the event. This is a chain of events which is not unique where expensive repairs are needed to tenement properties in Glasgow. Some of the owners get together in contemplation of a repair, they get a quote and all of a sudden a selling owner is stuck with the concept of proposed repairs which have to disclosed to a potential purchaser and can affect the purchase price or even make the property unsaleable. Unfortunately, there is no court that will find a repairs burden by majority unreasonable where there is a need for the repair to be done. If you think that the process was carried out recklessly or negligently by the other owners then you will have to state why you have a legal and relevant case for that, perhaps in the context of an action for damages against those against whom you have these issues.

JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.
But what happened to involving all owners ? It's surely not mandatory that you don't involve owners. We genuinely didn't mind, indeed expected and accepted the price being impacted by £16,000 which is the correct (ish) share and that would have worked out just fine had they not interfered in our selling which was already underway. For the sake of waiting a few weeks (out of 30 months) they would have had a new owner fully informed and compensated for the full scheme and able to join them in a grant on equal terms. All this explained to them yet ignored for the next 30 months. Then they ask us to sell up later when we were selling already and they stopped us ??. Its the uncertainty of grant award and its status and the burden/loan placed on the title deeds before all others that stops people getting mortgages. The fact GCC don't ask for the grant back is immaterial, every buyer will ask the burden be removed from title so you have to pay it back if you want to sell and therefore either way you pay £32k either to the buyer or half/half to buyer/GCC. This isn't especially common as we haven't been able to find any person or group on any social channel who is campaigning or complaining about it. Sounds like it may be something for the local MP and court of public opinion (The Sun/Herald/Daily Mail) as a public interest story as it is only malicious behaviour that causes this, supported by the law in your opinion. Thanks for your steer and advice, we may need to become the Scottish version of Erin Brockovitch :-). We have nothing left to lose. If you know any groups who have experienced this same issue we would appreciate a steer towards them. Thankyou very much for your patience. We have another related question to ask and will do so separately.