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Property Law - Lecture 4 (Part 2) - Tenements (Scotland) Act 2004
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Lecture notes for property law with case descriptions. Author achieved a first-class grade in the module.
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Lecture 4 (Part 2) – Tenements (Scotland) Act 2004Changed the rules of maintenance of common parts of a tenement so that instead of unanimity being
required, all that is required is for a majority of the flats within a tenement to agree to allow the repairs
to be carried out. The common parts rule is where everybody agrees to that work being carried out.
That led to the case of problems for tenements and repairs for common parts of tenements.
Definition
• The definition of tenement is contained in s 23:
• (1) In this Act, “tenement” means a building or a part of a building which comprises two
related flats which, or more than two such flats at least two of which—
(a) are, or are designed to be, in separate ownership; and
(b) are divided from each other horizontally,
and, except where the context otherwise requires, includes the solum and any other land
pertaining to that building or, as the case may be, part of the building; and the expression
“tenement building” shall be construed accordingly.
Horizontal division is crucial. If properties are divided vertically, that is a terrace, not a
tenement. The definition is broad and is capable of embracing both a modern multi-storey
apartment block and a substantial Victorian dwellinghouse which has been converted into an
upper and lower apartment.
Boundaries
• The Act applies in the same way as the common law it replaces, that is only where there is
nothing in the title to the tenement which provides otherwise. (s 1).
The tenements act will only operate if the title deeds are silent about common repairs etc.
Fall back set of rules where there are no rules set out in the title deeds.
• s 2(1) provides that where there is a common boundary between ‘sectors’ (flats within the
tenement and common areas), then each sector has ownership to the median point, and that
if there is no such common boundary, will extend to the solum or any outer surface of the
building.
• s 2(3) a top flat includes the roof. (does not entail that they are obligated to cover all costs of
repair of the roof, triangle rule).
• s 2(4) a bottom flat includes the solum. Solum means the ground on which a building is
erected.
• s 2(5) the common close includes the roof above and the solum below it.
• s 2(6) the ‘sector’ (flat) owning the solum owns the airspace.
• s 2(7) where the roof slopes, the roof owner owns the airspace up to the highest point of the
roof.
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