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The tension of tenements & why everybody needs good neighbours

For almost thirty years, the residents of Ramsey Street have been reminding us that “everybody needs good neighbours”. But the sunny suburbs of Melbourne are a long way from the tenements of Edinburgh, and recent comments by Green MSP Alison Johnstone highlight an issue which may create real tension between neighbours. Ms Johnstone has drawn attention to cases where the owners of top floor flats have extended their flat into the roof space of the tenement, converting one or two bedroom flats into much larger properties. The common question for the owners of other flats in the tenement to ask is “Can they do that?” In many cases, the answer is yes.A tenement is any building divided horizontally into two or more flats. This includes everything from traditional Victorian tenements to modern purpose-built flatted developments. In all tenements, there will be areas or parts of the building which are used by the owners of multiple flats. Typical examples include the common close, roof, rhones and downpipes. But who owns these parts of the tenement? And who is responsible for maintaining them? Owners looking to answer these two questions should firstly consult their title deeds. In most cases, these will provide at least partial answers to both questions. Often, the titles will provide that certain parts of the tenement are owned jointly by the owners of some or all of the flats in the building, and will specify how this ownership is split. This is often the case with both the roof and roof-space. The titles may also indicate who is responsible for the maintenance of shared parts of the tenement, and how maintenance costs should be divided. However, it is rare for the title deeds to provide all the answers. Indeed in some cases, they may be completely silent. Where the titles deeds do not provide an answer, the Tenements (Scotland) Act contains comprehensive default rules for the allocation of ownership within a tenement and for determining maintenance liability. This article will focus on how the 2004 Act applies to the roof and roof space of a tenement.Where the title deeds of a tenement are silent on the matter of who owns the roof and roof-space, the 2004 Act provides that both form part of the top floor flat. In these circumstances the owner of a top floor flat is perfectly within their rights should they chose to convert the roof space into extra living accommodation, subject to acquiring the appropriate building warrants and consents. There is no duty to obtain consent from the owners of the other flats in the tenement, even where the roof space has in practice been used as communal storage space. 
The owners of the other flats in the tenement will however continue to be responsible for maintaining the roof of the building, as long as the titles do not provide otherwise. Decisions regarding roof maintenance may be taken by a majority of owners, and any such decision is binding on all owners whether or not they agree. The cost of repair and maintenance to the roof will be divided equally, except where the floor area of the largest flat is more than one and a half times the floor area of the smallest flat, in which case the cost will be divided according to floor area. Owning the roof and roof-space may present the opportunity for the owners of top floor flats to extend their flats, increasing both living space and potential rental income. This may not be a welcome prospect for the owners of the other flats in the tenement, and some have expressed surprise and concern that they have no right to object to-or even be consulted on- such works. Ms Johnstone has called on the Scottish Government to review the Tenements (Scotland) Act in order to close this apparent legal loophole. What action, if any, the Scottish Government may take remains to be seen. However, it is important to remember that the 2004 Act rules only apply where the title deeds are silent. Concerned neighbours should therefore check their titles to determine whether the owner of the top floor flat does in fact own the roof space. If the titles provide otherwise, they will have no right to extend in to this space. It may lack the soap-opera appeal of Scott and Charlene’s romance, but roof-space conversations and the broader issues of ownership and repair within tenement buildings have the potential to create real drama where neighbours disagree. Anyone who is unsure of their rights or liabilities can contact the b+m Property Team for individual advice.