Title Conditions (Scotland) Act 2003

Yn ddilys o 28/11/2004

Part 2 S Community burdens

Meaning, creation etc. S

25 The expression “community burdens” S

(1) Subject to subsection (2) below, where—

(a) real burdens are imposed under a common scheme on [F1 two] or more units; and

(b) each of those units is, in relation to some or all of those burdens, both a benefited property and a burdened property,

the burdens shall, in relation to the units, be known as “community burdens”.

(2) Any real burdens such as are mentioned in section 54(1) of this Act are community burdens.

Textual Amendments

F1 Word in s. 25(1)(a) substituted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 7 (with s. 33)

26 Creation of community burdens: supplementary provision S

(1) Without prejudice to section 2 of this Act, community burdens may make provision as respects any of the following—

(a) the appointment by the owners of a manager;

(b) the dismissal by the owners of a manager;

(c) the powers and duties of a manager;

(d) the nomination of a person to be the first manager;

(e) the procedures to be followed by the owners in making decisions about matters affecting the community;

(f) the matters on which such decisions may be made; and

(g) the resolution of disputes relating to community burdens.

(2) In this Act “community” means—

(a) the units subject to community burdens; and

(b) any unit in a sheltered or retirement housing development which is used in some special way as mentioned in section 54(1) of this Act.

27 Effect on units of statement that burdens are community burdens S

Where, in relation to any real burdens, the constitutive deed states that the burdens are to be community burdens, each unit shall, in relation to those burdens, be both a benefited property and a burdened property.

Management of community S

28 Power of majority to appoint manager etc. S

(1) Subject to sections 54(5)(a) and 63(8)(a) of this Act and to any provision made by community burdens, the owners of a majority of the units in a community may—

(a) appoint a person to be the manager of the community on such terms as they may specify;

(b) confer on any such manager the right to exercise such of their powers as they may specify;

(c) revoke, or vary, the right to exercise such of the powers conferred under paragraph (b) above as they may specify; and

(d) dismiss any such manager.

(2) Without prejudice to the generality of subsection (1)(b) above, the powers mentioned there include—

(a) power to carry out maintenance;

(b) power to enforce community burdens; and

(c) power to vary or discharge such burdens.

(3) If a unit is owned by two or more persons in common, then, for the purposes of voting on any proposal to exercise a power conferred by subsection (1) above, the vote allocated as respects the unit shall only be counted for or against the proposal if it is the agreed vote of those of them who together own more than a half share of the unit.

(4) The powers conferred by paragraphs (b) to (d) of subsection (1) above may be exercised whether or not the manager was appointed by virtue of paragraph (a) of that subsection.

29 Power of majority to instruct common maintenance S

(1) This section applies where—

(a) community burdens impose an obligation on the owners of all or some of the units to maintain, or contribute towards the cost of maintaining, particular property; and

(b) the obligation so imposed accounts for the entire liability for the maintenance of such property.

(2) Subject to any provision made by community burdens, the owners of a majority of the units subject to the obligation may—

(a) decide that maintenance should be carried out;

(b) [F2 subject to subsection (3A) below, require each] owner to deposit—

(i) by such date as they may specify (being a date not less than twenty-eight days after the requirement is made of that owner); and

[F3 (ii) with such person as they may nominate for the purpose,]

a sum of money (being a sum not exceeding that owner’s apportioned share, in accordance with the terms of the community burdens, of a reasonable estimate of the cost of maintenance);

(c) F4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) instruct or carry out such maintenance; and

(e) modify or revoke anything done by them by virtue of paragraphs (a) to (d) above.

(3) If a unit is owned by two or more persons in common, then, for the purposes of voting on any proposal to exercise a power conferred by subsection (2) above, the vote allocated as respects the unit shall only be counted for or against the proposal if it is the agreed vote of those of them who together own more than a half share of the unit.

[F5 (3A) A requirement under subsection (2)(b) above that each owner deposit a sum of money—

(a) exceeding £100; or

(b) of £100 or less where the aggregate of that sum taken together with any other sum or sums required (otherwise than by a previous notice under this subsection) in the preceding 12 months to be deposited under that subsection by each owner exceeds £200,

shall be made by written notice to each owner and shall require the sum to be deposited into such account (the “maintenance account”) as the owners may nominate for the purpose.

(3B) The owners may authorise a manager or at least two other persons (whether or not owners) to operate the maintenance account on their behalf.]

(4) Any notice given under subsection [F6 (3A)] above shall contain, or to it shall be attached, a note comprising a summary of the nature and extent of the maintenance to be carried out together with the following information—

(a) the estimated cost of carrying out that maintenance;

(b) why the estimate is considered a reasonable estimate;

(c) how—

(i) the sum required from the owner in question; and

(ii) the apportionment among the owners,

have been arrived at;

(d) what the apportioned shares of the other owners are;

(e) the date on which the decision to carry out the maintenance was taken and the names of those by whom it was taken;

(f) a timetable for the carrying out of the maintenance, including the dates by which it is proposed the maintenance will be—

(i) commenced; and

(ii) completed;

(g) the location and number of the maintenance account; and

(h) the names and addresses of the persons who will be authorised to operate that account on behalf of the community.

(5) The maintenance account shall be a bank or building society account which is interest bearing; and the authority of at least two persons, or of a manager on whom has been conferred the right to give authority, shall be required for any payment from it.

(6) If modification or revocation under paragraph (e) of subsection (2) above affects the information contained in a notice or note under subsection (4) above, that information shall forthwith be sent again, modified accordingly, to the owners.

[F7 (6A) The notice given under subsection (2)(b) above may specify a date as a refund date for the purposes of subsection (7)(b)(i) below.]

(7) An owner shall be entitled—

(a) to inspect, at any reasonable time, any tender received in connection with the maintenance to be carried out;

(b) if—

(i) that maintenance is not commenced by

[F8 ((A)) where the notice under subsection (2)(b) above specifies a refund date, that date; or

((B)) where that notice does not specify such a date, the twenty-eighth] day after the date specified by virtue of subsection (4)(f)(i) above; and

(ii) the owner demands, by written notice, from the persons authorised under subsection [F9 (3B)] above repayment (with accrued interest) of such sum as has been deposited by that owner in compliance with the requirement under subsection (2)(b) above,

to be repayed accordingly; except that no requirement to make repayment in compliance with a notice under paragraph (b)(ii) above shall arise if the persons so authorised do not receive that notice before the maintenance is commenced.

[F10 (7A) A former owner who, before ceasing to be an owner, deposited sums in compliance with a requirement under subsection (2)(b) above, shall have the same entitlement as an owner has under subsection (7)(b) above.]

(8) Such sums as are held in the maintenance account by virtue of subsection [F11 (3A)] above are held in trust for all the depositors, for the purpose of being used by the persons authorised to make payments from the account as payment for the maintenance.

(9) Any sums held in the maintenance account after all sums payable in respect of the maintenance carried out have been paid shall be shared among the owners—

(a) by repaying each depositor, with any accrued interest and after deduction of that person’s apportioned share of the actual cost of the maintenance, the sum which the person deposited; or

(b) in such other way as the depositors agree in writing.

[F12 (10) The Scottish Ministers may by order substitute for the sums for the time being specified in subsection (3A) above such other sums as appear to them to be justified by a change in the value of money appearing to them to have occurred since the last occasion on which the sums were fixed.]

Textual Amendments

F2 Words in s. 29(2)(b) substituted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(a)(i) (with s. 33)

F3 S. 29(2)(b)(ii) substituted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(a)(i) (with s. 33)

F4 S. 29(2)(c) omitted (23.10.2004) by virtue of Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(a)(ii) (with s. 33)

F5 S. 29(3A)(3B) inserted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(b) (with s. 33)

F6 Words in s. 29(4) substituted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(c) (with s. 33)

F7 S. 29(6A) inserted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(d) (with s. 33)

F8 Words in s. 29(7)(b)(i) substituted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(e)(i) (with s. 33)

F9 Words in s. 29(7)(b)(ii) substituted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(e)(ii) (with s. 33)

F10 S. 29(7A) inserted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(f) (with s. 33)

F11 Words in s. 29(8) substituted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(g) (with s. 33)

F12 S. 29(10) inserted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 8(h) (with s. 33)

30 Owners' decision binding S

Anything done (including any decision made) by—

(a) the owners in accordance with such provision as is made in community burdens; or

(b) a majority of them, in accordance with section 28 or 29 of this Act,

is binding on all the owners and their successors as owners.

31 Remuneration of manager S

Subject to any provision made by community burdens, liability for any remuneration due to a manager of the community (however appointed) shall be shared equally among the units in a community and each owner shall be liable accordingly; but if two or more persons have common ownership of a unit then—

(a) they are severally liable for any share payable in respect of that unit; and

(b) as between (or among) themselves, they are liable in the proportions in which they own the unit.

[F13 31A Disapplication of provisions of sections 28, 29 and 31 in certain cases S

(1) Sections 28(1)(a) and (d) and (2)(a), 29 and 31 of this Act shall not apply in relation to a community consisting of one tenement.

(2) Sections 28(1)(a) and (d) and 31 of this Act shall not apply to a community in any period during which the development management scheme applies to the community.]

Textual Amendments

F13 S. 31A inserted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 9 (with s. 33)

Variation, discharge etc. S

32 The expressions “affected unit” and “adjacent unit” S

In this Part of this Act a unit in respect of which a community burden is to be varied (“varied” including imposed), or discharged, is referred to as an “affected unit”; and “adjacent unit” means, in relation to an affected unit, any unit which is at some point within four metres of the unit.

33 Majority etc. variation and discharge of community burdens S

(1) A community burden may be varied (“varied” including imposed), or discharged, by registering against each affected unit a deed of variation, or discharge, granted—

(a) where provision is made in the constitutive deed for it to be granted by the owners of such units in the community as may be specified, by or on behalf of the owners of those units; or

(b) F14 . . . in accordance with subsection (2) below.

(2) A deed is granted in accordance with this subsection if granted—

(a) [F15 where no such provision as is mentioned in subsection (1)(a) above is made,] by or on behalf of the owners of a majority of the units in the community (except that, where one person owns a majority of those units, the deed must also be granted by at least one other owner); or

(b) where the manager of the community is authorised to do so (whether in the constitutive deed or otherwise), by that manager.

(3) An affected unit may, for the purposes of subsection (1)(a) or (2)(a) above, be included in any calculation of the number of units.

(4) For the purposes of this section, where a unit is owned by two or more persons in common a deed is granted by or on behalf of the owners of the unit if—

(a) granted in accordance with such provision as is made in that regard in the constitutive deed; or

(b) where no such provision is made, granted by or on behalf of those of them who together own more than a half share of the unit.

(5) This section is subject to section 54(5)(b) and (c) of this Act.

Textual Amendments

F14 Words in s. 33(1)(b) omitted (23.10.2004) by virtue of Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 10(a) (with s. 33)

F15 Words in s. 33(2)(a) inserted (23.10.2004) by Tenements (Scotland) Act 2004 (asp 11), ss. 25, 34(3), Sch. 4 para. 10(b) (with s. 33)

34 Variation or discharge under section 33: intimation S

(1) Where a deed of variation or discharge is granted under section 33(2) of this Act, a proposal to register that deed shall be intimated to such other owners of the units in the community as have not granted the deed.

(2) Such intimation shall be given by sending a copy of the deed, together with—

(a) a notice in, or as near as may be in, the form set out in schedule 4 to this Act; and

(b) the explanatory note which immediately follows that form in that schedule.

(3) Where a deed has been granted as mentioned in subsection (1) above, any person to whom intimation is given under subsection (2) above may, during the period of eight weeks beginning with the latest date on which intimation of the proposal to register the deed is so given, apply to the Lands Tribunal for preservation, unvaried, of the community burden in so far as constituted in favour of, or against, any unit not all of whose owners have granted the deed.

(4) Subsections (2) to (4) of section 37 of this Act apply to a deed granted as mentioned in subsection (1) above as they apply in relation to a deed granted as mentioned in section 35 of this Act but with the modifications specified in subsection (5) below.

(5) The modifications are that—

(a) references in the said subsections (2) and (4) to subsection (1) of that section are to be construed as references to subsection (3) above;

(b) the reference in the former of those said subsections to no application having been received under section 37 is to be construed as a reference to none having been received under this section; and

(c) the reference in the latter of those said subsections to section 36 of this Act is to be construed as a reference to subsections (1) and (2) above.

(6) For the purposes of subsection (4) of section 37 of this Act as so applied, if the person proposing to submit for registration a deed granted as mentioned in subsection (1) above is—

(a) an individual unable by reason of legal disability, or incapacity, to swear or affirm as mentioned in the said subsection (4), then a legal representative of that person may swear or affirm;

(b) not an individual, then any person authorised to sign documents on its behalf may swear or affirm,

and any reference in the said subsection (4) to the person so proposing shall be construed accordingly.

Prospective

35 Variation and discharge of community burdens by owners of adjacent units S

(1) A community burden may be varied or discharged by registering against each affected unit a deed of variation, or discharge, granted, in a case where no such provision as is mentioned in section 33(1)(a) of this Act is made, by or on behalf of the owners of the affected units and by or on behalf of the owners of all units (if any) which in relation to any of the affected units are adjacent units, except that this subsection—

(a) shall not apply where the burden is a facility burden or a service burden or where the units constitute a sheltered or retirement housing development;

(b) may expressly be disapplied by the constitutive deed; and

(c) is subject to sections 36 and 37 of this Act and to any determination of the Lands Tribunal.

(2) Subsection (4) of section 33 of this Act applies for the purposes of this section as it applies for the purposes of that section.

36 Variation and discharge under section 35: intimation S

(1) A proposal to register under section 35 of this Act a deed of variation or discharge shall be intimated to such owners of the units in the community as have not granted the deed.

(2) Such intimation may be given—

(a) by sending a copy of the deed together with—

(i) a notice in, or as near as may be in, the form set out in schedule 5 to this Act; and

(ii) the explanatory note which immediately follows that form in that schedule;

(b) by affixing to each affected unit and to—

(i) in a case where there exists one, and only one, lamp post which is situated within one hundred metres of that unit, that lamp post; or

(ii) in a case where there exists more than one lamp post so situated, each of at least two such lamp posts,

a conspicuous notice in the form set out in schedule 6 to this Act; or

(c) in a case where it is not possible to comply with paragraph (b) above, by advertisement in a newspaper circulating in the area of the affected unit.

(3) An advertisement giving intimation under subsection (2)(c) above shall—

(a) identify the land which is the affected unit;

(b) set out the terms of the community burden either in full or by reference to the constitutive deed;

(c) specify the name and address of the person who proposes to register the deed and state that from that person (or from some other person whose name and address are specified in the advertisement) a copy of that deed may be obtained;

(d) state that any owner of a unit who has not granted the deed may apply to the Lands Tribunal for Scotland for the community burden to be preserved but that if no such application is received by a specified date (being the date on which the period mentioned in section 37(1) of this Act expires) the consequence may be that the community burden is varied or discharged in relation to the affected unit.

(4) The person proposing to register the deed shall provide any other person with a copy of that deed if so requested by that other person.

(5) Subsections (6) and (7) of section 21 of this Act apply in relation to affixing, and to a notice affixed, under subsection (2)(b) above as they apply in relation to affixing, and to a notice affixed, under subsection (2)(b) of that section (the reference in paragraph (a)(ii) of the said subsection (6) to the date specified in the notice as the renewal date being construed as a reference to the date so specified by virtue of subsection (2)(b) above).

37 Preservation of community burden in respect of which deed of variation or discharge has been granted as mentioned in section 35(1) S

(1) Where a deed of variation or, as the case may be, of discharge has been granted as mentioned in section 35(1) of this Act, any owner of a unit in the community who has not granted the deed may, during the period of eight weeks beginning with the latest date on which intimation of the proposal to register that deed is given under section 36(2) of this Act, apply to the Lands Tribunal for preservation, unvaried, of the community burden in so far as constituted in favour of, or against, any unit not all of whose owners have granted the deed.

(2) A deed of variation or discharge granted as so mentioned shall not, on registration, vary or discharge a community burden in so far as constituted in favour of, or against, any unit not all of whose owners have granted the deed unless, after the expiry of the period mentioned in subsection (1) above, there is endorsed on it (or on an annexation to it referred to in an endorsement on it and identified, on the face of the annexation, as being the annexation so referred to) a certificate executed by a member of the Lands Tribunal, or by their clerk, to the effect that no application in relation to the proposal to register the deed has been received under this section or that any such application which has been received—

(a) has been withdrawn; or

(b) relates to one or more but not to all of the community burdens the terms of which are set out [F16 or referred to] in the deed (any community burden to which it relates being described in the certificate),

and where more than one such application has been received the certificate shall relate to both (or as the case may be all) applications.

(3) A deed of variation or discharge granted as so mentioned does not vary or discharge, in so far as constituted in favour of, or against, any unit not all of whose owners have granted the deed, a burden described by virtue of subsection (2)(b) above.

(4) A person who proposes to submit a deed of variation or discharge granted as so mentioned for registration shall, before doing so, swear or affirm before a notary public (the deed being endorsed accordingly)—

(a) that section 36 of this Act has been complied with; and

(b) as to the date on which the period mentioned in subsection (1) above expires,

but if more than one person so proposes only one of them need so swear or affirm.

(5) Subsection (2) of section 22 of this Act applies in relation to such a person and for the purposes of subsection (4) above as it applies in relation to a terminator and for the purposes of subsection (1) of that section.

(6) For the purposes of subsection (1) above, intimation by affixing shall be taken to be given when first the notice is affixed.

Textual Amendments

F16 Words in s. 37(2)(b) inserted (22.10.2003) by The Title Conditions (Scotland) Act 2003 (Consequential Provisions) Order 2003 (S.S.I. 2003/503), art. 2, Sch. 1 para. 8