Common repairs when selling a tenement flat

What counts as a common repair

Your title deeds are the starting point. They define what is owned in common — typically the roof, the roof void, external walls, foundations, the close, the stair, the back green, common drains and any shared services — and how the cost of maintaining each is divided.

Where the deeds are silent or unworkable, the Tenement Management Scheme in the Tenements (Scotland) Act 2004 fills the gap. It gives a default rule: scheme property is generally shared equally between flats, unless the largest flat is more than one and a half times the size of the smallest, in which case it is by floor area.

• Roof and roof structure, including chimney heads
• External walls, gables and the close walls
• The stair, entrance door, stair lighting and stair windows
• Common drains, downpipes and back-green paths

How a repair is agreed

Under the Tenement Management Scheme, a majority of flats can make a scheme decision to carry out necessary maintenance. Notice must be given to every owner, and an owner who disagrees has 21 days to apply to the sheriff court to annul the decision.

Owners can require a maintenance account to be opened and deposits paid in before work starts, which is why sellers are sometimes asked for money for a repair that has not yet begun.

What a buyer's solicitor will ask

Expect questions about repairs carried out in recent years, any repair currently agreed or under discussion, whether a notice of potential liability for costs is registered against the flat, and any sums outstanding to the factor or to other owners.

A notice of potential liability for costs, registered in the Land Register, makes a future owner liable for a share of an agreed repair. It is discoverable, so it is better disclosed early than found at missives stage.

Settling liability at the sale

Scottish missives usually deal with common repairs explicitly: the seller is normally responsible for repairs agreed before the date of entry, even if the invoice arrives afterwards, and a sum is often retained at settlement to cover it.

Your solicitor advises on the exact wording. What you can do as an owner is have the paperwork ready: minutes of any owners' meeting, quotations, the factor's statement and any council statutory notice correspondence.

Before you market: checklist

1. 1. Get a copy of your title deeds and read the common parts and burdens sections
2. 2. Request an up-to-date statement from the factor, including any works in progress
3. 3. Collect minutes, quotes and emails for any repair agreed in the last five years
4. 4. Check the Land Register for a notice of potential liability for costs
5. 5. Ask the council whether any statutory notice or enforcement affects the building
6. 6. Tell your solicitor early — disclosure is far cheaper than a late renegotiation

Common questions

Can I sell a tenement flat with a common repair outstanding?

Yes. Outstanding common repairs do not block a sale, but they must be disclosed. Missives normally make the seller responsible for repairs agreed before the date of entry, and a retention from the price is a common way of handling an invoice that has not yet arrived.

What is a notice of potential liability for costs?

A notice registered in the Land Register against a flat recording that a share of agreed common repair costs may fall due. It lasts three years and can be renewed, and it makes a future owner liable, so a buyer's solicitor will always check for one.

Can one owner in an Edinburgh stair block a necessary repair?

Generally no. Under the Tenement Management Scheme a majority of flats can decide on necessary maintenance. A dissenting owner can apply to the sheriff court within 21 days of notice to have the decision annulled.

How are repair costs split if the flats are different sizes?

The title deeds decide first. Where the Tenement Management Scheme applies, the split is equal unless the largest flat is more than one and a half times the floor area of the smallest, in which case cost is apportioned by floor area.

Who pays if a repair is invoiced after I have sold?

It depends on the missives. The standard position is that the seller carries repairs agreed before the date of entry and the buyer carries those agreed afterwards, with a retention held to settle the difference. Your solicitor sets this out before conclusion.