The Tenement Management Scheme, scheme decisions about secure entry systems, and a smattering of teaching nostalgia

The title for this blog post was something I mulled over for a while. After thinking about this for far too long, I opted for what can fairly be described as a boringly accurate title. So be it. It’s my blog, and all that. Just in case this isn’t clear though, what follows is a post about a minor yet potentially important point about the legal position in Scotland for the management of tenement property (aka condominium ownership, basically where you have flat/apartment units sharing a building), and a hopefully nice story about the teaching equivalent of the circle of life.

I’ll start with the law element of the post first. Where a number of owners share different bits of a building (and here I don’t mean co-ownership, I mean people owning self-contained 3D segments, where some of those segments may well be supported by a subjacent 3D segment owned by someone else), there needs to be a way to manage and maintain the building sensibly. In Scotland, the title deeds of the various properties can and often do make suitable provision for this, using the legal device of title conditions to do so. Sometimes the people who prepared the title deeds of the various properties may not have catered for such management and maintenance. What happens then? In such cases, a statute called the Tenements (Scotland) Act 2004 rides to the rescue.

In Schedule 1 to that Act, there is something called the “Tenement Management Scheme”. The TMS (in its own words) “provides for the management and maintenance of the scheme property of a tenement.” (The term “scheme property” is defined in the legislation, and basically it means the bits of the tenement that the various users of the property will be keen to ensure are shipshape.) Under the TMS, certain decisions relating to a tenement can be made by a majority of owners of flats in that tenement. The TMS was introduced to smooth over a decision making process which was occasionally difficult under the old (default) common law.

Rule 3.1 sets out the decisions that can be made. This operates to allow the owners to, for example, carry out maintenance to scheme property, arrange inspections of scheme property, and perhaps appoint a manger to look after the property.

Rule 3.1(f) allows for a scheme decision to be made “to install a system enabling entry to the tenement to be controlled from each flat“. In common parlance, these are known as “secure entry systems”.

In many tenements, every single flat will be accessible by the same common entry. This is not always the case though, and there are a significant number of tenement properties in (for example) Glasgow’s west end or what might be thought of as Georgian or Victorian Edinburgh where there are “main door” ground floor flats, served by their own exclusive door.

Here is an example. Suppose for the moment we have a tenement with four inhabited levels. On the ground floor there are two main door properties and also an entry door to a common close (in the Scots sense of the word “close”). On the first, second and third floors there are three properties, with all nine of these accessible from an internal stairway.

The two main door flats in this example are as much a part of the tenement as the others. But when it comes to access, they fly solo. Turning to the third and partially-shared entrance route to the tenement, let us make the reasonable assumption that the nine properties without an exclusive main door wish to have a suitable way to regulate access to the close. The two main door ground floor flat owners have a far less direct interest in this shared close though, as they can regulate access to their respective properties themselves. (A tenuous argument might be made that the amenity of the surrounding properties will be improved by access to the stairway not being a free-for-all, but then again any neighbours across the road or in a next door building would also be interested in the general amenity of the area.)

Should the nine shared access property owners in my example be able to bounce the two main door owners into a decision about a secure entry system, on the basis of a 9 out of 11 vote? Or to frame it differently but still with important implications in a slightly amended way, would five of the shared access owners be unable to make a decision to install a secure entry because they have only gathered 5 from 11 votes (when, discounting the two main door proprietors, these owners would have had a slim majority of 5 out of 9)?

This is tricky. Dealing with the issue in what seems like a fair way involves contortions in statutory interpretation about what is meant by controlling entry from “each flat” (per the wording of 3.1(f)), or perhaps seeking a contextual interpretation of the word “flat” (under section 29). Either way, the law is unclear and a strong argument can be made that it is worth revisiting the TMS to put the matter beyond doubt.

That concludes the main legal analysis. Here is where the post takes a bit of a nostalgic turn.

The law here has been unclear for a little while. And it was unclear just under ten years ago, when I was tutoring the related subjects of property, trusts and succession to students studying for their LLBs at the University of Edinburgh. (For information I lived and worked in Edinburgh from late 2006 to early 2011, and during term time in several academic years I tutored for a couple of hours a week. I was grateful to the team at the University of Edinburgh for this opportunity (Professor Ken Reid and Dr Andrew Steven were the class leaders at the time, as I recall) and my then employer Tods Murray for allowing this to happen. It was a great way to stay on top of current scholarship and also to keep my oar in at teaching, which might just have helped me secure an academic job later in life.)

Enough about me. I had many strong students in my tutorial groups. Looking back, one student in particular stood out, although I must confess I would have been hard pressed to marry up his name to his face as the years passed after teaching him, a point evidenced when I pretty much literally bumped into him at a meeting of the Stair Society (a Scottish Legal history society I used to sit on the board of). Anyway, in the three formative (diagnostic) assessments that students performed for the courses at the University of Edinburgh – exercises that the tutors marked – this student scored 25/25, 25/25 and 24.5/25. (I don’t know if he has ever forgiven me for that half mark. I can explain, honest, but that is for another day.)

How do I recall this in such amazing or indeed creepy detail? It transpires the student was a bit of a hoarder and/or had a notion that a future academic job was for him, and this turned out to be the case when the School of Law at the University of Aberdeen offered a lectureship to Dr Alisdair MacPherson. Apparently at some point in his sorting out of papers during his move to Aberdeen, he (re)discovered his marked tutorials, complete with my feedback, and I was thereafter confronted with them. Thank goodness I didn’t say anything too critical!

How does this link to the topic under discussion in this blog post? Oh, I’ve just nicked the idea and much of the analysis hook, line and sinker from one of Alisdair’s perfect assessments, when he picked up on the point about main door flats and the TMS. Credit is therefore due to him. Photos or it didn’t happen, you say? Well, for that crowd here are the photos. (Arguably, Alisdair sums up the issue all those years ago better than I did in this post.)

The boy done good, in the end. I’m happy to have played a small part in his legal education, and even more happy to have him as an academic colleague now.

The teaching circle of life continues.


About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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