Tenement repairs

Tenement repairs 

When you are purchasing or selling a flat in a tenement or a modern block of flats, issues may –and often do – arise where repairs or maintenance to parts of the tenement has perhaps been discussed by the owners, or formally proposed or agreed upon but work may not yet have been funded or started. 

Tenement repairs 

Tenement repairs can be problematic. McVey & Murricane have amassed vast experience of dealing with these types of issue over the years. We understand that this can be critical for both purchasers and sellers, so this note is intended to provide general guidance on the background to this and the various ways in which these issues are commonly addressed. 


Although the same types of issue do often arise, please do bear in mind that notes of this nature are, of necessity, general and each individual case will depend on the circumstances applying to that case and on what is negotiated between the parties to the transaction. You should always discuss matters fully with your conveyancer who will be able to give you the best advice to deal with the circumstances arising in your case. 


Finally in this note, when we talk about tenements, we are including modern blocks of flats as well. 

Where work is planned, there are several possible scenarios:

  • A scheme of repair/maintenance to parts of that tenement may have been discussed informally; or 


  • The seller (or the factors, if you have factors) may have asked contractors for quotes for the work to be carried out and may be considering the quotes which have been provided; or 


  • The seller and the other owners may have agreed on a quote and funding is being put in place before the work can start; or 


  • The work may have been instructed but not yet started; or 


  • The work may have started.


Most offers for residential properties are made on Scottish Standard Clauses (SSC) terms and conditions (for more information on these terms and conditions please go to MMiExpains | Scottish Selling Conditions Explained (mmilegal.com). In this note, we call these conditions “SSC”. 


The default position under SSC is that the seller should have liability for the proportionate share of the cost of any work being carried out to the tenement if it has been carried out, instructed or authorised (i.e., stage 3 above has been reached) even where the work itself has not actually started. 


What this means, therefore, is that while the work may have been formally approved 


  • Funds to carry out the work may not yet be in place or 


  • Funds may be in place, but the work not yet started 


In real terms the seller will not benefit from the work being carried out and the property will have been valued based on its current condition not its condition once the work has been carried out. In terms of SSC the seller will still be expected to pay the share of the cost of the work pertinent to the flat which they own. 

What happens if you are selling 

We believe that the default position under SSC is unfair, and we will accordingly seek to amend the contract (usually called “missives”) that you, the seller, will not have any liability for the cost of work being carried out to the tenement where that work has not actually started as at the date of the offer (i.e., you have not reached stage 5 when the offer for the purchaser was received). 

Why is this?

We think that this is a fair division of liability for the cost of the work as you will neither benefit from the material effect of the work that has been carried out nor, financially, from what would otherwise be likely to be an enhancement to the value of the property. 


But whilst we will try to provide for what we believe is a fairer position for the seller in the contract, it is possible that this position may not be acceptable to a purchaser. So, a purchaser may take the view that, as he has had no say in whether the work was to be carried out or not, he should not have any liability for the cost of the work. In other words, that the SSC default position should apply. 


It will be evident from this note that there are lots of ways of addressing this type of issue. Sometimes, the seller and the purchaser will agree to split the cost of the work, or the seller may agree to cover the cost up to a certain pre-agreed limit. We will discuss all of these matters with you as the transaction progresses and you should ask your conveyancer for further information if you are not clear on anything. 


As you might expect such negotiation involves a lot of extra resources being applied to your transaction and there will be additional costs per our terms and conditions. 

You are buying

We, along with most other solicitors in Scotland, submit formal offers for properties on SSC terms and conditions (MMiExpains | Scottish Selling Conditions Explained (mmilegal.com) and, as we pointed out earlier in this explainer, the default position in terms of these conditions is that the seller will be liable for any common repairs carried out, instructed or authorised at the date of entry. 


For the reasons noted above, it is arguable that this is unfair on a seller. Why should the purchaser pay for a property valued on the basis of works which may have been instructed but not yet carried out? 


Where we are acting for a purchaser, our paramount concern is the best interests of the purchaser. We will explain to purchase a client that we believe that there is a strong argument that the default position under SSC is unfair to the seller but we will take the purchaser client’s instructions. In doing that, we aim to obtain as much information as we can in relation to any ongoing common maintenance/repair schemes so that the purchaser client is fully informed in reaching decisions as to how to progress matters. 


These issues tend to turn on their own individual circumstances and your conveyancer will discuss the best way to progress once we are in full possession of all of the facts. 


As with the sale circumstances, such negotiation involves a lot of extra resources being applied to your transaction and there will be additional costs per our terms and conditions. 

Statutory notices 


What is a statutory notice? 

A statutory notice is a formal notice, normally issued by the local authority, requiring work to be carried out to a property. In most cases where a statutory notice has been served, there will be provision for the local authority to carry out the work and bill the proprietors back for the cost of the work if the proprietors as a body do not carry out the work themselves. 


SSC provides that, if a statutory notice is dated prior to the date of conclusion of the contract, responsibility for implementing it will lie with the seller regardless of when the work is carried out. However, statutory notices “run with” the property so, if you purchase a property which is subject to a statutory notice and the appropriate arrangements are not put in place at settlement to pay whatever sum is due under the statutory notice or comply with it, it then becomes your liability as the purchaser. Often a financial arrangement – called a retention – is put in place. This involves an estimate of the sum due under the notice being retained to pay for the cost of the work when it is billed. 

You are selling 

You must let us know if either a statutory notice has been served on your property or you are aware that that may happen (it is likely that there will have been contact from the local authority prior to the service of a statutory notice so, as a seller, you will be aware of that contact having taken place). You should provide any correspondence you have had and let us know what the current position is. We will discuss and agree with you the best approach to take in progressing negotiations with the purchaser. 

You are buying

We will make you aware of the position as soon as we can. Once we have details of the work which may be involved in the notice, we will share that with you and discuss the best way ahead. 

Historic notices 

When a flat in a tenement is being sold it is sometimes the case that the local authority searches disclose that a statutory notice has been issued and either not complied with or, probably more commonly, complied with but that there remain sums due to be paid. These notices often relate to work carried out many years ago and are historic but, as we noted earlier, "run with" the property. Invariably, the seller will assume lability for the outstanding cost - which is normally modest - unless agreement is reached with the purchaser to deal with the cost in another manner. 

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