The roof leaks. The stair needs painting. The door entry system dies. In a Scottish block of flats, the first question is never really "what does it cost?" It is "who pays, and in what shares?" The answer follows a clear legal sequence that surprisingly few owners have ever had explained to them. This guide sets it out plainly: what the title deeds do, what the Tenements (Scotland) Act 2004 does when the deeds go quiet, and how decisions get made when owners disagree.
The golden rule: deeds first, statute second
Every flat in Scotland comes with title deeds, and for shared repairs the deeds are the first authority. They typically define which parts of the building are common, how costs are split between flats (equally, by floor area, or by a formula), and how owners make decisions.
But deeds, especially older ones, are often incomplete, unclear, or silent. Parliament dealt with this in the Tenements (Scotland) Act 2004, which supplies a statutory fallback called the Tenement Management Scheme (TMS). The TMS does not replace your deeds; it fills their gaps. Where your deeds answer a question, the deeds govern. Where they are silent, the TMS steps in.
So the honest answer to "who pays for the roof?" is always: "it depends what your deeds say, and here is the default if they say nothing." Any factor, solicitor, or neighbour who answers without reference to your deeds is guessing.
What counts as everyone's problem: scheme property
The 2004 Act defines a category called scheme property: the parts of a tenement so fundamental that they must be managed and maintained in common. It includes:
- the foundations
- the external walls
- mutual gables and mutual walls
- the roof, including the rafters and supporting structure
- anything your deeds make common property of two or more owners
- parts serving all flats that the deeds say two or more owners must maintain
The practical meaning: the structure and weather envelope of the building are collectively owned problems. A top-floor owner does not own the roof alone, and a ground-floor owner does not escape it. The building stands or fails as one object, and the law treats its spine accordingly.
Inside your own flat, by contrast, repairs are yours: your boiler, your bathroom, your internal walls, subject to whatever your deeds add.
How costs are split: the default rules
Where your deeds set out shares, those shares apply. Where they do not, the TMS default is:
- Equal shares among the owners liable, as the starting point.
- Except where only some owners benefit. Work on a part used by only some flats is shared by those flats alone.
- Except where flat sizes differ greatly. If the largest flat's floor area is more than one and a half times the smallest's, costs are apportioned by floor area instead, so larger flats pay proportionally more.
Most modern deeds do set out shares, so for many owners the TMS apportionment never activates. But knowing the fallback matters, because it is the answer whenever the deeds run out. If your factor invoice states your share as a percentage, the productive question is simply: "Which deed clause or statutory rule sets this figure?" A competent factor answers with a source. Our guide to understanding your invoice covers the other lines.
How decisions get made: majority, not unanimity
Here is the part of the 2004 Act that changed daily life in Scottish stairs. Where deeds are silent on decision-making, the TMS lets owners make scheme decisions by majority vote: more than half of the flats. Maintenance of scheme property, inspections, appointing or dismissing a factor, and related matters can all be decided this way.
Before the Act, common law in many tenements effectively let one owner veto necessary repairs. Parliament deliberately reversed that. A majority decision, properly made, binds every owner, including those who voted no and those who never replied. The building cannot be held hostage by its most reluctant participant, which, as our guide on the cost of delay shows, protects everyone's money in the end.
"Properly made" does the heavy lifting. A scheme decision should be documented: owners notified, the vote recorded, the outcome minuted. When a factor instructs work on the back of an owners' decision, the paper trail is what makes each owner's share collectable. Informal stair consensus is fine until someone disputes their bill; documentation is what survives the dispute.
Where the factor fits in
A property factor does not change any of the above; it operates inside it. The factor reads the deeds, applies the right apportionment, organises the votes that need organising, instructs the agreed work, and bills each owner their lawful share. Within agreed authority levels (and in genuine emergencies, especially where safety is at risk), a factor typically acts without a vote; beyond them, decisions return to owners.
This is also the standard a factor should be held to. Shares that cannot be traced to a deed clause or statutory rule, or works instructed with no decision trail, are exactly the kinds of failure the Property Factor Code of Conduct exists to prevent, and they are challengeable, ultimately at the First-tier Tribunal.
The recurring flashpoints
"The roof only benefits the top flats." Almost always wrong in law. The roof is scheme property; it protects the structure every flat depends on, and its costs are shared per the deeds or the TMS.
Windows. Frequently messy. Deeds vary: some make windows each owner's own, some treat frames or the external face as common. There is no universal answer; this one genuinely requires reading your deeds.
Extensions and improvements versus repairs. Maintenance of what exists is the default collective obligation. Enhancing the building is a different kind of decision with different rules. The boundary can be arguable, which is another reason decisions should be documented at the time.
The absent or silent owner. Silence does not block a majority, and a properly made decision binds non-responders. Their share of the cost remains due. When an owner will not or cannot actually pay, that is the separate problem of missing shares, and it deserves its own honest discussion.
Frequently asked questions
The deeds and the TMS seem to conflict. Which wins?
For matters the deeds validly cover, the deeds. The TMS is a gap-filler, not an override. But statute does set floors the deeds cannot dodge: the factor regulatory regime applies regardless of deed wording, and recent legislation overrides certain deed provisions, for example on removing developer-appointed factors in new builds.
Do I have to pay for a repair I voted against?
If the decision was properly made by the required majority, yes. That is the design of the system: collective buildings need collective decisions that bind. Your protections are procedural (was the decision properly made?) and substantive (challenging genuinely improper charges through the complaints route and the Tribunal), not a personal veto.
Who pays when damage in one flat is caused by another flat, like a leak from above?
That is a different question from common repairs: damage caused by one property to another engages liability and insurance rather than scheme cost-sharing. Common building insurance and the owners' own policies usually deal with it. The shared-cost rules in this guide are about maintaining common parts, not about fault.
Our deeds are from 1902 and barely say anything. Are we stuck?
You are the exact case the 2004 Act was written for. The TMS supplies the full machinery: scheme property definitions, majority decisions, and default cost shares. Old deeds are normal in Scotland, and buildings run perfectly well on the statutory scheme.
Can we check what our deeds say without a solicitor?
You can obtain your title sheet from Registers of Scotland inexpensively, and a factor should be able to explain the apportionment it applies. For high-stakes questions (major works, disputes, sales), independent legal advice is worth the fee. We are a property factor, not solicitors, and this guide is general information rather than legal advice.
General information only. Individual title deeds and circumstances differ.
AboveBoard Homes is an Edinburgh property factor that shows its working: every share traced to a deed clause or statutory rule, every decision documented. If your building's cost splits have always been a mystery, get in touch.
