Frequently Asked Questions

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Storm Damage? Responsibility for Common Repairs

Guardianship

Why should I make a Will?

Storm Damage?

Responsibility for Common Repairs

Carrying out repairs to your property is be expected at this time of the year. However, it is often unclear what the position is if common areas of your building need repair work. Who is responsible for repairing and maintaining this part of the property, and who is liable for the cost of these repairs?

The first step you should take is to refer to your Title Deeds to check if they set out who is responsible for repairs and maintenance of common areas of your property. Common parts of your property will include the lifts, stairs and hallways. If your Title Deeds do not cover this, you should take account of the Tenement Management Scheme which is contained within the Tenement (Scotland) Act 2004. This sets out default rules which apply to tenements where the Title Deeds are silent on a particular issue.

The Tenement Management Scheme

The TMS includes procedures for dividing up repair and maintenance responsibilities, and procedures for deciding how payment for repair work should be made. Any decisions made under the TMS are known as ‘scheme decisions’.

Decisions should be reached by majority voting, which means that more than half of the votes need to be in favour of the decision in order for it to be carried out. It is often helpful to arrange a meeting with all owners who must be given 48 hours notice of the meeting, which can be done via email or written correspondence. If it is not practical to arrange a meeting, one person can be responsible for collecting the votes. Owners should be told of the outcome of the decision as soon as practical. It is possible to challenge a decision by making an application to the Sheriff Court. An application must be made within 28 days of the date the original decision was made.

Under the TMS rules, payment for repairs made to structural elements of the building, such as the roof and external walls should be shared equally between all flat owners. All flat owners must pay the same unless the floor area of the largest flat is one and a half times that of the smallest flat. In this case, liability is apportioned by floor area.

With reference to common property, such as stairs, hallways and lifts, these costs should be divided equally among the owners who use the common parts.

Potential Issues

What is a Dangerous Building Notice?

The Council may issue you with a Dangerous Building Notice if it considers that your home is causing a danger to the general public, the people who live in the home or nearby buildings. Failure to carry out the work specified in such a notice is an offence. The Council may take steps to rectify any danger and can recover the costs thereof from you.

Appeals can be made to the Sheriff Court within 21 days of receiving the notice if you do not believe that the work is necessary.

Repairs in Rented Accommodation

The landlord is responsible for carrying out repairs to common areas, such as stairs and hallways. If some of the flats in the building are owned by other individuals, and not your landlord, the responsibility for common repairs can be shared between the landlord and the other owners.

Are new owners liable for the cost of repairs?

If you are a new owner of a property, you are not liable for any repairs which have been carried out but not paid for unless a notice of potential liability for costs was registered against the property at least 14 days before settlement.

If the repairs have been agreed but not carried out, the position is more complex. Both the buyer and the seller are jointly and severally liable for the costs. In the event that the new owner pays the costs, he has a right of relief against the seller.

If anyone would like to further discuss any of the issues raised in this article, we would be pleased to speak to you. Please contact Pomphreys Solicitors at 1 Kenilworth Avenue, Wishaw, ML2 7LP or at 79 Quarry Street, Hamilton, ML3 7AG. Alternatively, you can contact us by telephone on 01698 373365 or 01698 891616 for more information.

Guardianship

There may come a time when an individual is no longer able to make decisions independently regarding his or her personal care and financial matters. When someone is unable to handle his or her own affairs, and does not have the capacity to grant a power of attorney in favour of a family member or friend, you will need to consider applying for a guardianship order.

What is a guardianship order?

A guardianship order appoints an individual or professional to act and make decisions on behalf of someone who can no longer do so for him or herself. It is a means of protecting individuals who do not have capacity.

An adult’s inability to make responsible decisions on his or her own can result from a number of conditions, including physical and mental illness, mental deficiency and disability.

An application can be made for a financial and/or welfare guardianship order. The application will set out the reasons for the request and it will be made to the court for consideration. The sheriff will decide if the appointment is necessary in order to provide the adult with appropriate care and supervision.

Who can be a guardian?

It is possible for anyone who has an interest in the adult to apply to be appointed as his or her guardian. This may include a spouse, parent, adult child or close family friend. It may be the case that one or more individuals wish to be appointed. This too is possible and an application can be made for a joint appointment. The guardian must act in the best interests of the adult.

It is important to note that where it is considered necessary to appoint a guardian, and no application has been or is likely to be made for guardianship, the local authority may apply to be appointed as welfare guardian. This may result in the chief social worker being appointed to make decisions for the adult. The local authority also has the power to nominate a suitable person, such as an accountant or a solicitor to be the adult’s financial guardian.

What are the effects of a guardianship order?

A guardianship order gives those who have an interest in the personal welfare and finances of an incapacitated adult the ability to make important decisions on his or her behalf. An appointed person may wish to seek powers to deal with matters relating to the adult’s living arrangements, finances, personal welfare and healthcare decisions.

Points to consider

• It is worth bearing in mind that a power of attorney can avoid the need to proceed with a guardianship order if completed while the individual still has capacity.

• If you have concerns about the ability of someone you know to act and make decisions independently, you may wish to consider if it would be in his or her best interests to have a guardian appointed.

• If you are the parent or carer of a young person with learning disabilities, we would suggest that you may want to consider seeking a guardianship order to ensure that you maintain some control and influence over key decisions about your child’s future care as your child moves from childhood to adulthood.

Pomphreys solicitors can advise and assist those who seek to apply for a guardianship order. We would also be happy to discuss alternatives to guardianship such as powers of attorney or access to funds applications. If anyone has any interest in pursuing this, we would be pleased to speak to you. Please contact Susan Alexander at 1 Kenilworth Avenue, Wishaw, ML2 7LP or on 01698 373365 for more information.

Why should I make a Will?

In the event of an individual dying without a will, there are legal rules which will determine how your estate is to be distributed. As a result, your estate may not be distributed as you intended. The only way to ensure that your money, property and possessions pass according to your wishes is to make a will.

Points to Consider

• Making a will allows you to determine your beneficiaries and appoint your executors who will deal with the administration of your estate. If there is no will, rules on intestacy will apply and will determine how your estate is to be distributed. This is of particular important for unmarried couples, as an unmarried partner is not automatically entitled to a claim in the deceased’s estate under the current rules. (S)he would only be entitled to a share in their partner’s estate if a court application is made within six months of the date of death. It is then left to the court to determine how much the surviving partner is entitled to.
  
  
• Where there is a surviving spouse or civil partner, (s)he has a right to prior rights in the deceased’s estate:-
  • An interest in the deceased’s share of the dwellinghouse up to the value of £300,000;
  • House contents up to a value of £24,000;
  • A cash sum up to £42,000 where there are children and up to £75,000 where there are no children.

When prior rights have been paid, the spouse or civil partner is entitled to one third of the net moveable estate where there are children, and one half of the net moveable estate where there are no children. The same rule applies to children, whose share is dependant on whether or not there is a surviving spouse.

• For those with children, or for those who wish to make provision for persons with special requirements, you may wish to make particular provisions in your will to arrange that funds can be held in trust.
  
  
• Furthermore, if your personal circumstances have changed through marriage, divorce or the birth of a child, you may want to update your will to ensure that your estate is distributed in accordance with your wishes.

Pomphreys solicitors can advise and assist those who seek to make or amend their will. If anyone has any interest in speaking to one of our solicitors about this, we would be pleased to speak to you. Please contact us at 1 Kenilworth Avenue, Wishaw, ML2 7LP or on 01698 373365 for more information.