party wall matters in scotland

there are 2 types of boundary walls in scotland. type 1 is built entirely on one side of the boundary, while type 2 straddles the boundary between two properties with one half on each side. this guide deals with type 2 boundary walls.

each neighbour has a duty in the common interest to make sure that a boundary wall is maintained. owners will often be free to make agreements between themselves on what work should be carried out and who should pay for it, and it is common for these arrangements to take the form of real burdens. these are obligations, which are written into title deeds that tell owners what their responsibilities are towards neighbouring properties. concerning a boundary wall, there might be a real burden stating that the neighbours will split the cost for any repairs equally.

neighbours aren't permitted to make any alterations to a boundary wall that will have an impact on the structure of the wall as a whole. provided that alterations don't damage the stability of the boundary wall, they will generally be allowed. the general rule is that the neighbour who is making the alterations will have to pay for them.

the tenements (scotland) act 2004 (the act) contains a particular set of rules for flats. for example, the ‘tenement management scheme' sets out how decisions are made on repairing or altering the building and who should cover the costs.

this is especially important when title deeds aren't explicit or have gaps that could lead to problems when trying to make decisions with other owners in your tenement. for example, a title deed may not:

• explain how decisions should be made

• describe all of the common areas

• give a share of costs that adds up to 100%

where this is the case, the owners can revert to the tenement management scheme, which helps fill gaps in title deeds and makes flat owners' responsibilities clearer.

flat boundaries

the act divides a tenement into ‘sectors' when the title deeds to the property do not clearly do so. generally, each flat is one sector, as is a close (eg a communal entrance, passage, or stairway) or lift or any other space within the building, such as a basement. the boundary between sectors is in the middle point of the wall that separates them.

the tenement management scheme

the tenement management scheme covers parts of the building that are defined as ‘scheme property'. these are parts of the tenement that need to be maintained by all or multiple of the flat owners to ensure the building as a whole is safe and stable. for example, the foundations, the roof and load-bearing walls, and areas that are commonly owned such as a close.

scheme decisions

if you and the other owners cannot decide on if and how certain maintenance should be carried out, the tenement management scheme explains the process for reaching an agreement. decisions about carrying out work on these areas are considered ‘scheme decisions' and can be made by a simple majority of the flat owners, with each property representing one vote. 

all flat owners must have a chance to cast their vote. once a decision has been reached, every owner must be notified. anyone who objects to the decision can appeal to the sheriff courts.

when this type of work is being carried out, the cost must typically be shared between all of the flats in the building. however, there are certain exceptions, including:

• where the work involves a part of the tenement that isn't used by everyone, generally only the owner(s) of the flat(s) involved should pay

• where the floor area of the biggest flat is more than 1.5 times the floor area of the smallest flat, the repair costs should be split so that the owner of the larger flat pays more

for more information, read the scottish government's guidance. if you need help with a party wall matter or dispute, you can find a surveyor using the royal institution of chartered surveyors’ (rics) find a surveyor service.