Flat owner fails to establish statutory repair duty for downstairs neighbours

Karen Lacey argued that the Tenements (Scotland) Act 2004 imposed an obligation on Paul McConville and Paula Carton in respect of support or shelter of other parts of the building. 

The case was heard in Edinburgh Sheriff Court by Sheriff Nigel Ross. 

Support and shelter 

The pursuer resided in the flat above that of the defenders, with both flats sharing an external wall on the eastmost side of the building. The block had a predominantly flat roof with render applied to the walls. The render was the original render applied when the building was constructed in the 1930s and had received a number of patch repairs in the intervening years. 

In about April 2014 the pursuer applied for and received planning permission to carry out certain alteration works to her property, both internal and external. The external works included the removal of the rear concrete stair and replacement with a metal platform and spiral staircase. These works were subsequently carried out, with portions of the render being damaged in the process. 

The pursuer met with the defenders to discuss potential works to replace the render on the external elevation. The defenders did not consent to any works to replace the render, and refused an offer for the pursuer to pay for the renovations upfront on condition of a later repayment of half the cost. The defenders continued to refuse further requests for consent in 2015. 

Evidence that was presented suggested the render was in a poor state of repair, with a risk of render falling from height to endanger people below it. The pursuer submitted that full replacement of the render would be necessary, and that under Section 8 of the 2004 Act the defenders were obliged to contribute to the cost. Her property had suffered water ingress, which she maintained was the result of the poorly maintained render. 

The defenders submitted that patch repairs would be sufficient to remove the risk, and they accepted that they were liable to pay for these repairs, but not for any damage caused by the pursuer’s external works to her property. In respect of the 2004 Act they argued that render works were not required for the purposes of support and shelter as mentioned in Section 8, and thus there was no remedy under the Act. 

No common law remedy 

In his decision, Sheriff Ross addressed the scope of the case, saying: “Parties accepted that I could only grant the remedy of declarator and payment if repair works to the external render could be brought within section 8 of the 2004 Act. The summary application does not seek any other statutory or common law remedy.” 

Addressing the evidence on water ingress in the pursuer’s property, he said: “Critically, the detailed plan of defective render shows many areas of defective render. These bore almost no correlation to areas of water ingress. The defenders’ property has many areas of defective render. They have not identified any water ingress.” 

He later continued: “On the facts, the pursuer has failed to prove that the render is intended to perform a waterproofing function to the building. It follows in my view that the pursuer has therefore failed in law to prove that the render provides shelter, within the meaning of section 8 of the 2004 Act.” 

On the risk of falling render, he said: “In my view, the render is likely to be in such a condition that it poses, at best, an unknown risk to the safety of passers-by and, at worst, an urgent danger. It is not possible to know the degree to which the evident want of repair has progressed. It is not possible to say that the render is in a safe condition. That fact alone indicates that repair is urgently required.” 

However, he continued: “For present purposes, the question is framed specifically in relation to support or shelter. The wording does not encompass safety issues. Danger to passers-by affects neither support nor shelter. There are likely to be other common law or title remedies open to the pursuer, but in my view a want of safety does not trigger any remedy under section 8 of the 2004 Act.” 

On whether the render may provide shelter as an incidental function, he said: “That would require extending the effect of section 8 to include an incidental benefit. It would logically require to be extended to any external shelter, for example a coat of paint, or an overhanging decorative architectural feature. In my view, the provision is not intended to encompass incidental benefit. If it did, it would operate to create duties in relation to parts of the building which were never designed to fulfil such a function.” 

He concluded: “The render on this building requires repair, not least because it is unsafe. However, the pursuer has not proved that this action can be maintained under section 8 of the 2004 Act.” 

For these reasons, decree of absolvitor was granted in respect of the defenders.