After we have a list of owners of properties, it is time for the owners to start making decisions.
It is almost certain that the default rules in the Tenements Act of 2004 apply to decision-making in our tenements.
Disclaimer: this is not legal advice. I am not offering legal advice. For legal advice, contact a qualified legal professional.
In general, the law on tenements and how decisions can be made divides works into two categories:
- Maintenance
- Not maintenance
The Tenements Act says “Maintenance” includes:
- repairs and replacement
- cleaning
- painting
- other routine works
- gardening
- the day to day running of a tenement and
- the reinstatement of a part (but not most) of the tenement building
- installing controlled entry security systems
- installation of insulation.
For maintenance, unless some other decision-making scheme is described in the Title Deeds, a 50%+1 majority for a decision is legally binding on other owners.
This means that in a tenement with 16 distinct owners, 9 owners voting in favour of a maintenance decision means the other 7 owners have no legal choice but to follow that decision and pay up.
Each property counts as one vote. If one owner owns multiple properties, then they get a vote for each.
This decision-making scheme covers the land and building defined as the tenement.
For more information on making decisions as a tenement property owner, see the ‘Making Decisions‘ article on the Under One Roof website.
In our case, the works we plan for SECAB are gardening maintenance, and so qualify for the 50%+1 voting scheme. This is crucial to the success of SECAB. I expect we will face some owners who are unwilling, either reasonably or unreasonably, to contribute financially to this project. If that happens, there is a risk that the entire scheme will collapse. The Tenements Act means we can ensure the minority cannot block the majority.
The Act sets out a limited set of areas where these powers can be used, and there are checks and balances. It is not possible to force owners to pay for unreasonable expenses, as owners can defend themselves. However, SECAB is planning to do only the most reasonable of works. There will be no good reason for anyone not to contribute.
The next complexity is that our back green area is divided up between different tenements. In law, the maintenance powers would apply only to the area owned by that tenement.
The only way to make the back green work is if every tenement is in favour and commits to the works. That means we will need all twelve tenements to have the 50%+1 vote in favour. If one or more tenements do not reach this threshold, then the entire project will likely fail. Other owners will not pay for maintaining tenement land they do not own.
Now that all owners know the law of the land on making decisions in their own tenements, we move to Phase 3 – Getting organised.
SECAB 