CHARLOTTE WAELDE AGAINST FELIX ULLOA
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 30
SA1139/15
JUDGMENT OF SHERIFF KENNETH J McGOWAN
In the cause
CHARLOTTE WAELDE
Pursuer;
Against
FELIX ULLOA
Defender:
Edinburgh, 29 March 2016
The Sheriff, having resumed consideration of the cause, grants decree against the defender for payment to the pursuer of £100.00; finds no expenses due to or by either party.
NOTE
Introduction
[1] This case concerns a dispute between co-proprietors over responsibility for certain repairs to a flatted property in Edinburgh. I heard evidence from both parties and I was referred to the pursuer’s productions, P1 – P22, and the defender’s productions (a number of invoices, reports and photographs). In particular, reliance was placed on:
(i) the Tenements (Scotland) Act 2004 (“the 2004 Act”);
(ii) The Tenement Management Scheme set out in Schedule 1 to the 2004 Act (“the TMS”);
(iii) the Local Government Finance Act 1992;
(iv) ‘Report on the Law of the Tenement’, Scottish Law Commission, 1992 (SLC No. 162);
(v) Mehrabadi v Haugh, summarised at ‘Conveyancing 2009’, pages 10 and 11;
and
(vi) commentary on Mehrabadi v Haugh, summarised at ‘Conveyancing 2010’, pages 93 et. seq.
[2] I found the following facts to be proved or admitted.
Findings in fact
[3] The building under consideration is located in Edinburgh. The building was built as a single dwelling. It was subdivided into three flats in the 1950’s. At some stage between the subdivision and the pursuer purchasing it the following items were installed in the roof above the top floor flat (“Flat 3”):
(i) a Velux window (“the Velux”) above a room which was (or became) the bathroom and
(ii) a skylight (“the skylight”) above the hall.
[4] The Velux was formed by the creation of a raised area, thereby altering the contour of the roof, into which the Velux window itself was fitted: defender’s productions Photos 5 and 6.
[5] The skylight was formed by the creation of a rectangular aperture in the roof. Around the edges of the aperture, a frame, constructed from wood or some other similar material was formed. The long sides of the frame come to an apex in the centre of the aperture. Glass panes were fitted onto (or into) the frame to create a two paned skylight, with each pane sloping downwards from the apex to close to roof level. The method of fixing the panes is not clear. Defender’s production Photo 3 bears to show the condition of the skylight prior to the disputed repair work.
[6] The pursuer purchased Flat 3 in 1997. The defender bought the first floor flat (“Flat 2”) about 4 years ago. The ground floor flat (“Flat 1”) is owned by a third party.
[7] In about 2014, some problems with the roof of the building developed with the result that there was water ingress into Flat 3. After various communications among the proprietors and contractors, certain work was carried out to the roof above Flat 3. This work comprised:
(i) in the area of the Velux: defender’s productions, Photos 5 and 6;
(ii) to the seal round a cooker hood vent pipe emanating from the kitchen: defender’s productions, Photos 1 and 2;
(iii) repairs to the skylight: defender’s productions Photos 3 and 4;
(iv) and the flat roof above the sitting room.
[8] The total cost of these repairs was £850.00 + VAT = £1020.00: defender’s production, Quote 2. The portion of those costs attributable to the Velux was £200.00 plus VAT; and the portion attributable to the skylight was £250.00 plus VAT.
[9] The defender and the proprietor of Flat 1 each accepted responsibility for contributing a 1/3rd share of the cost of items (ii) and (iv) and paid £159.99 in respect thereof.[1]
[10] The pursuer paid the contractors £699.99, i.e. the whole cost of items (i) and (iii) and a 1/3rd share of items (ii) and (iv).
[11] The pursuer sought payment of 1/3rd of the cost of items (i) and (iii) (£450.00 + VAT = £540.00) from the proprietor of Flat 1 and the defender. In due course the proprietor of Flat 1 paid her a further £179.99. The defender declined to do so, hence this action.
Discussion
[12] The pursuer’s position was that the cost of the disputed repairs was recoverable either under the maintenance burden imposed by the titles; or alternatively under the Scheme set out in Schedule 1 to the 2004 Act.
[13] The defender’s position was that (i) the repairs were not to the roof and as such they were not part of the shared maintenance responsibility either in terms of the titles or the 2004 Act; (ii) if they were to the roof, they were occasioned by the presence of items installed thereto which were not present when building was built and the title burden (see below) created.
[14] For reasons which I hope will become apparent, it is appropriate to analyse the position in relation to each part of the repairs separately.
claim under the title burden
The scope of the title burden
[15] Clause (One) of the 1959 Disposition provides inter alia: “under burden of paying a share in the proportion which the assessed rental of the subjects hereby disponed bears to the total assessed rentals of [the three flats] of the expense of maintaining … the roof…” (“the title burden”).
[16] In passing, I would observe that the titles to Flat 2 (the defender’s flat) were not produced, but I proceeded on the basis that the same burden would have been imposed on each new flat at the time of the split off. This did not appear to be disputed.
[17] In any event, it is clear that in order to determine whether the title burden is engaged, it is necessary to determine whether either set of repairs were was a repair to the ‘roof’.
The repairs to the skylight
Were the repairs to the roof?
[18] There was no direct evidence from the contractor as to what exactly had been done, but there was no dispute that some repairs had been carried out and accordingly I have tried to piece it together based on such information as was available from the parties and from the productions.
[19] The evidence of the pursuer was that there had been water ingress before the repairs which had not occurred afterwards. Neither the quotation nor the invoice from the contractors was enlightening: defender’s productions Invoice 1 and Quote 2. The defender had produced a report from another contractor which said “Hall skylight window leaking due to badly fitted flashband tape on glass.”: defender’s production Report 2. This was not spoken to by its author but did appear to be consistent with what was shown in the defender’s productions, Photos 3 and 4.
[20] Taking all that information together, it appeared to me as a matter of probability that that the repairs to the skylight were restricted to the replacement of the Flashband tape (which I understand from my own knowledge to be a kind of metallic tape used in this type of work) on the surfaces of the glass panes themselves and extending down the vertical sides of the box which forms the skylight. The important point is that there is no evidence of work extending onto the horizontal (or near horizontal) felt surface of the roof itself: defender’s production, Photo 4.
[21] Accordingly, as a matter of fact, I hold that these repairs were not to the roof. That being so, the obligation to contribute to the cost thereof under the title burden is not engaged.
[22] The result is that the pursuer’s claim for a share of cost of repairs to the skylight is not recoverable under the title burden.
The repairs to the Velux
Were the Velux repairs to ‘the roof’?
[23] As with the skylight, there was no direct evidence from the contractor as to the precise scope of the repairs done, but there did not appear to be much dispute about it. The repairs invoice narrates: “To repair damaged felt work to Bathroom Velux.” The defender’s productions Photos 5 and 6 show this area. It appeared to me that the repair itself was not to the glass or the metal frame of the Velux but rather to the area between the outer edge of the frame of the Velux and the wall separating the building from the one next door: defender’s Photo 5.
[24] Whether this was to the metal flashing or the strip of felt was not clear, but in my view it does not matter. In my opinion, both are properly to be regarded as a matter of fact as part of “the roof”. The felt forms part of the horizontal (or near horizontal) part of the roof structure of the building. The flashing is an integral part of the structure of the roof where it joins the adjoining wall. On either view, it is part of the roof.
Does the title burden extend to new parts of the roof?
[25] The defender contended that the contour of the roof having been altered at some earlier stage, the title burden could not be to taken to apply to parts of the roof other than those in existence at the time when it (the title burden) came into existence. This was one of the points touched on in Mehrabadi: see ‘Conveyancing 2009’ and ‘Conveyancing 2010’.
[26] The essential facts in Mehrabadi were that a tenement was built and the flats sold. The titles provided that each flat was burdened with a rateable contribution to the cost of roof repairs. Later, the top floor proprietor installed a dormer. In due course, repairs were needed to the roof of the dormer. The question posed was - did the cost of repairs to the dormer roof fall on all proprietors or on the proprietor of the top floor flat only?
[27] The learned authors expressed the view that the Mr Mehrabadi’s claim was weak at common law, since the maintenance burden was applied only to the roof as it was originally. But it is clear that this issue is not free from controversy: ‘Conveyancing 2010’, page 93 and footnote 2.
[28] For my own part, I do not see why a maintenance burden should be so restricted, at least in relation to burdened co-proprietors who have or are to be taken to have acquiesced in the alteration concerned. A hypothetical example would be a tenement building which, when first erected, had (i) a flat roof and (ii) a title burden imposing a shared maintenance obligation on the co-proprietors. As a result of the costs of repeat repairs to the flat roof, the proprietors agree to it being replaced by a pitched slate roof. Later, repairs are needed to the slate roof following storm damage. It seems counter-intuitive to suggest that the co-proprietors should not be liable for their share of those costs in accordance with the maintenance burden.
[29] I accept that there may be more difficult cases involving issues about what constitutes acquiescence and/or alterations which change the character of the part of the building in question, such as a dormer which may, depending on the precise design, itself consist of a ‘roof’ part; vertical ‘walls’; and a glazed ‘front’.
[30] Nevertheless, I am attracted by the idea that a ‘roof’ (or other strategic part of a building) should be taken to include parts added thereto which are of the same character; and that an obligation to contribute to the cost of maintaining it created by the type of burden in the present case should be treated as extending to the cost of maintaining same.
[31] In particular, it is clear that the Velux was in situ long before the defender bought his flat. Accordingly, it appears to me that he should be treated as having acquiesced in its presence. That being so, it is appropriate that the title burden should be interpreted in a way consistent with the factual situation as it exists now.
[32] Thus, in the present case, my opinion is that the title burden was engaged in respect of the repair to the area adjacent to the Velux because (i) as a matter of fact, that was a repair to the roof; and (ii) the defender should be held to have acquiesced in the prior alteration to the contour of the roof brought about by the installation of the Velux. The result is that the defender is liable to meet a share of the cost of the repair thereto, apportioned as provided for in the titles.
The mechanism for calculating the shares payable
[33] The title burden provides that the costs of shared repairs costs are to be shared “…in the proportion which the assessed rental of the subjects hereby disponed bears to the total assessed rentals of [the three flats]…”.
[34] Assessed rentals are a thing of the past, but Section 111 of the 1992 Act provides a mechanism for that to be treated as the gross, net or rateable value (as the case may be) relating to the properties in question in the valuation roll in force immediately prior to 1 April 1989.
[35] The difficulty for the pursuer is that no evidence was led about the rateable value of Flats 1, 2 or 3 as it appeared in the valuation roll of 1 April 1989. Without that information, I cannot make the necessary apportionment.
[36] It is for parties to prove all relevant parts of their case, relating to both liability and quantification.
[37] Thus, although I can make a finding in principle that the pursuer is entitled to a contribution from the defender for the cost this portion of the repairs, I cannot say what that figure is. The result is that that this part of the pursuer’s case must fail.
claim under The 2004 act
The repairs to the Velux
[38] The pursuer’s alternative argument was that she was entitled to recovery under the 2004 Act. In my opinion, that argument cannot succeed in relation to the repairs to the Velux. Rule 4 of the TMS deals with liability for and apportionment of “scheme costs”. In terms of Section 4(6) of the 2004 Act is not engaged where a tenement burden regulates the position. The title burden in the present case is a tenement burden.
[39] Thus, the repairs were to the roof; roof repairs are regulated by Clause (One). Accordingly, no resort can be had to the TMS.
The repairs to the skylight
[40] Resort to the TMS in respect of the repairs to the skylight is not debarred by Section 4(6). Accordingly, the question is whether they fall within the terms of the TMS.
[41] The defender relied on Rule 1.3 of the TMS. His position was that as the repairs were to a skylight which served only one flat, they are one of the excepted categories falling out with “scheme property”. On the basis of my finding in fact that the repairs were to the skylight (and not to the roof) this would appear at first blush to be correct. However, the pursuer invited me to approach the matter in a different way.
Accession
[42] The pursuer argued that the law of accession meant that skylight had, by the operation of the principle of accession, become part of the roof. (In fact, it may be that her position was that the law of accession applied to both the skylight and the Velux. But it appears to me that in relation to the latter, that argument adds nothing. The repairs at the Velux were to the roof. Therefore the titles regulate the position. There is no separate claim for repairs to the Velux itself.)
[43] There is no doubt that in appropriate circumstances, when an item of corporeal property, moveable or heritable (“the accessory”) is joined to another item corporeal property (“the principal”), the former is subsumed into the latter. Examples are a gear box fitted to a car (moveable accessory to moveable principal) and central heating system installed in a house (moveable accessory to heritable principal). In these cases, the gear box becomes part of the car and the heating system part of the house: “The Law of Property in Scotland”, Reid, First edition, 1996, paragraph 570.
[44] The effects of such accession are that:
(i) the accessory becomes part of the principal in law if not in fact;
(ii) the accessory, if moveable, becomes heritable; and
(iii) the accessory belongs to the owner of the principal: Reid, paragraph 574.
[45] In passing, I observe that if the principal was owned by more than one person, the result is common ownership of the accessory: Bell s. 1076, cited at Reid, paragraph 574, note 4 (see further below).
[46] Thus, in the present case, when the skylight was installed, it fell into category (ii) above and the principle of accession operated. But is it correct to say that it became part of the roof?
[47] It certainly became part of the heritable property constituting the building, but it appears to me that the correct way to analyse what the skylight as accession is to focus on its function. Starting with the examples given above, post accession, the gearbox was still a gearbox and the heating system was still a heating system. They had become part of their respective principals (and had become heritable property) for the purposes of title (ownership) and succession. But that change of character in law did not change their character in fact.
[48] Applying that purposive approach to the skylight in this case, it is true that it provided protection against water ingress in place of the roofing material which had preceded it. But its primary function was to provide light.
[49] Accordingly, in my view it is not correct to say that as a matter of fact the skylight became part of the roof. But as a matter of law, it lost its separate character and became part of the part of the building.
[50] That being so, it is necessary to consider the issue a little further.
[51] To take a simple example, if a central heating system is installed in a house owned by X, then the system accedes to and becomes part of the house; ownership thereof transfers to X (and the parts of the system change from moveable to heritable property).
[52] If the house is the common property of X and Y (i.e. owned in common and not jointly), then the central heating system becomes part of X and Y’s common property.
[53] Things become rather trickier when tenements are considered. The common law and Section 2(3) 2004 Act say that the roof and roof space of a tenement are owned by the proprietor of the top floor flat. But it is clear that the titles may provide otherwise. That is the situation in this case: the roof is owned in common by the proprietors of Flats 1, 2 and 3.
[54] So the individual owners of the flats own parts of the tenements in two different capacities. Firstly, they have sole ownership of their respective flats personally. Secondly, they are co-owners along with the proprietors of the parts of the building which are common property (e.g. the roof).
[55] So the question is: what is the status of property which is said to accede to a piece of common property? The pursuer’s proposition in this case was simple – the skylight was added to common property, therefore it becomes common property.
[56] That was the argument put forward in relation to the dormer roof in Mehrabadi, though in that case it was being said that the roof of the new dormer became part of the roof of the tenement.
[57] It appears to me that for the purposes of the law of accession, the nature of the eventual ownership title is determined by the title of the principal and not by the character of the pieces of property brought together i.e. if the title to the principal is in sole ownership, the accessory, on accession, is in sole ownership also; if the title to the principal is common, the accessory, on accession, is owned in common.
[58] There does not appear to me to be any reason why that principle does not apply in the present case. Accordingly, I have come to the view, albeit with some hesitation, that the pursuer’s argument is correct. The skylight, added to the roof, accedes thereto; and as the roof is common property, the skylight is too.
[59] For the avoidance of doubt, I do not consider it necessary to find that the skylight becomes part of the roof. But an accessory becomes, by law, a part of the principal for the purposes of title (ownership).
The TMS
[60] Rule 1.2 of the TMS provides that there are three categories of “scheme property”, namely (a) common property; (b) property other than common property which is to be maintained by two or more owners by virtue of a tenement burden; and (c) certain specified other parts, including the roof.
[61] The category (c) scheme property requires some further comment. Firstly, it is subject to some exceptions, which includes skylights. The parties had conflicting positions on how Rule 1.2 affected the present case. The defender relied on the exceptions contained in Rule 1.3. The pursuer said that the skylight was part of the roof, but she did not need to rely on Rule 1.2 to categorise the roof as scheme property because it was already scheme property by virtue of category (a). As the Rule 1.3 exceptions applied only to Rule 1.2(c) and not to Rule 1.2(a), the fact that skylights were excluded had no application in the present case. The skylight was part of the roof by accession; the roof was common property (by virtue of the title deeds); therefore it was scheme property; therefore Rule 4 of TMS was engaged and regulated the position.
[62] As noted, I am satisfied that on installation the skylight acceded to a part of the tenement which was common property. Accordingly, it became common property as a matter of title (ownership).
[63] As such, it falls within Rule 1.2(a) and as such is “scheme property”. There is no need to go any further in Rule 1.2. There are no exceptions to Rule 1.2 (a).
[64] It follows that Rule 4 is engaged and regulates the position. The application of Rule 4.2(a) means that the defender is liable for a 1/3rd share of the cost of maintaining the skylight.
Disposal
[65] I would have awarded the pursuer a share of the cost of the repairs to the roof adjacent to the Velux but for the reasons stated at paragraphs [35] – [37]. As it is, that part of her claim must fail.
[66] The portion of the repair cost to the skylight amounted to £ 250.00 + VAT. For the reasons given above, I consider that the pursuer is entitled to recover the 1/3rd of the cost thereof from the defender. Accordingly, I shall grant decree against the defender for payment to the pursuer of £250.00 + VAT = £300.00 / 3 = £100.00. I make no award of expenses due to or by either party.
[1] I observe that there appears to have been some dividing or rounding errors which have led to the figures being distorted by the odd pence here and there. I propose to ignore this.