SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT STIRLING

Case Nos. A125/10 and A126/10

JUDGEMENT of SHERIFF K.J. McGOWAN in the cause MRS JACQUELINE TAMAR GARVIE Pursuer against (FIRST) MRS SYLVIA WALLACE and (SECOND) DAVID CROSSAN Defenders __________

Stirling, 8 April, 2013

The Sheriff, having resumed consideration of the cause (1) in case number A125/10 (i) repels the defender's second and (insofar as it relates to the second crave of the writ) third pleas in law; (ii) repels the pursuer's second and third pleas in law; (iii) sustains the defender's fourth plea in law and absolves the defender from the second crave of the writ; (iv) sustains the pursuer's first plea in law and grants decree against the defender for payment to the pursuer of the sum of SIX THOUSAND FOUR HUNDRED AND EIGHTY THREE POUNDS AND NINETY SEVEN PENCE (£6483.97) Sterling with interest thereon at the rate of 8% per annum from the date of citation until payment; (2) in case number A126/10 (i) repels the defender's first and (insofar as it relates to the second crave of the writ) second pleas in law; (ii) repels the pursuer's second and third pleas in law; (ii) sustains the defender's third plea in law and absolves the defender from the second crave of the writ; (iii) sustains the pursuer's first plea in law and grants decree as first craved against the defender for payment to the pursuer of the sum of SIX THOUSAND EIGHT HUNDRED AND FIFTY EIGHT POUNDS AND FORTY SIX PENCE (£6858.46) Sterling with interest thereon at the rate of 8% per annum from the date of citation until payment; and (3) in respect of both cases, reserves meantime all questions of expenses.

(Sgd.) "K J McGowan"

Sheriff

Note

Introduction

[1] These two conjoined actions each concern liability for the cost of repairs effected to the property known as Carbeth House, Killearn, Glasgow ("Carbeth"): Crave 1. In each case, there is a separate claim for sums which it is contended the defenders should have paid towards a 'repairs fund': Crave 2. Thus there are in effect four separate claims which are all independent of one another which need to be considered and disposed of.

[2] The actions ran in tandem until they were formally combined at the commencement of the proof diet. For convenience, I shall refer to the defender in action A125/10, Mrs Sylvia Wallace, as the first defender; and the defender in the second action A126/10, David Crossan, as the second defender.

[3] I heard evidence from the pursuer, who is the proprietor of a flat called the Strathclyde Suite in Carbeth; David Cochrane, a civil and structural engineer who was involved in advising on, and supervising, the works which were executed; Ronald Garvie, the pursuer's husband and the owner of a flat called the Strathearn Suite (formed from two flats known respectively as the Strathglass and Strathearn Suites and also sometimes referred to as "the Mews property"); the first defender, owner of the Strathspey Suite; the second defender, owner of the Strathaven Suite; and James Anderson, a building standards surveyor with Stirling Council.

[4] I was referred to a number of documentary productions during the course of the evidence. During submissions, I was referred to the Titles to Land (Consolidation) Act, 2003; the Tenements (Scotland) Act 2004; Sheriff Court Practice, Macphail, 3^rd ed, paras 9.68 and 4.114; and Keenan v The Corporation of the City of Glasgow 1923 SC 611. I also considered Bell's Principles.

[5] Having heard the evidence and submissions, I made the following findings-in-fact.

Findings in fact

[6] Carbeth comprises nine flatted dwelling houses. The pursuer's flat is called the Strathclyde Suite. Mr Garvie is the owner of the flats now called the Strathearn Suite. The first defender is the proprietor of the flat known as Strathyre Suite. The second defender was formerly the owner of the flat known as Strathaven Suite.

[7] Each of the nine flats is subject to the terms of a Deed of Conditions by Killearn Developments Ltd, recorded in the Division of the General Register of Sasines applicable to the County of Stirling on 12 December 1985 ("the Deed").

[8] Clause FIRST of the Deed provides that various parts of Carbeth, including the foundations, main walls, all other external walls, internal supporting walls, roof, gutters, chimney heads, drains, rain pipes and others are to be held by the proprietors of each of the flats, and their respective executors, heirs, disponees, assignees and successors in common for the common use and benefit of the flat proprietors and the aforesaids. These items are referred to as "the common subjects".

[9] Clause SECOND of the Deed provides that each of the flats is to be held by the proprietors thereof and their executors, heirs, disponees and successors whomsoever in all time coming, under the burden of maintaining in good order and repair and from time to time renewing the common subjects jointly with other flat proprietors.

[10] Clause NINTH of the Deed provides that all expenses and charges incurred for common repairs, renewals, restoration and generally all work to be done to the common subjects shall be payable by the flat proprietors in the proportions which the gross annual value of the individual flatted dwelling house bears the gross annual value of the subjects as a whole. Calculated by that method, the first defender's share of the cost of such repairs is 9.39% and the second defender's is 9.93%.

[11] Clause SIXTH of the Deed makes provision for a majority of the proprietors to order to be executed any repairs, renewals, painting or decoration of the common subjects and to appoint anyone of their own number, or any other person (the managing agent), to take charge of all such things as may competently be dealt with and to delegate to that agent the whole rights and powers exercisable by a majority of the flat proprietors.

[12] Clause TENTH of the Deed provides that that person, being the managing agent, shall be entitled to collect from the proprietors of the flats their proportion of inter alia expenses and charges for work done and any other sums for which the flat proprietors may become liable and that in the event of any of the flat proprietors failing to make payment within one month after the same is due, the managing agent shall be entitled to sue for and recover the same in his own name.

[13] These provisions of the Deed are community burdens which apply to each of all of the flats, including those of the pursuer and the first and second defenders.

[14] Clause SIXTH of the Deed also provides for the setting up of a sinking fund to be controlled by the managing agent.

[15] A bank account for what was referred to by the proprietors as a 'common fund' had been set up in about 1991. At some stage there seems to have been agreement among the proprietors that that the proprietor of each flat was to pay £50.00 per month into that bank account. The precise circumstances in which a decision to that effect was taken are not known to any of the parties.

[16] When the pursuer purchased her flat, Carbeth was not "mortgageable" (sic) because of the condition of it. This was common knowledge.

[17] On taking up occupation, the first defender told the pursuer about the requirement to pay £50.00 per month towards a common fund. The pursuer began paying that sum. She made her first payment by cheque and thereafter continued to pay by Standing Order.

[18] When Mr Garvie purchased his flat in May 2006, he knew that it had a debt registered against it. He entered into negotiations with the first defender about payment of it.

[19] The question of common repairs to Carbeth and how these were to be organised and paid for had been a subject of discussion among the proprietors thereof for a number of years. The first defender had been actively involved these discussions. In about 2003, she was a prime mover in recommending that the various proprietors, as a group, engage David Cochrane, a consulting civil and structural engineer, to provide advice on the repair works required to the main gable wall of the west wing ("the west wall"), being the wall which was eventually repaired (see further below). Mr Cochrane prepared a report and Scheme of Repairs. He noted that the west wall, which was an essential part of the building, had a substantial crack in it and that a lintel over a lower window was not level. His opinion was that if the wall collapsed, this would affect the rest of the building and the west wing would lose its frontage.

[20] The proprietors agreed that Mr Cochrane be instructed to supervise and co-ordinate the repairs. Some estimates were obtained for the repair works, including one from contractors called Hunter & Clark. The estimate was put to the co-owners at a meeting but Mr Cochrane did not receive instructions to take matters any further and no repairs were effected at that time.

[21] By 2007, Carbeth was in a poor state of repair. The most serious defects were to the west wall and the roof. After the pursuer took up occupation of her flat, the condition of the west wall continued to deteriorate. The pursuer shared her concerns about the condition of the wall with the other proprietors.

[22] On 26 January, 2007 there was a meeting of the Carbeth residents. It was attended by five proprietors including the pursuer, the first defender and Mr Garvie. The latter had a proxy on behalf of another proprietor who had sent his apologies. The first defender chaired the meeting. The minutes (Number 5/1 of Process) record that the following matters were discussed and agreed:

a. Fiona Baverstock was to make enquiries as to what needed to be done to make Carbeth mortgageable;

b. Fiona Baverstock was to become the new "treasurer" and was to become a signatory to the relevant bank account, which had been opened in 1991 (Number 5/3(b) of Process);

c. a new system was to be set up by Ms Baverstock in her capacity as treasurer to avoid debts to the "common account" accruing;

d. advice having been received as to the priority list for major works, the first defender said that this should be followed in order of priority but that contractors ("trades") should not be asked for updated quotes until there was 'money on the table' in a separate account, showing a financial commitment from owners, and that money set aside for major works should not be mixed up with 'common account money';

e. the first defender undertook to obtain advice about a separate account for major works.

[23] At that meeting, Mr Garvie was told that he was expected to pay a monthly contribution to the common fund for maintenance such as grass cutting and smaller repairs. There were arrears but no system for collecting them. A system for collection was suggested by the first defender and agreed by those present. A copy of the minutes was circulated by the first defender to all of the co-owners.

[24] The first defender was actively involved in negotiations with Mr Garvie, in his capacity as an owner of the Strathearn Suite, concerning payment of sums due by the previous owner of that property and which had resulted in a registered debt being recorded against that property. At her instance, a further meeting of the proprietors was arranged for 23 August 2007 to discuss, among other things, that issue.

[25] There was a sudden development on or about 16 August 2007, when a large crack appeared in the external west wall. The pursuer contacted Mr Anderson, building standards surveyor at Stirling Council and explained the situation to him. He inspected the property, declared the wall to be dangerous and said it could not be left as it was.

[26] In compliance with his responsibilities, Mr Anderson issued a letter on 17 August 2007 to all of the proprietors of Carbeth: Number 5/20 of Process. Letters of this type are a serious matter for proprietors and require compliance on their part. In the event of non-compliance, the regulatory authority (in this case, Stirling Council) can exercise its statutory powers to have the work completed and re-charge proprietors for the cost thereof.

[27] That letter

a. stated that the proprietors were to erect a protective barrier (i.e. a fence) which was to be at least 2 metres high and located a minimum 1.5 times the height of Carbeth from the building; and

b. intimated that a dangerous building notice would be served on the proprietors by Stirling Council.

[28] As not all of the proprietors of the various flats lived in Carbeth, Ms Baverstock arranged for a copy of the letter to be sent electronically to all of them.

[29] In view of his prior involvement with Carbeth, Ms Baverstock also contacted Mr Cochrane. He visited Carbeth on 17 August 2007 to carry out an inspection. Mr Cochrane's assessment was that west wall had deteriorated considerably since the previous inspections 31/2 years earlier. He recommended that Hunter & Clark (chosen because of their prior involvement in tendering for repairs which had not, in the event, been executed) be instructed to (i) erect the fencing required by the letter of 17 August and (ii) carry out holding measures to secure the stonework not only on safety grounds but also because of the risk of a further partial collapse of the wall, since such a collapse would almost certainly lead to the need for further repairs and hence increased costs.

[30] Ms Baverstock contacted the other proprietors with information about Mr Cochrane's recommendations and following a vote by email, obtained agreement from a majority of the proprietors to proceed in accordance with them. The works recommended by Mr Cochrane, namely the erection of a fence and scaffolding at cracked wall were carried out by Hunter & Clark Ltd on about 20 August 2007.

[31] All of the co-proprietors, including the first and second defenders, knew that both a fence and scaffolding had been erected and why this had been done.

[32] The meeting convened for 23 August duly took place. The meeting was attended by the proprietors of all but one of the flats. The pursuer, Mr Garvie and both defenders were present at it. The meeting was quorate in terms of the Deed.

[33] Although the primary purpose of the meeting was to discuss the resolution of the registered debt attaching to Mr Garvie's flat, Ms Baverstock, at the commencement of the meeting, requested that the crack in the west wall be discussed. Those present agreed to that. Arrangements had been made for Mr Cochrane and associate, Mr Jan Lewkowicz, a building surveyor, to attend the latter part of the meeting in that connection.

[34] The first defender took the minutes of the meeting: Number 5/3 of Process.

[35] The first defender provided an explanation as to the sum being claimed from Mr Garvie by reference to the registered debt; the outlays made from the common fund bank account; and the money due to "...the commonly agreed scheme of £50 per month per flat": Number 5/3(b) of Process.

[36] After some negotiations about a possible compromise, a vote was taken among the proprietors present on two alternatives: that Mr Garvie should pay £5500.00 or that he should pay £6000.00.

[37] The matter was put to a vote (the majority being determined by reference to the combined total of the gross annual values of the individual flats of those present voting for the respective proposals: Number 5/3(b) of Process). A contribution of £6000.00 by Mr Garvie was approved and the first defender undertook to send a Discharge Notice to the Registrar on receipt of cleared funds in the Carbeth common fund bank account: Number 5/3(c) of Process.

[38] Following discussion about other matters, the issue of repairs to the west wall was discussed at length: Number 5/3 (d) of Process.

[39] Mr Cochrane explained the steps that had been taken and his discussions with Mr Anderson. He explained that Hunter & Clark had erected a fence and that scaffolding had also been put in place which acted as a 'shore 'at a cost of about £5000.00. (By mistake, the minutes of the meeting wrongly recorded that the fence acted as the 'shore'.) Both defenders were fully aware that the fencing and scaffolding works had been carried out and why. They made no objection to this. Mr Cochrane was told "well done" at the meeting for the steps he had taken thus far.

[40] Mr Cochrane also produced a quotation from Hunter & Clark. It was agreed that he should obtain further quotations from at least three other contractors. Mr Cochrane explained that he would scrutinise the Hunter & Clark quotation to make sure that it was comprehensive, before inviting other tenders. He warned the proprietors that if, after removing the wall, further damage was discovered, costs could increase. He explained that in embarking works of this type, there was always an element of the unknown; that with an older building, it was more likely that things would be found during the works which were not quite as they were imagined to be; and that with works to an existing building, it was necessary to have a contingency sum or agreement of rates for any extra works which might materialise.

[41] Mr Cochrane explained that Hunter & Clark price of £39,000 plus VAT did not include scaffolding, the costs for which could continue to increase if works were delayed due to the need for planning consents by Historic Scotland and other relevant bodies. Mr Cochrane was asked to ascertain the weekly costs. He then outlined his own fee structure.

[42] Mr Garvie suggested that the total figure (for the works) could be about £50-£55,000.00.

[43] Mr Lewkowicz explained that listed building consent was required and that it would take about eight weeks for Historic Scotland to deal with that. Mr Lewkowicz outlined his own fee structure.

[44] The meeting ended on what appeared to be an amicable basis, with an agreement in principle that the repairs to the west wall had to be carried out and that more estimates should be obtained.

[45] Following that meeting, Mr Lewkowicz embarked on obtaining listed building consent while Fiona Baverstock, who was at that time the treasurer of the Carbeth Residents Association, liaised with Mr Cochrane, and with the various proprietors, with a view to obtaining other estimates for the necessary repairs and to reaching agreement on the contractors to be instructed.

[46] On 24 September 2007, the Dangerous Building Notice ("the Notice") foreshadowed in the letter of 17 August was issued to the proprietors of the flats at Carbeth: No. 5/4 of Process. Among other things, the Notice required that the steps which the proprietors must take included:

a. commissioning a suitably qualified person to design a Scheme of Repairs ("the Scheme");

b. obtaining Listed Building Consent prior to the commencement of work on the wall;

c. submitting the Scheme to Stirling Council for prior approval by the Building Standards Service, Conservation Officer and Planning Service;

d. ensuring continuity of construction of the wall sections to ensure mutual support and stability of adjacent sections;

e. carrying out the repairs in accordance with the agreed Scheme;

f. providing adequate measures to ensure site safety was maintained until the repair works were completed; and

g. required to reduce or remove the danger constituted by the dangerous building.

[47] The requirements of the Notice further justified the need for scaffolding to provide shoring to prevent further damage prior to or during the repair works and to provide a suitable working platform while the repairs were being executed.

[48] Carbeth being a listed building, there were exacting planning and building consents to be complied with. In summary, the stonework in the cracked wall had to be removed stone by stone and rebuilt with the stones in exactly the same place. All materials and methods of work had to be approved. These issues delayed the tendering process and made it more difficult to find suitable contractors. In the meantime, both the fence and the scaffolding remained in place.

[49] The first defender provided Ms Baverstock with a list of the names of sixteen contractors who were to be contacted for estimates. Of the contractors contacted, one declined to price for the job. Another said that it was too difficult to price it and offered to do it on a "cost plus" basis only. The difficulty with a "cost plus" contract is that it requires very close ongoing supervision of the works on behalf of the client (in this case, the co-proprietors).

[50] Despite a large number of contractors being asked to tender, it proved difficult to obtain favourable prices, mainly because of the complex planning consent issues. All of the contractors who tendered did so in respect of the actual repair work only i.e. excluding the cost of scaffolding.

[51] In due course, an estimate was obtained from a contractor recommended by Stirling Council. Including VAT, it was about £14,000.00. If realistic, it was a tender which could not be refused as it was substantially cheaper than the next best price. Accordingly, that tender was accepted, but the contractor then declined to do the work. This lead to significant delay, as the search for a suitable contractor had to begin again. In the meantime, the scaffolding costs continued to accrue.

[52] Eventually, a tender was received from Paul Hinde trading as Direct Stone Specialists, for the sum of £24,475, exclusive of VAT. Mr Cochrane had no experience of Mr Hinde as a contractor, so to that extent, he was an unknown quantity.

[53] Mr Cochrane put together a report on the tenders. The main comparison was between the quote from Hunter & Clark and the quote from Mr Hinde. The latter was substantially cheaper than the former. Mr Cochrane pointed out that although Mr Hinde was offering a good price, he was a "new, young company" whose track record was not known. Nevertheless, Mr Cochrane's view was that it seemed to be worth taking a chance on Mr Hinde. It was put to the proprietors that the estimate be accepted, as it was £14,000.00 cheaper than the next nearest price.

[54] By this stage, a number of the proprietors were not on speaking terms with one another. Relations being at a low ebb, it was unlikely that the proprietors would attend any meeting which might be arranged. In September 2008, a vote was taken by email on the proposal to accept Mr Hinde's estimate. It was approved by a majority. The first defender voted in favour: Number 5/24 of Process. Shortly thereafter, Mr Cochrane was given authority to accept Mr Hinde's tender.

[55] At about the same time, the various proprietors were asked to put money into a repair fund for the west wall, based on an estimate of about £30,000.00. Both defenders and one other proprietor declined to contribute. Ms Baverstock sought and obtained from a majority of the proprietors authority to (i) obtain legal advice from Messrs Muirhead Buchanan, Solicitors on how matters might be progressed and (ii) after that advice had been received, to take legal proceedings to get the money in from the proprietors who were not prepared to pay voluntarily: Numbers 5/25 - 5/29 of Process.

[56] In the meantime, Mr Hinde had been required by Stirling Council to produce details of his proposed works for approval, so that the Council could be sure that the work would be completed to its specification. Mr Cochrane liaised with Mr Hinde's architect in relation to this and drawings were produced. These were considered at a meeting with Stirling Council in January 2009 after which Mr Hinde was instructed by Stirling Council to produce revised drawings. That process dragged on until May 2009, when approval was eventually given for the repairs to proceed. These were scheduled to begin in June, 2009.

[57] In about May 2009, Fiona Baverstock moved away from Carbeth. She remained as 'treasurer' but the pursuer began to assist her in co-ordinating the repair works. On 19 May, 2007, on the pursuer's instructions, letters were issued by Muirhead Buchanan, Solicitors to the first defender and her solicitors, Messrs Hardy Macphail, enclosing details of the apportioned cost of the works: Numbers 5/5 and 5/6 of Process.

[58] By letter dated 29 May, 2007 Hardy Macphail intimated the first and second defenders' agreement to pay the estimated costs of £2870.33 and £2979.33 respectively towards the cost of the repair works: Number 5/7 of Process.

[59] Hardy MacPhail's letter intimated that the defenders were "... anxious for the repairs to be carried out and for the scaffolding to be removed." They intimated that the defenders' respective shares of the cost of these repairs would be paid by them on receipt of the appropriate certificate from Mr Cochrane, who was supervising the works.

[60] In June 2009, the repair works commenced. Payments to Mr Hinde for the repairs were to be made through David Cochrane's client account; payments to Hunter & Clark for the scaffolding were to be made by the co-proprietors directly.

[61] The west wall was of traditional construction, with an inner and outer 'skin' of stones and a rubble core. In accordance with the Scheme agreed with Stirling Council, the outer skin was to be removed; each stone coded; the inner and out walls 'tied'; and the outer skin rebuilt with the stones replaced in exactly the same pattern as before.

[62] However, once the outer wall was removed, thereby allowing closer inspection, it turned out that a wooden window lintel had rotted. The replacement of the lintel was essential. The Council could have insisted on the inner wall being replaced in stone. This would have been substantially more expensive. The proposed solution was the rebuilding of the inner wall in concrete blockwork and installation of a concrete lintel. A detailed estimate for the necessary works was obtained from Mr Hinde by Mr Cochrane at an additional cost of £12,500.00. These additional costs were reported to the owners. Additional Listed Building Consent was required. It took several weeks to obtain this from Stirling Council. Authority for these additional works to be instructed were obtained from a majority of the co-proprietors by Fiona Baverstock and intimated to Mr Cochrane who in turn instructed Mr Hinde to proceed.

[63] A further problem arose in relation to the top lintel which, on being removed, broke into three parts. It had to be repaired or replaced. The proposed solution was to repair it with a steel plate. Further approval from the Council was required for this. In the course of the repairs, further work to the roof became necessary. All of these variations caused delay and expense. All of the proprietors knew this as the works progressed.

[64] Given the nature of the work to be carried out, the scaffolding proved its worth. As well as providing a support for the wall prior to and during the works, it also provided a working platform. If the scaffolding had not been in place, it would have been necessary to carry each stone down to ground level, leave these marked and laid out on the ground and then carry them back up when the wall was being rebuilt. That method of working would have substantially increased the duration of the works.

[65] On 9 July, 2009 Mr Cochrane issued the first Interim Certificate in respect of the initial work done by contractor, Mr Hinde: Number 5/11 of Process. That initial work had disclosed the problems with the lintels which in turn had necessitated the removal of additional unsafe masonry. The estimated cost of additional work by Mr Hinde was circulated to the proprietors as was information about the need for additional work to remove and replace infested timber sarking and associated roof works for which Mr Hinde had been asked to provide a detailed estimate: Number 5/10 of Process.

[66] By letter dated 17 July, Muirhead Buchanan sent copies of these documents to Hardy MacPhail with a request for payment of the first defender's 9.39% share (£713.64) and the second defender's 9.93% share (£754.68).

[67] In due course, a detailed estimate for the additional works was received from Mr Hinde. It was circulated and acceptance of it was approved by the majority of the proprietors by a vote taken by email.

[68] On 21 August 2009, Mr Cochrane issued a second certificate for the (net) sum of £13,777.00: Number 5/16 of Process.

[69] On 3 September, 2009, the pursuer issued details of the additional work and related costs to the proprietors, including first and second defenders: Number 5/19(c) of Process.

[70] If the additional works had not been approved by the co-proprietors and executed, they would still have needed to be done. If necessary, the Council would have taken over the works and completed them.

[71] Around this time, Hunter & Clark began to press for payment of their outstanding bills. It was explained to them that some proprietors not paid their shares of the scaffolding costs and initially Hunter & Clark were quite considerate. In due course, Hunter & Clark began to lose patience and threatened to remove the scaffolding. Removal of the scaffolding would not have been viable. Before the works commenced, it was providing support. This was even more critical once the necessary downtaking of the wall began.

[72] As the works progressed, the first and second defenders and one other proprietor did not pay their respective shares. The result was that there was a shortfall in the funds available to pay Mr Hinde. Understandably, Mr Hinde threatened to cease work if he was not paid. Mr Garvie met the shortfall of about £8000.00 out of his own funds to allow the works to be completed.

[73] At that stage, there was £5000.00 in the common fund. It was proposed to the proprietors by email that this sum be offered to Hunter & Clark in full and final settlement of the then outstanding bill. A vote was taken by email and a majority of the proprietors agreed to that proposal which was then put to Hunter & Clark who accepted it. The result was a negotiated discount of £8861.00 which was deducted from the total due to Hunter & Clark by the various proprietors.

[74] By 12 October, 2009 a further certificate had been issued by Mr Cochrane. Neither defender had paid any of the sums requested of them. The first defender's share by that stage amounted to £3295.89 and the second defender's to £3485.43. Both defenders were warned of the possibility of proceedings if they did not pay voluntarily: Number 5/13 of Process.

[75] By March 2010, all of the repair works had been completed and certified. The work was completed to a high standard by Mr Hinde. The overall condition of Carbeth and the values of the flats within it were improved by the work done.

[76] There was a final negotiation between Mr Hinde and Mr Cochrane on behalf of the co-proprietors to agree a final figure for the completed work. Mr Cochrane negotiated what he believed to be a fair settlement: Number 5/19(a) of Process.

[77] The final invoices from the contractor, Mr Hinde; the engineer, Mr Cochrane, and scaffolders, Hunter and Clark were issued. These brought out a total for contractor and professional costs for the wall restoration of £47,136.48 of which the first defender's 9.39% share was £4426 .59 and the second defender's 9.93% share was £4681.13: Number 5/19(a) of Process.

[78] The total scaffolding bills amounted to £36,543.75, of which the first defender's share was £3,429.81 and the second defender's £3,628.63. The discount in the scaffolding negotiated by the pursuer reduced the first defender's share of the scaffolding costs by £832.43 and the second defender's share by £880.30. The first defender had made an initial payment to account in respect of the scaffolding costs of £540.00. The defender had made payment to account in respect of the scaffolding costs of £571.00.

[79] At no stage did either defender suggest to any proprietor or Mr Cochrane that any of the proposed works or variations thereto should not be carried out, nor did they propose any alternative method of completing the repair works to the west wall. The respective shares of the total costs of the works have been paid to the contractors via the pursuer by all of the proprietors except the two defenders. The pursuer was authorised by a majority vote of the proprietors to recover the sums due by the defenders.

[80] Since November 2007, the first defender has not made any payment to the common fund. The second defender made no payments thereto between December 2006 and his ceasing to be a proprietor in May 2012.

Submissions

Pursuer

Liability of the defenders to contribute to the costs of repairs

[81] The defenders have admitted that they are, or were, the proprietors of two of the flats in Carbeth at the relevant time, so the starting point for liability is in the titles and the terms of the Deed, which applies to each of the flats: Production 6.1.

[82] The definition of "common subjects" in the preamble includes "... the foundations, main walls, all other external walls ... roof, gutters, ... etc."

[83] It is clear from this that the evidence led from the pursuer and her witnesses, including Mr Cochrane, that the works which were carried out to the building related to the common subjects.

[84] The Deed goes on to provide that:

"SECOND Each of the said flatting dwelling houses shall be held by the proprietors thereof and his or her executors ... under the burden of maintaining in good order and repair and from time to time renewing the common subjects jointly with the other flat proprietors."

[85] The terms of that clause were accepted by both defenders in evidence.

[86] Notwithstanding any contrary position put forward by the defenders, there was sufficient evidence to find it proved that repairs were carried out to the common subjects and that the defenders were under a burden of contributing to the cost of these.

The repairs

[87] The next issue is whether the repairs which were carried out were necessary repairs. There was ample evidence from the pursuer's witnesses to enable this to be found to be established, including the description of the works which were carried out and the admitted fact of a repairs notice having been served by the local authority.

[88] Despite some questioning regarding the need for scaffolding, no evidence had been led by the defenders to either suggest or prove that any of the works which were carried out, and in respect of which payment was being sought, were either not necessary or did not relate to the common subjects. It could accordingly be found proved that the works were carried out and were necessary repairs.

[89] Evidence had been led in detail regarding the extent of the works and the total costs of these. There was no challenge made to the total cost of £47,136.48. The need for this detailed evidence was because of the defenders' denials on record.

Scaffolding

[90] The position of the pursuer is that this was erected as an emergency protection following the issue of the repairs notice by Stirling Council and that this was arranged and co-ordinated by Mr Cochrane following consultation with the building control officer. The evidence of Mr Cochrane, regarding the need for what was erected, was clear and precise and it can be found proved that this was required. Mr Cochrane's evidence should be accepted in its entirety. It had also been confirmed by Mr Anderson - and his evidence was clear - that he had been happy to leave recommendations as to what was to be done to the structural engineer and indeed took comfort from his involvement.

[91] There was no challenge to the actual costs of scaffolding incurred, all of which was vouched and it could be proved that it amount to £36,543.75.

[92] The only challenge made about the scaffolding is in Answer 3, where it is averred: "As a precautionary measure it was not necessary to erect scaffolding to support parts of the building." The second defender's position in evidence seemed to be the scaffolding was not needed to comply with the notice, Production 5.20 of Process. But it was clear that if the scaffolding had not been there, there was a risk of collapse. Had there been a collapse, it was likely that there would have been additional damage and hence additional cost to effect the remedial works.

[93] In any event, this assertion was contradicted by the evidence of Mr Cochrane, who was quite clearly of the view that the shoring of the building was required and that the scaffolding fulfilled this role, as well as providing access and a working platform for the repairs in due course. Mr Anderson, a witness for the defenders, had also said that scaffolding was a supporting measure and that there was a danger of collapse if it had not been put in place.

[94] In any event, there would have nothing to stop either of the defenders at any time from seeking the approval of the other proprietors to have any part of the scaffolding removed if it was considered to be surplus to requirements. Mr Crossan accepted that he knew the scaffolding had been erected and that he did nothing. It was clear therefore that he was content to leave the scaffolding in place. He could have called a meeting had he not been satisfied with the position, but he did not do so.

[95] There was also a suggestion by the defenders that the erection of the scaffolding was never authorised by the owners. That was clearly not correct. There was clear and unchallenged evidence that there was a meeting of all but one of the proprietors a few days after the scaffolding was erected, on 23 August 2007, and the meeting was advised of this and that there was no dissent. The minutes of that meeting were taken by the first defender. She accepted as much in her evidence, albeit reluctantly. The silence of the defenders about this matter could appropriately be taken as their consent.

[96] In passing it should be noted that the position of both defenders was that they did not know or admit that Mr Cochrane had arranged for the scaffolding to be erected. That was plainly not the case, because Mr Crossan was living in the property at the time and both had attended the meeting on 23 August. The defenders also lead a general denial that they attended that meeting and, moreover, the first defender denied that she had taken and prepared the minutes. These points were eventually only admitted by each of the defenders in response to formal notices to admit shortly before the proof.

[97] This had been typical of the approach of both defenders throughout this matter, where they had been unwilling to bring themselves to admit even non-controversial matters and had put the pursuer to the trouble of having to lead evidence to prove all of them. This attitude continued with the first defender when, on giving her evidence, during which she appeared to be unwilling to admit anything at all.

[98] It was a matter of admission that the respective liabilities for common charges, in terms of their titles, was 9.39% in respect of the first defender and 9.93% in respect of the second defender.

[99] After taking account of the sums paid by each of them in respect of the first scaffolding bills and the discount obtained by the pursuer, none of which was the subject of any challenge, the sums due by each of them for repairs on scaffolding costs are £6,483.97 and £6,848.46 respectively. An apportionment showing how these figures had been calculated had all been provided to the defenders prior to these proceedings.

Procedural challenges

[100] Apart from minor challenges in the pleadings to whether or not all of the scaffolding was required or authorised, the only defence of substance which the defenders appear to be putting forward is that the works which were carried out were not authorised in accordance with the provisions of the Deed. Each of the defenders avers: "The defender admits liability to pay a ... share of the cost of repairs which have been instructed in accordance with the Deed of Conditions."

[101] In passing, it should be noted that the defenders' positions have changed. For example, the second defender, in his evidence, appeared to adopt the position that because decision had been taken by e-mail rather than at meetings (as had previously been the case), that was a ground of objection.

[102] Significantly, neither of the defenders has actually paid any share of the cost of the repairs and each has only paid a small proportion of their shares of the scaffolding bills.

[103] The thrust of the cross-examination of the pursuer and Mr Garvie was that either no meeting had taken place, at which the various proprietors were asked to vote on and approve the works which were carried out, or that the pursuer had not produced written evidence showing that each of the various proprietors had actually voted in favour of the works being carried out.

[104] Each of these lines of attack were simply irrelevant and should not be entirely disregarded. Likewise the evidence of Mr Crossan.

[105] With regard to meetings, it was clear from the evidence that there was a discussion at the meeting on 23 August 2007 on the fact of repairs needing to be carried out, that the works would be carried out and that estimates would be obtained. Given that this was agreed by all, there was simply no need for there to be another meeting to discuss this further. It was quite appropriate for the matter to be dealt with in the way that it was, with estimates being obtained, initially by Fiona Baverstock and then by the pursuer, that information circulated to all of the proprietors and each of them being invited to indicate whether or not they were agreeable to the works being instructed. It was simply ridiculous for the second defender to say in evidence that he did not know if there had been a majority vote in favour.

[106] Each of the defenders was then provided, directly and also to their solicitor, with the same information as everyone else and each of them indicated unequivocally that they wished the works to be carried out by the nominated contractor, Paul Hinde: Number 5/7 of Process.

[107] Neither of the defenders made that approval conditional or there being any meeting of proprietors and neither of them intimated any dissatisfaction with the procedure being followed. They had many opportunities to do that, but both had accepted in evidence that there was correspondence that they simply did not reply to.

[108] All that was different in respect of the two defenders was that they, unlike the other proprietors, refused to put their shares on the table up front, this despite the e-mail correspondence including an e-mail from the first defender saying that this should be done. Thus, it seemed a strange position for her to adopt.

[109] Both defenders had indicated that they would be passing their payments to their solicitor and these would be released on the issue of the engineer's certificates. This was a concession granted to them, but nobody else. Seven engineers' certificates were then issued and exhibited to them, but not one single penny was paid nor, according to the evidence that they had given, were the defenders' solicitors ever put in funds. None of these certificates was ever challenged.

[110] The Deed simply does not provide that owners are only liable for a share of the cost of repairs if these are agreed by majority vote a meeting. The provision in the Deed regarding this is to provide a mechanism for deciding repairs. However, it is not stated as being an exclusive mechanism and its existence does not preclude matters being agreed in any other way by the proprietors. It would be absurd to suggest that there had to be a meeting to agree matters such as grass cutting.

Proof of votes

[111] Much time was taken up in cross-examination on whether the pursuer had written proof of each of the other proprietors having voted for the works to be carried out and each of the pursuer and Mr Garvie did indicate that this was the case and that there was a substantial amount of e-mail correspondence about this whole matter. The first defender appeared to accept that too.

[112] The pursuer was also questioned on whether she could prove that the other owners were agreeable to her pursuing this action. Significantly, however, it was never suggested at any time to either the pursuer, or Mr Garvie, that the other proprietors had not in fact voted to agree to the works being carried out or to the proceedings being taken. There is, accordingly, the unchallenged evidence of each of these witnesses to the effect that the other proprietors did all agree and that these matters can be held proved without qualification. It should be borne in mind, however, that any failings in the way which the works were authorised were effectively superseded by events and in the cases of each of the defenders, by their own actings.

[113] Each of the defenders had specifically agreed to the repair works being instructed on their behalf by the pursuer. The letters to each of them by the pursuer's solicitors specifically state in the first paragraph that the pursuer, then known as Jackie Westwood, was acting for various of the co-owners: Number 5/5 of Process. The response from their solicitor makes it quite clear that they wished the works to be carried out and would pay their shares. They are clearly instructing the pursuer to instruct the commencement of the works on their behalf. Thus there was potentially an issue of personal bar which arose of the defenders now sought to move away from that position.

[114] It simply beggared belief that the defenders should be trying to assert that the pursuer had no authority to instruct these works and that they had no obligation to make any payment to her, whether individually or on behalf of those others on whose behalf she incurred liability.

[115] In any event, the pursuer is a proprietor of one of the other dwelling houses and in that capacity is entitled to enforce the title conditions against the defenders. As a matter of fact, any one of the other proprietors could have brought the current proceedings against the defenders to enforce payment by them of the sums due by them in terms of their title deeds: Title Conditions Act 2003, section 52.

Tenements (Scotland) Act 2004

[116] The provisions of this Act apply and if it is the case (which is not conceded) that there were any missing elements in the way the works were instructed and carried out, or decision taken, there are a number of provisions of the Act which support the pursuer's position and would cure any defects.

[117] The Act provides a model Tenement Management Scheme in terms of Schedule 1. This is intended not only to provide rules to be followed by the owners of flats in tenement properties where there are no such provisions in the titles, but also to provide provisions which are supplementary to any such title provisions.

[118] Section 4 of the Act sets out the circumstances in which each of the various rules of the Tenement Management Scheme apply. Dealing with their applicability in the present case, Rule 1 deals with the cope and interpretation. Of this, Rule 1.2 is significant in that this provides that insofar as not already made scheme property by the terms of the titles, i.e. already common property or property to be maintained in common in terms of title burdens, property also includes various particular items and these include external and supportive walls.

[119] Rule 2 deals with making scheme decisions and this is stated to apply unless a tenement burden provides procedures for making decisions and the same procedures apply for each flat.

[120] In this instance, while the Deed does provide a mechanism for making decisions, it is not stated to be an exclusive mechanism, or an obligatory mechanism. It is reasonable to conclude that Rule 2 will apply here, as this contains provisions which are much more extensive than as contained in the titles.

[121] Rules 2.6 and 2.7 are of note. Rule 2.6 gives any owner the power to call a meeting to make a scheme decision, with the notice period being forty eight hours.

[122] Rule 2.7 makes provision for any owner to simply consult with the others if he does not wish to call a meeting to make a scheme decision and in that event votes are to be counted. Significantly, there is nothing in the scheme which requires any such votes to be in writing.

[123] Rule 6 covers procedural irregularities and this applies to the extent that there is no tenement burden making provision as to the effect of any procedural irregularity in the making of a scheme decision on (a) the validity of the decisions; or (b) the liability of any owner affected by the decision.

[124] Rule 6 states that any procedural irregularity, in the making of a scheme decision, does not affect the validity of the decision.

[125] If it had been necessary, this would have been of aid to the pursuer in this case. Given that the works were carried out were proven to be required, that all of the proprietors (including the defenders) agreed to these being carried out, and they were carried out, any irregularity in the decision making process is irrelevant and has no effect on the validity of the decision of the liability of the defenders.

[126] Rule 7 relates to emergency work. This applies where, as here, there is no title burden making provision for an owner to instruct emergency work or as to the liability of owners for that work.

[127] This provides simply that any owner may instruct or carry out emergency work, that the owners are liable for the cost of this as if it was a scheme decision and that the emergency work means that work carried out to prevent damage to any part of the tenement are in the interests of safety.

[128] Rule 8 deals with enforcement. This applies to supplement any other provision of the scheme, subject to any different provisions in the tenement burden.

[129] Specifically, rule 8.3 states: "Any obligation imposed by the scheme or arising from a scheme decision may be enforced by any owner".

[130] Rule 8.4 deals with enforcement by a third party. This allows the owners to authorise in writing any person to enforce an obligation on behalf of one or more owners and that such a person, in doing so, may bring any claim or action in that person's own name. The suggestion that it is not open to the pursuer to bring this action in her own name is not correct. Given that she is an owner, she is clearly entitled to enforce the defenders' obligations.

[131] She also has the power to instruct any person to bring an action to enforce the obligation, with that person raising it in their own name. That being so, it is ridiculous to suggest that she could not then raise an action in her own name. It might be suggested that if others were to instruct her to act on their behalf, then this would have to be writing. Apart from the pursuer being an owner, rather than a third party, any irregularity would be covered by Rule 6.

[132] So far as the 'float contribution' was concerned, the strange position here was that the pursuer was not involved in the original scheme decision taken to impose a £50.00 per month levy on each property. She and other proprietors were advised of this by the first defender when they became owners, and this was something which the first defender sought to impose.

[133] In particular, the first defender was instrumental in registering a notice of potential liability against the property of Mr Garvie, and who led the pursuit of him for payment of that debt.

[134] The continuing liability for this was confirmed at the meeting on 26 January 2007, with the minutes taken and prepared by the first defender. There was never any revocation of this scheme decision. The defenders simply stopped paying while everyone else continued.

[135] Leave of the court was sought to amend the sums claimed from the first defender in this respect, bringing the position up to February 2013, which was an additional £1,700, leading to an increased sum sued for of £3,200. In respect of the second defender, it was an additional £50 per month from May 2010 until June 2012, which was an additional twenty three months. The sum sued for should be increased to £3,200 in respect of him.

Defenders

[136] It was accepted that the law of the tenement applies in this case, but it was submitted that the pursuer's case could only succeed if what was done had been done in terms of the title deeds. No statutory case had been pled: Macphail, para 9.68; Keenan v Glasgow Corporation. There were no averments that any reliance was being placed on the 2004 Act. Accordingly, any finding which might be made in respect of the 2004 Act rules were not relevant to the determination which had to be made in this case.

[137] Before there could be a right to instruct repairs, the Deed provided that there had to be a meeting of proprietors. The fall-back position was that Rule 2 of the 2004 Act only applied if title deeds did not provide a relevant procedure. The Deed in this case did set out a procedure for making decisions. That meant that Rule 2 could not apply and there could be no claim if the terms of the Deed had not been complied with.

[138] No scheme was agreed at the meeting on 23 August 2007.

[139] Nowhere was there anything pled about works having been done in an emergency. This was a proof before answer. Accordingly the defenders were entitled to take this point.

[140] So far as the May 2009 letter, Number 5/7 of Process was concerned, there was no plea of personal bar. In any event, any claim under the 2004 Act was predicated on a scheme decision having been taken. No such scheme decision was taken on 23 August 2007 and accordingly any procedural irregularities cannot be saved by the provisions of Rule 6.1.

[141] So far as the sinking fund was concerned, the pursuer could only succeed if she could rely on a provision derived from the terms of the Deed.

[142] The past actings of the first defender were not relevant. There had to be an obligation arising from the Deed. No such obligation to make monthly payments was identifiable in the Deed.

[143] Issue was also taken with the entitlement of the pursuer to pursue these claims. No mandate had been produced. Mr Garvie did give evidence that he had given authority for the pursuer to pursue the claim on his behalf but there would need to be evidence in respect of the other proprietors or a written mandate: Macphail, para 4.114. The pursuer is only entitled to sue for her own share and perhaps that of Mr Garvie (being a total of 30.16%).

Reply for pursuer

[144] The requirement for all the proprietors to each sue individually for their share was solved by the 2004 Act.

[145] The case of Keenan v Glasgow Corporation was distinguishable from the present case. That was a case based on breach of statutory liability. The present case is not a "breach" case, where damages are sought.

[146] The 2004 Act provide a structure for management scheme. This is not a case where the pursuer says that the defenders have breach their statutory obligation.

[147] Plea-in-law 1 made it clear that the defenders were being asked to contribute the cost of repairing common subjects. The court was entitled to grant decree.

[148] So far as scheme decisions were concerned, Rules 1 and 2 regulated the matter. At the very least the decision on 23 August 2007 was a scheme decision. In any event, if there was an error on procedural, Rule 6 provided a remedy. Everyone at that meeting agreed as to what was happening. There was no need to have further meetings and the absence of further meetings makes no difference to the pursuer's claim.

Grounds of decision

[149] As I noted at the outset, there are four claims to be considered which are independent of one another. That being so, it is necessary to consider them separately, as disposal of one does not necessarily fall to be mirrored by the disposal in another.

The witnesses

[150] Before dealing with the substance of the claims, it is appropriate that I say a word or two about the evidence. Many of the facts in this case turned out not to be in dispute. Any inaccuracies in the pursuer's evidence I attribute to lack of memory of certain detailed points, rather than to credibility. I was particularly impressed with the evidence of Mr Cochrane and Mr Garvie. Mr Anderson's evidence tended to support the pursuer's case rather than the defenders.

[151] I did not form a particularly adverse view of the evidence of either defender, but there were parts of the first defender's evidence where she appeared to be being somewhat disingenuous. For example, she sought to emphasise that the purpose of the meeting on 23 August 2007 was to "...discuss the debt on (Mr Garvie's flat) and to restore independence to the other owners..". I was not entirely sure what she meant by that but in any event, it was clear from the minutes which she herself prepared that the question of repairs to the west wall was an issue which was extensively discussed at that meeting.

[152] I also noted that the first defender accepted in cross examination that she accepted she should pay "something"; that she had been prepared to contribute at least up to the figure mentioned in the letter of May 2009; and that she had received a breakdown of all the costs of all the works. In my opinion, these were significant concessions.

[153] For his part, the second defender accepted (in examination in chief) that the letter of May 2009 had been written on his behalf; that he was happy for Mr Hinde to be instructed to execute the works; that he acknowledged the repair had to be done; and he had a liability to contribute towards the cost. All of that rather leads me to question why this action is being defended at all. However, he contended that the authority given in that letter was predicated on a majority decision having been taken, although he accepted that the letter did not say that. He was asked whether he was satisfied that payment to the pursuer of the sums claimed satisfy any obligation that he might have to the other co-proprietors. In answer to that question, he said "No". In my view, that question and answer says much about the weakness of the second defender's position in relation to this whole matter. He had the breakdown of the costs. He had access to information in the Deed which would have allowed him to calculate all of the co-proprietors respective shares of these costs. Working out what was due by him to the other co-proprietors if he preferred to pay them on an individual basis was a matter of arithmetic. He has not done so.

Scaffolding & repair costs - first defender

[154] There are three stages which fall to be considered, namely:

a. the period from Stirling Council's letter of 17 August, 2007 to the meeting of 23 August, 2007;

b. the period between 23 August, 2007 and the letter of 19 May 2009: Number 5/6 of Process; and

c. the period from the letter of 19 May 2009 to the completion of the works in March 2010.

[155] Before turning to consider each of these three stages, it is useful to reiterate some of the key facts which were established.

[156] Notwithstanding the lack of candour in her pleadings, it was established that the first defender was a proprietor of a flat at Carbeth. The damaged west wall part of the common property: the Deed, Clause FIRST. In her capacity as a co-proprietor, the first defender was under a shared burden of maintaining in good order and repairs the west wall jointly with the other proprietors: Clause SECOND.

[157] In addition to any obligations arising from the Deed (or at common law), the first defender was subject to statutory obligations to have the west wall repaired: Numbers 5/20 and 5/4 of Process.

[158] So it is clear that the first defender's obligation was not simply to pay a share of repair costs if they were carried out. She was also under an obligation to actively ensure that the repairs were effected. If the work had not been done by the proprietors, Stirling Council would have arranged for the works to be done utilising its statutory powers, and would have been entitled to recover a proportionate share of the cost of so doing from first defender. In passing, I observe that there was clear evidence that if that had proved necessary, the costs of repair would have been higher.

[159] I proceed on the basis that the strict terms of Clause Sixth of the Deed were not complied with, assuming that clause should be interpreted as requiring that there be a properly convened meeting at which a vote was taken. On the evidence, there was only one meeting and no vote was taken at it. But in my view, if the terms of the Deed are to be construed strictly as to the mechanism for making decisions, they must also be construed strictly as to their scope.

[160] The relevant part of the Clause SIXTH provides:

"Any one of the flat proprietors shall be entitled at any time to convene a meeting of all the flat proprietors after not less than 14 days notice in writing being given and it shall be competent at any such meeting by a majority of these present, ... (a) to order to be executed any repairs, renewals, painting or redecoration of the common subjects;..." (emphasis added).

[161] In my view, the words "entitled" and "competent" are to be taken as permissive, rather than restrictive. In particular, they cannot be construed has having the effect of excluding other lawful methods by which the co-proprietors may arrive at a valid decision to execute necessary repairs. Against that background, I find it helpful to analyse the situation by reference to the issues of common law, consent and the Tenements (Scotland) Act 2004.

Common law

[162] It is clear from the title that the 'maintenance burden' is created via the device of making the defined common subjects as common property (c.f. common interest).

[163] The Deed is silent on the question of emergency repairs. That means that (subject to any other relevant statutory rules) the co-proprietors' respective rights and obligations fall to be regulated by the common law.

[164] It is an established and well known principle of the common law of common property, that any one co-proprietor may instruct 'necessary' repairs and then look to fellow proprietors for a contribution towards the cost: Bell's Principles, s. 1075.

[165] In my opinion, the erection of the scaffolding was in the nature of an emergency repair. Put simply, if it had not been put up, the west wall was at risk of further deterioration or even collapse. The decision to put it up was based on the recommendation of Mr Cochrane, who explained his position in evidence. His view was that the scaffolding was needed as a 'shore' to eliminate the risk of further deterioration or even collapse) of the west wall. He was a professional man of vast experience and I was impressed by his evidence. There was no contrary expert evidence. Mr Anderson (a witness called by the defenders) agreed with his recommendation. I am satisfied that the steps taken to put up scaffolding (and erect the fence) were appropriate steps which were taken as emergency precautions.

[166] It appears to me that if a particular step is taken to meet an emergency, such as the risk of a wall falling down, it would fall, by definition, within the meaning of 'necessary'. I am also of the view that the word 'repairs' should not be construed too narrowly. A step which preserves the status quo by preventing further deterioration of subjects prior to them being physically restored, appears to me to amount to 'necessary repairs'.

[167] If that is correct, then whether or not the Ms Baverstock obtained the consent of other proprietors before instructing Mr Cochrane to instruct Hunter & Clark in their turn to erect the scaffolding is nothing to the point. The scaffolding was part of necessary repairs to the wall; as such she was entitled to instruct repairs to it in an emergency; and the first defender is obliged to contribute to the cost.

[168] In my view, the second stage from August 2007 to May 2009 can be analysed in much the same way.

[169] While the initial emergency had been resolved, repairs to the west wall were still necessary. Indeed, the first defender herself was pressing for them to be completed. It is regrettable that they were delayed and the scaffolding costs continued to accrue while problems with contractors, tenders and consents were resolved, but there is no suggestion that that was the fault of anybody involved in organising the works.

[170] The scaffolding was still acting as a 'shore'. If it was removed, then there was the risk of further deterioration or even collapse. Although no actual work was done during this period, my view is that the scaffolding still formed part of the 'necessary repairs' and as such, the first defender is obligated to pay her share of them.

[171] The stage from May/June 2009 to the completion of the works in 2010 can by analysed in exactly the same way. The repairs which were executed were necessary repairs. They did not amount to improvements. The wall was defective and at risk of further deterioration at best and collapse at worst. The only solution was to repair it.

[172] Once the work started, a need for additional work was identified.

[173] Mr Cochrane's evidence (which I accepted in its entirety apart from one or two minor details which he was unsure of) was that all that was done was appropriate and necessary. I accept too that the scaffolding had to stay up until the repairs were complete.

[174] Accordingly, I consider that quite apart from any rights and obligations arising under the Deed, one or more co-proprietors were entitled to instruct all of the repairs which were in fact executed on the grounds that these were necessary repairs and the first defender is obliged to meet a share of the cost thereof.

Consent

[175] In the alternative, there is the issue of consent.

[176] Dealing with the first stage, what had been done and what it had cost was discussed at the meeting on 23 August 2007, attended by the first defender. She made no objection. Indeed, the evidence was that the tenor of the meeting was that all present, including the first defender, agreed with what had been done.

[177] The question as to whether a person consents to something depends, of course, on the circumstances. Part of the circumstances here were that the first defender, as an owner, had obligations in terms of the Deed and statutory obligations. So it may be that she had little choice in the matter, but in my view that is nothing to the point. Works had been effected (scaffolding erected) which enabled the first defender to meet her legal obligations. She was present at a meeting when what had been done was met with general approval. She did not object. In these circumstances, she is to be taken to have consented.

[178] In my opinion, given that the works in question (the erection of the scaffolding) had already been effected, the Deed is of no relevance. Clause SIXTH is concerned with works that are in prospect, not those that have been executed: "to order to be executed any repairs, renewals, painting or redecoration of the common subjects..." (emphasis added).

[179] The situation is capable of being analysed according to (i) principles of contract or (ii) equitable principles of homologation or personal bar. In my opinion, it does not matter - the result is the same. The first defender having consented to the erection of the scaffolding - albeit after the event - cannot thereafter seek to disassociate herself from that decision and refuse to pay her share of the costs.

[180] Turning to the second stage, the defender was aware that the scaffolding had been put up and why. She was aware of her obligations (both titular and statutory) to maintain the west wall as part of the common parts. While an indicative timetable for obtaining the necessary consents completion of the work was discussed at the meeting on 23 August, the first defender was warned that things might take longer. It was - or should have been - obvious to her that any delays would mean increased scaffolding costs. Thereafter, she knew that there were delays in getting the contractors and consents in place to allow the works to proceed. She knew that the whole while, scaffolding costs were accruing.

[181] I can see that there might be a question as to how long the consent given by the first defender at the meeting on 23 August 2009 might be said to remain in force. In my view, it must be treated as having been open ended - at least until the first defender intimated otherwise. It may be that she gave that consent in the hope or belief that the work would be completed sooner rather than later. But that is not the point.

[182] At no stage did the first defender make her consent to the presence of the scaffolding conditional on works being completed within a particular time or at a particular cost - or, for that matter, subject to any conditions.

[183] In my view, against that background, the first defender must be held to have been giving her ongoing consent to the scaffolding remaining in place.

[184] I now turn to the third stage from May 2009 onwards.

[185] The history of and reasons for the delays in obtaining a suitable quote and consents are set out in the findings in fact. It is evident that the first defender knew what was happening and was anxious that Mr Hinde be instructed and the work proceed: Number 5/24 of Process.

[186] By May 2009, the consents were in place and Mr Cochrane had recommended that Mr Hinde be instructed. The remaining issue was how the repairs were to be funded. The majority of the co-proprietors had sought legal advice as had the first defender. A letter was sent to the first defender and her solicitor setting out details of the costs and seeking payment of outstanding scaffolding costs: Numbers 5.5 and 5.6 of Process.

[187] The reply from Hardy Macphail intimated that that the first (and second) defenders were "...anxious for the repairs to be carried out and for the scaffolding to be removed". That letter contains a specific undertaking that the first defender would pay the sum of £2,870.33 on completion of the work or, if stage payments have been agreed with the contractor, payment in stages on the receipt of appropriate certificates from Mr Cochrane. The letter concludes: "We trust this is sufficient to enable the works instructed to commence as of 2^nd June 2009."

[188] In my view, that letter amounts to (i) the first defender consenting to the other proprietors instructing the repair works and (ii) giving an undertaking to pay the sums mentioned therein on the works being completed. Again, whether analysed in terms of personal bar, waiver or contract, that letter amounted to the first defender unconditionally obliging herself to pay (at least) the sums mentioned therein on completion of the works. The effect of it was also to elide the need for a meeting in terms of Clause SIXTH, since consent to the works being instructed had been achieved without resort to the procedure laid down therein.

[189] In the event, as these types of projects are wont to do, the works turned out to take longer and be more expensive than was originally anticipated. Given Mr Cochrane's description of the complexities, that is not surprising.

[190] A question may arise as to whether the consent given on 29 May 2009 can be treated as binding on the first defender in respect of the increased costs. In my view, it can. She knew that the figure quoted as her share was based on estimated costs: Number 5.6 of Process. She knew that further complexities could emerge as work proceeded having been warned of such by Mr Cochrane. She knew that if there were any complexities, the repair costs could go up and if there were any delays, the scaffolding costs would continue to accrue.

[191] The letter from Hardy Macphail is unqualified. There was never any attempt by the first defender to revoke the authority she had given for the works to proceed. Accordingly, it appears to me that it being proved that (i) the works were more expensive and (ii) the increased costs were reasonable (about which there was no real dispute), first defender's consent to the works proceeding and to meet the full costs continued in force until the work was completed.

[192] Even if I am wrong in so interpreting 29 May letter, it appears to me that as the first defender was provided with information at each stage as to what additional works were required and the expected costs thereof, she is deemed to have consented to renewing the authority given in the 29 May letter by her failure to revoke it.

[193] In my view, on either or both of these bases, the first defender must be held to have consented to the whole works and costs and to be liable for a proportionate share thereof.

Tenements (Scotland) Act 2004 ("the 2004 Act")

[194] Before dealing with the substance of the arguments in relation to this aspect of the case, I must deal with a preliminary issue as to whether the pursuer is entitled to pray in aid the 2004 Act at all.

[195] It was submitted on behalf of the defenders that no case based on the 2004 Act having been foreshadowed in the pleadings, such a case could not now be made. In my view, there are a number of reasons why that is not correct.

[196] First, it was accepted on behalf of the defenders that the law of the tenement is applicable to this case. The 2004 Act forms part of that law and has done for nearly a decade. Second, a (if not the) principal purpose of written pleadings it to provide fair notice. It is apparent that possible application of the 2004 Act to this case was specifically canvassed at the debate. Accordingly, it appears to me that the reliance now being placed on it by the pursuer cannot come to any surprise to the defenders. Third, there may be force in the argument that the different legal bases of a case should be articulated separately - but the real force of that proposition is to prevent a defender being faced with evidence about matters about which he has had no notice. In the present case, it was not suggested to me that in order to rely on the 2004 Act the pursuer had had to seek to prove additional facts of which no notice has been given. No prejudice was identified. Finally, this is of course not a claim under the 2004 Act or in respects of a breach thereof, but a claim made in accordance with a mechanism provided within that legislation.

[197] For each and all of these reasons, I have concluded that the pursuer is entitled to present arguments related to the 2004 Act and the court is entitled to consider them.

[198] The 2004 Act introduces the Tenement Management Scheme ("TMS"). As already noted, it was accepted on behalf of the defender that the law of the tenement (of which the 2004 Act forms part) applies to Carbeth. The TMS is set out in Schedule 1 to the 2004 Act. It consists of eight rules.

[199] So far as stage one is concerned, the Deed is silent on the question of emergencies. This means that the TMS regulates the position: Sections 4(4) and 4(5). Rule 7 in the TMS provides that emergency work includes work which is required to prevent damage or in the interests of health or safety: Rule 7.3. In my view, the erection of the scaffolding satisfies both those criteria. Any owner may instruct emergency work: Rule 7.1. Liability for the costs of such work is treated as a "scheme cost": Rules 7.2 and 4.1(a).

[200] As to the second stage between August 2007 and May 2009, Mr Quin submitted that Rule 2 of the TMS applied. I do not agree. Assuming that "maintenance" (Rule 3 of TMS) and "repairs" (Clause SIXTH of the Deed) can be treated as synonymous, it appears to me that the latter regulates the position: Rule 4(5). Likewise, since there is a procedure in the Deed setting out a procedure for making decisions, Rule 2 does not apply: Rule 4(4).

[201] So, on the basis that what was required here was a scheme decision, it is necessary to consider whether the procedure adopted in deciding whether the scaffolding should remain in place complied with Clause SIXTH. In my view, it is clear that it did not. The meeting was not convened in accordance with Clause SIXTH and there was no vote.

[202] But matters do not end there. There was no objection to the issue of the repair works being discussed and it was implicit within what was discussed that all the proprietors who were present (including the first defender) knew that scaffolding had been erected and would need to remain in place. Those present "agreed" and the meeting finished on an amicable basis. There was no evidence that the first (or second) defenders had disputed the (ongoing) need for the scaffolding. In short, there was consensus. The wall was to remain shored up until the repairs could be organised. That was a scheme decision, albeit reached by an irregular procedure.

[203] The irregularity in reaching what amounted to a scheme decision does not affect its validity: TMS, Rule 6.1. (Rule 6.2 does not arise.)

[204] There being valid scheme decision to incur the scaffolding costs (which are deemed to be scheme costs: Rule 4.1), the first defender's liability to pay a share of them is established.

[205] In relation to the period from May 2009 onwards, the same analysis applies. The Deed, Clause SIXTH must be treated as primarily regulating the position since it deals with repairs. Since it sets out a procedure for making decisions, Rule 2 does not apply: Section 4(4).

[206] The procedure adopted in making a scheme decision on whether the repairs should be instructed was not made in accordance with Clause SIXTH as there was no meeting.

[207] But as already noted, any procedural irregularity in the making of a scheme decision does not affect its validity. I am satisfied that the projected scheme costs were circulated to the first defender; that a vote was taken by email thereon; and that a majority approved the scheme. (The first defender may not have "voted in favour", but she did consent).

[208] In these circumstances, I hold am satisfied that the procedural irregularity in reaching the scheme decision to instruct Mr Hinde to proceed does not affect its validity.

[209] Thereafter, at each stage when the increased costs were identified, the same process was adopted. The details were circulated, co-proprietors were invited to vote and a majority was achieved. Thus, even assuming that these additional costs should have been approved through the Clause SIXTH procedure, the decisions taken in respect of them are not invalidated by a failure to follow that procedure.

[210] On that basis, the first defender is obliged to pay her share, as otherwise laid down in Clause SIXTH, of the full repair and associated professional and scaffolding costs incurred.

Scaffolding & repair costs - second defender

[211] I have held that the first defender's liability for a share of the full repair and associated professional and scaffolding costs is established under common law and/or by her consent and/or under Clause SIXTH as supplemented by Rule 6.

[212] I see no distinction between the position of the first and second defenders in relation to this aspect of the case. He attended the meeting of 23 August 2007; was kept abreast of developments; the letter of 29 May 2009 was written with his authority; he had the opportunity to vote throughout. In my view, he too is liable to pay his share, as otherwise laid down in Clause SIXTH, of the full repair and associated professional and scaffolding costs incurred.

Contributions to common fund

[213] The position surrounding the so-called common fund is more obscure. There is no doubt that there are funds in a bank account to which some or all of the proprietors have contributed. The evidence suggested that it had been in existence for some time. The first defender told the pursuer about it and requested that she (the pursuer) contribute to it and was active in ensuring that arrears and ongoing contributions to it were obtained from Mr Garvie. Both defenders also appear to have made contributions to it in the past.

[214] The issue is the status of the funds therein. In my view, in order to be recoverable in this action it must be shown that the fund was one which the defenders are obliged to (continue to) contribute to by reason of their capacity as proprietors of flats in Carbeth. In other words, the obligation must be real (i.e. relating to title) rather than personal. As I understood it, Mr Quin did not seek to argue that there fund had been set up in compliance with the Deed. In my view, that is correct. There was no evidence as to the original purpose of and procedure followed in the setting of the 'common fund'. There was no evidence that a managing agent was ever appointed: Clause SIXTH(d).

[215] Moreover, such evidence as there was suggested that the purpose of the fund was to meet ongoing or routine maintenance costs. The pursuer said: "We had to contribute £50.00 per month to the common fund and major repairs went into a separate account."

[216] Mr Garvie said that he was told that a residents' association had been set up many years previously and that he had to pay: "... £100.00 (sic) per month into a communal fund for cutting grass, repairing roofs, repairing the road - smaller repairs."

[217] By contrast, the 'sinking fund' referred to in the Deed is concerned with repairs or renewals not falling under routine maintenance: Clause SIXTH (e).

[218] Accordingly, it appears to me that as a matter of fact, the fund was not one which had its provenance in the title obligations - though my impression is that the first defender thought that it did or at least conducted herself in that way.

[219] Mr Quin contended that there had been a 'scheme decision' to impose a £50.00 levy on each property, by which I took him to mean that reliance was being placed on the 2004 Act.

[220] Assuming I am right in characterising the 'common fund' as one not being created under the Deed (because the Deed does not create a tenement burden allowing for the creation of a fund dedicated to ongoing repairs) it follows that the Rule 3 of TMS has effect: Section 4(5).

[221] The question then is whether the requirement to contribute £50.00 per month was a 'scheme decision'?

[222] That requirement was is not one of the matters covered in Rule 3.1. However, I am prepared to infer that there was the was at some stage a 'scheme decision' to carry out maintenance, in the manner of routine maintenance and small repairs: Rule 3.1(a). Otherwise, what would be the point of obtaining funds from proprietors for such a purpose?

[223] Where there a has been a 'scheme decision', the owners may make what might be described as 'ancillary scheme decision' for each owner to be required to deposit a sum of money, not exceeding SSthat owner's apportioned share of a reasonable estimate of the cost of the maintenance: Rule 3.2(c) (ii). One difficulty here is that there was no evidence as to how the sum of £50.00 per month was arrived at or how, if at all, it related to the estimated cost of the maintenance.

[224] In my view, the difficulties do not end there. Decisions to require payment of a deposit are subject to conditions.

[225] First, a written notice is required where a deposit of S £100 or less is required to be made, if the aggregate of that sum taken together with any other sum or sums required (otherwise than by a previous notice under this rule) in the preceding 12 months exceeds £200: Rule 3.3(b).

[226] Second, that written notice must contain certain information: Rule 3.4(b).

[227] There was no evidence to support the conclusion that any such steps had been taken in relation to sums which any of the owners who had been asked to pay £50.00 per month into the common fund.

[228] Accordingly, I am unable to hold that the decision taken (as it undoubtedly was at some stage) that proprietors should make a regular contribution to a fund to cover routine maintenance and small repairs was a 'scheme decision'. That being so, any rights and obligations which may arise as a result of defenders' ceasing to pay such contributions is not one which can be determined in this action.

Title to sue

Titles to Land (Scotland) Act, 2003 ("the 2003 Act")

[229] I now turn to consider the question of title to sue. Mr Quin sought to place reliance on Section 52 of the 2003 Act. However, my understanding is that that section is a codification of the ius quaesitum tertio. So it does not extend the rights of enforcement.

[230] But matters do not end there. Clause SIXTH of the Deed creates a real burden: Section 1. A real burden is enforceable by a person who has both title and interest: Section 8.

[231] The pursuer has title as a proprietor of the benefited property: Section 8(2).

[232] The burden is an affirmative burden which requires the first defender to contribute the cost of repairs: Clause SIXTH.

[233] Pursuer has interest as she has grounds to seek the payment of that cost, as a contribution towards the full costs paid by herself and the other proprietors who have paid and who have authorised her to do so on their behalf: Section 8(3)(b). The burden is enforceable against the first defender: Section 9(1).

[234] In my understanding, the 2003 Act was part of an overall package of reforms to the law of Scotland aimed at simplifying the way in which common repairs could be instructed, executed and paid for. Applying a purposive approach its terms, it appears to me that it is aimed at helping to resolve precisely the kind of problems that historically bedevilled tenement repairs schemes under the common law - including avoiding the need for all proprietors who have contributed to the cost of necessary repairs from suing independently to recover a proportionate share of the costs from any proprietors who have not contributed.

[235] On that basis, I am satisfied that the pursuer has both title and interest to pursue this action.

2004 Act

[236] In the alternative, Mr Quin placed reliance on Rule 8 of the TMS.

[237] In my view, Rule 8 means what it says. Again, a purposive approach seems to be appropriate. I am satisfied that on that ground also, the pursuer has title and interest to pursue this action against both defenders.

Disposal

[238] In case number A125/10, I shall

a. repel the defender's second plea in law;

b. repel the defender's third plea in law (insofar as it relates to crave 2);

c. repel the pursuer's second and third pleas in law;

d. sustain the defender's fourth plea in law

e. absolve the defender from the second crave of the writ;

f. sustain the pursuer's first plea in law; and

g. grant decree against the defender for payment to the pursuer of the sum of SIX THOUSAND FOUR HUNDRED AND EIGHTY THREE POUNDS AND NINETY SEVEN PENCE (£6483.97) Sterling with interest thereon at the rate of 8% per annum from the date of citation until payment.

[239] In case number A125/10, I shall:

a. repel the defender's first plea in law;

b. repel the defender's second plea in law (insofar as it relates to crave 2);

c. repel the pursuer's second and third pleas in law;

d. sustain the defender's third plea in law

e. absolve the defender from the second crave of the writ;

f. sustain the pursuer's first plea in law; and

g. grant decree against the defender for payment to the pursuer of the sum of SIX THOUSAND EIGHT HUNDRED AND FIFTY EIGHT POUNDS AND FORTY SIX PENCE (£6858.46) Sterling with interest thereon at the rate of 8% per annum from the date of citation until payment.

[240] I reserve all question of expenses. If parties are unable to resolve these privately, they should contact the Sheriff Clerk and ask for a hearing to be fixed.

(sgd.) "K J McGowan"

Sheriff