A Deed of Conditions is a legal document forming part of the title deeds to a building or group of buildings, and lays down the detailed rights, duties and obligations of every owner within the building in relation to the common areas. The underlying principle is that all residents are entitled to use and enjoy their property provided that it does not adversely affect the similar rights of their neighbours.
As Factor, the Association's duties and responsibilities are defined in full within the Deed of Conditions for your property.
Your solicitor should have discussed your title deeds with you when you bought your property. We do not hold copies of your deeds. However, you can obtain a copy from the Registers of Scotland (who charge for this service) or contact a solicitor for advice.
What is in the Deed of Conditions?
Generally, some of the key parts of the Deed of Conditions are:
The areas of the property over which the specific Deed applies:
Description of the buildings themselves and all associated land. A map will be included to show the boundaries and ownership of relevant areas.
The common parts:
Areas of the building and land held in common ownership. This assists in identifying responsibilities for repairs and other service costs. Generally, these parts are divided into overall common areas, property common to blocks and property common to closes.
The common charges to be met by owners:
Including costs associated with routine repairs and maintenance, landscape maintenance, communal cleaning, communal lighting, cyclical maintenance, management fees, common insurance premiums and floats.
The powers, duties and obligations of the Factor :
Including arrangements for appointment, powers to instruct common repairs, organise other services and administer common buildings insurance policy.
Individual owner’s maintenance responsibilities:
Confirms the responsibility of owners to keep their own property in reasonable condition.
Describes how owners can call a formal meeting, what decisions can be made and the voting procedures.
Apportionment of Costs:
Confirmation of how common costs are apportioned amongst all the owners covered by the specific Deed of Conditions.
Generally, this part of the Deed is also covered by Schedules 1, 2 and 3 covering costs to overall common areas, property common to blocks and property common to closes.
As an example an owner of a townhouse will have to pay an apportionment of the costs to overall common areas but will not have to pay for property common to closes as they have no interest or use in this common part of the development.
Again, if you are in doubt about your share of costs then you must consult your own specific Deed of Conditions.
Additional Burdens, Conditions and Prohibitions:
Each Deed contains a lengthy list of burdens, conditions and prohibitions placed on individual owners and others living in the property.
This is a complex area but a flavour of the items covered include:
installation of individual tv aerials and satellite dishes.
external painter work responsibilities
use of the property as a private dwelling house
running a business from your home
prohibitions on nuisance and disturbance
use of bin stores
keeping of pets
Enforcement of the Deed of Conditions
In the past, Scottish Enterprise (represented locally by the Crown Street Regeneration Project) used to be the “Feu Superior” of the development you live in and was entitled to take action if an owner did not meet any of the terms of the Deed of Conditions.
In this previous scenario, the Association, as Factor, could report breaches of the Deed by one owner deemed to be causing detriment to others to the Feu Superior (often on behalf of individual owners). In this situation, the Factor could ask the Feu Superior to consider taking legal action against the other owner causing the problem.
However, the law across Scotland changed a number of years ago and Feu Superior powers have been abolished.
Therefore, Scottish Enterprise no longer has the rights of the Feu Superior and, consequently, the Association is unable to call on their assistance in the event of an illegal breach of the Deed of Conditions by one owner against another.
Therefore, now, the power of enforcement lies solely with individual owners with each owner legally entitled to require his or her neighbours to comply with the terms of the Deed of Conditions.
For example, if one owner’s behaviour causes nuisance and disturbance to his neighbour, this neighbour is entitled to take legal action against the owner as the Deed of Conditions prohibits behaviour deemed to be a nuisance or disturbance.
The right to take action applies to every owner in relation to all conditions in the Deed and, for the avoidance of doubt, we would re-iterate that the Association as Factor has no such powers of enforcement in relation to any breaches of the Deed by one owner against another.