Professor Ken Gibb: Unlocking the tenement

Professor Ken Gibb

This month saw a milestone on the path to modernising the Scottish tenement. The Scottish Law Commission published a report supporting proposals that first emerged from the tenement maintenance working group of the Holyrood cross party group on housing. Tenement law change moves slowly, reflected in the fact that the working group’s main report and Government response preceded the Covid-19 pandemic. And this new report only deals with the first of three interlocking components identified in the earlier research. But it is important progress, nonetheless.

The Parliamentary working group’s recommendations involve three main elements:

• Establishing a compulsory owners’ association for each tenement
• Establishing a reserve or sinking fund for repairs contributed by tenement property owners within the owners’ association
• Instituting mandatory regular property inspections on a five yearly cycle

Writing on the Scottish Law Commission’s report in Scottish Housing News, Mike Heffron, the director of Under One Roof, added a fourth dimension, mandatory block insurance, to this list of tenement reform requirements.

The focus from the Scottish Law Commission is about creating the legal framework to establish the compulsory owners’ association and the requirements to make a functioning body that can enable the other elements required to in time standardise common repairs and asset investment in our older tenements across urban Scotland.

Why does this matter?

The most obvious reason is that something coherent needs to be done to create a legal basis to ensure that owners take responsibility for common repairs and develop long term strategies for their own properties. We are all aware of the many stories of co-ordination failure that abound among owner occupiers, let alone mixed tenure closes, alongside incomplete or absent factoring. Sorting this out is a necessary condition for the long-term future of our tenements. 

Moreover, second, doing this and making it work is also a prerequisite for decarbonisation retrofit of our mixed tenure tenements in cities like Glasgow and Edinburgh. It won’t guarantee it, but won’t, in my opinion, happen to the extent required without it. 

Third, our older tenements are in increasing disrepair, sometimes dangerous, and in need of mechanisms to rectify disrepair and sustain the sector into the future. Douglas Robertson wrote an excellent post for us in June highlighting the significance of these issues for Glasgow in particular. 

As Heffron says, this is a starting gun to reform – and not in any way the end of the story. One slight concern I have is in relation to the delivery of the proposals. The report indicates that there would be a power to enforce the new key duties that would be managed through the First-Tier Tribunal.

The Tribunal is the workhorse of Scottish housing dispute resolution, primarily in the private rented sector. As it stands, the Tribunal is stretched to undertake its existing functions in good time. But it is not clear that the capacity exists to take on this additional role, or indeed how big a task this will be in practice. This implementation dimension must be addressed without being at the expense of the other important things that the Tribunal does.

This tenement reform work is essential for our housing and our cities – it must have the capacity and resource to implement what is required. This is a case where policy requires new law to make a significant difference to a major part of our existing housing stock. This announcement is the beginning of a process but needs the space to fully develop and make the transformative changes required to help improve housing quality and secure a future for our older tenements.

• This article was originally published on the UK Collaborative Centre for Housing Evidence website.