JOHN HUNTER v. MRS HELEN TINDALE [2010] ScotSC 171 (19 October 2010)

JUDGMENT of SHERIFF N M P MORRISON, QC in causa JOHN HUNTER PURSUER against MRS HELEN TINDALE DEFENDER __________________ EDINBURGH , 18 October 2010 The sheriff, having resumed consideration of the cause, assoilzies the defender from the claim of the pursuer in the small claim summons; finds the defender entitled to expenses of £75. NOTE [1] The issue in this case is whether the defender, as owner of the pend at 123 Constitution Street , Edinburgh , is liable to pay £677 as a proportion of the cost of repairs to part of the tenement at 121 to 125 Constitution Street . [2] Parties were agreed that the question was a matter of interpretation of the Tenements ( Scotland ) Act 2004 and that evidence was unnecessary. The pursuer appeared for himself and the defender was represented by a friend, Mr Russell. The pursuer was acting as an assignee. No issue about the assignation arose at this hearing, having been resolved at an earlier hearing. [3] The agreed facts were these. The pend is number 123 Constitution Street . The property at number 125 extends over the pend from the first floor level and abuts number 121. There is an archway over the pend which forms part of the facade of numbers 121 to 125. The facade extends to and adjoins the roof. The pend gives access to a courtyard at the rear, including a workshop at the rear of number 125 which forms part of the basement of 125 Constitution Street. There is a right of access over the pend to and from that workshop. At one time the whole of the tenement at 121 to 125 was in one ownership. The defender remains the owner of the pend. Numbers 121 and 125 form one tenement building. A former access to number 121 from the pend had been blocked off. There is a door from number 125 into the pend. There are properties in 121 and 125 divided horizontally. There are 10 flats in the tenement. [4] The only disputed fact was whether there was a right of access to the door at number 125 in the pend. [5] Part of the pediment of the archway over the pend, and where it joins the wall of number 121, was in need of repair. The work was done. The only person who had refused to pay a share of the cost of repair was the defender. It was agreed that, if the pursuer's interpretation of the law was correct, the defender owed the sum sued for to the pursuer. If the defender's interpretation was correct, the money was not due. [6] The pursuer's submission was that the pend formed part of the tenement and therefore the defender was one of those liable for repair to a part of the tenement. Section 2(5) of the 2004 Act provides that a close extends to and includes the roof over and the solum under the close. Section 8(1) and (3) provides that the owner of any part of a tenement building which provides support or shelter to any other part must maintain the supporting or sheltering part; and that duty may be enforced by any owner directly affected by the breach. Section 29(1) defines "close" as - "a connected passage, stairs and landings within a tenement building which together constitute a common access to two or more of the flats". The pend provided access to 125 and the workshop and the close had to be maintained for the structure of the building. The solum of the pend was an intrical part of the tenement. [7] For the defender, it was argued that the pend was distinct from a close and the definition in section 29(1) excluded it because there was no common access to two or more flats. The pend carried no rateable value and carried no burden. [8] It seems to me that the pend, which is undoubtedly a connecting passage, would fall within the definition of a close in section 29(1) if (1) it is within a tenement building (2) includes a stair and landing, and (3) constitutes a common access to two or more flats in that building. [9] A "flat" is defined in section 29(1) as including any premises whether or not intended to be used for residential purposes or whether or not on the one floor. It could, therefore, include the workshop at the rear of number 125. [10] Section 26 gives the meaning of "tenement" as a building (or part) which comprises two or more related flats in separate ownership and divided horizontally; and - "except where the context otherwise requires, includes the solum and any other land pertaining to that building or, as the case may be, part of the building". The expression "tenement building" is to be construed accordingly. In determining whether flats or related regard is to be had, among other things, to the title of the tenement and any tenement burdens treating the building as if it were a tenement. [11] In my opinion, the pend is not part of the tenement building. It is not part of the solum and land pertaining to the tenement building which surrounds it. [12] Even if it were, the next question would be whether the pend constituted a common access to two or more flats. A right of access to the workshop would constitute one access. There is a dispute as to whether there is an access to number 125 through the door in the pend. I indicated at the proof that if I considered it necessary for it to be established whether there was an access through that door that there would have to be evidence led in relation to that issue. I said that I would inform the parties if I considered it necessary for that to be established before I could answer the issue in dispute. [13] There is, in my opinion, a more fundamental flaw in the argument of the pursuer that makes it unnecessary to establish whether that access exists. The definition in section 29(1) of the word "close" state that it means "a connected passage, stairs and landings within a tenement building which together constitute a common access" (my emphasis). While the pend could be described as a connected passage to get to a flat (the workshop), there are no stairs or landings within it. It seems clear to me that the definition means that there must be a passage and stairs and landings because a close is only within the definition if all three exist to constitute an access. That is not the case here. It seems clear to me that the intention of the legislation is that the entrance to and stairwell of a flatted tenement is a common access for the purposes of the Act; and a close is, therefore, defined in that way. It does not include this pend which is a passage or road from the front of the building to give access to the courtyard and premises at the rear. [14] Unfortunately it does not appear that the 2004 Act enables the pursuer to claim a contribution towards the cost of repair from the defender. The action by the pursuer therefore fails. [15] The defender sought expenses of £150, being the maximum, as being a reasonable sum because the defender was self employed and had incurred loss of earnings. No specification or vouching was given of the defender's work, daily rate or loss. Work was clearly done in preparing productions which included dispositions in relation to the tenement. In the circumstances I award the defender £75 in the sum of expenses. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII