In the recent case of Hunter v Tindale, Edinburgh Sheriff Court looked at the interpretation of "close" under Section 29 (1) of the Tenements (Scotland) Act 2004 ("the Act"), which is defined as:
"…a connected passage, stairs and landings within a tenement building which together constitute a common access to two or more of the flats".
Mr Hunter, the owner of part of a tenement building, raised an action against a Mrs Tindale, the owner of a pend (passageway) leading from the front of the tenement to a courtyard at the rear of the building. As well as giving access to the courtyard, the pend also gave access to a workshop situated to the rear and in the basement of the tenement.
Work had been carried out to repair the pend and the only person who refused to pay was Mrs Tindale. Mr Hunter argued that the passageway provided access to the tenement and the workshop at the rear and that the pend was "an integral part of the tenement". Accordingly, the pend fell within the definition of a "close" under the Act and Mrs Tindale had a duty under section 8 of the Act to maintain the close for the building's structure.
Mrs Tindale, on the other hand, argued that the pend was distinct from a close because there was no common access to two or more flats. Accordingly, she would not be liable to pay a share of the costs of repair.
In reaching its decision, the Court decided that three elements must be present before a passageway can be defined as a "close" in terms of section 29 (1) of the Act:
- i. Be within a tenement building;
- ii. Include a stair or landing; and
- iii. Constitute common access to two or more flats.
Applying these tests to the pend, the Court ruled that it was not a close, as it did not include a stair or landing.
Owners of tenement property which requires/has required repairs to be made to the common property should take note of the Court's interpretation of "close" for two reasons. First, if the owner is seeking to share the cost of the repairs, they must take care to ensure that they only claim from those owners who are liable. Second, and on the other side of the coin, if a demand for payment is received, the neighbouring owner should consider whether they are liable for the costs.