Tenements are not the exclusive preserve of urban Scotland, but for those more familiar with English and US housing, they are seen as the exception rather than the European norm. And a European norm indeed they are, with almost all urban housing prior to the First World War being of a similar design, from Norway to Spain and from Italy to France.
The Romans were the first to embrace tenements; the name derived from Latin tenere, so it literally means a holding. Likewise, the term ‘land’ in mediaeval urban Scotland came to mean a building, as in Edinburgh’s Gladstone’s Land.
Nowadays, these houses are coming back into fashion with a vengeance, and most urban developments follow a low-rise tenement format. Even fairly modest, modern iterations are generally quite sought-after, as they are in desirable locations close to the urban centre, services, and transport. The title deed for each of these new houses contains a burden: a binding obligation to share with their fellow owners the maintenance and repairs of the parts of the building and grounds held in common.
Maintenance agreements don’t exist for older tenements
However, the traditional pre-war stone-built tenements missed out on this eminently sensible provision. Whilst these well-built substantial houses have proved themselves in most cases to be so far almost indestructible and impervious to wear and tear, after almost 200 years they are now beginning to show their age. Many of the more modest 50m² to 70m² blocks are now in very urgent need of a bit of TLC, and even sought-after leafy areas in Edinburgh like Marchmont are beginning to show unmistakable signs of stress.
And in these larger houses, mainly 100m² to170m², the issue is not always about money. Owners are quite prepared to maintain the properties, but when it comes to making a decision between a repair which will last 100 years and a repair which will last 10 years, it is difficult to sell the more expensive option.
This was the situation in the largely Georgian New Town in the 1970s, and due largely to the persistence of the Edinburgh New Town Conservation Committee, there was a highly successful campaign of renovation and refurbishment. Properties now changing hands for little short of £1m were then on the verge of becoming slums.
Scotland’s urban Victorian housing stock is now at the stage that the Georgian housing stock then found itself. Action is imperative if the townscape of our Scottish cities is not to change irreparably. The problem is that the maintenance agreements integral to modern tenements are absent in the pre-war housing stock, which means that setting up long-term binding maintenance agreements among the owners is extremely difficult to achieve without placing burdens in the title deeds of each individual house, which would be prohibitively expensive.
The legal position on maintenance is problematic
In most European countries, the law obliges the owners to meet at least annually and appoint office bearers, whose job it is to oversee the maintenance and repair of the common elements. Whilst this may seem superficially onerous, the effect is to create communities of place, which are then eligible to apply for government funding to install, for example, green heating systems or lifts to improve accessibility.
Unfortunately this legal infrastructure was never seen as a priority by the UK government as land tenure in England precluded ownership of individual houses in tenements, as all the common elements have to be owned by the overall leaseholder, so it was an issue which only affected Scottish properties.
The Scottish Government is currently examining the options available to correct this vital omission, but as land ownership is a reserved matter it could be decades before Westminster agree to change the law surrounding land ownership. In an ideal world, Holyrood would simply pass legislation similar to that applicable in other European countries, obliging the owners to cooperate to maintain the building, and giving the building legal personality. However, that is not an option available to the Scottish Government under devolution.
A possible solution requires some creativity
There are two other forms of legislation already on the statute book, which could be creatively adapted to produce a solution without Westminster’s involvement. One is the national park legislation, and the other is the crofting legislation. Both impose limitations upon property owners within the designated areas, without inserting burdens in each individual title deed. Both sit above the title deed and survive disposition from one owner to another. However, both statutes apply only to specifically delineated areas, and Holyrood would have to legislate to extend one or other of these to cover the whole of Scotland. (It would naturally also be prudent to change the name of the newly-adapted statute to avoid being ridiculed in the tabloid press!)
Tenements cannot wait indefinitely for Westminster to legislate; they have failed to do so over 200 years, and there is no indication they have any will to do so now.
So perhaps serious attention should be given to extending the geographical scope of either one of these existing statutes.
Otherwise the only other alternative is to wait for the full powers of independence.
Perhaps that would be the simplest solution?