Tenement law: compulsory owners’ associations

Commissioner

Professor Frankie McCarthy

Team Members

Stephen Crilly, Project Manager
Catherine Marney, Legal Assistant

This project has now been completed. A Report on Tenement law: compulsory owners’ associations, together with a draft Tenements (Amendment) (Scotland) Bill, was published on 11 December 2025.

An outline of the contents of the Report can be found in the Executive Summary and News Release. A Business and Regulatory Impact Assessment is also available.

Background

This project considered changes to the law in order to establish compulsory owners’ associations for tenement properties.  The legal term "tenement" covers all buildings containing flats, for example, a converted villa, "four-in-a-block" or a modern, high rise development. Tenements may include a mixture of residential and commercial units.

The condition of Scotland’s tenements has been in decline for many years. In March 2018, a Scottish Parliament Working Group was convened to explore ways in which legal, technical and cultural barriers to tenement maintenance could be overcome.

In June 2019, the Group published its Final Recommendations Report. The Report contained three interconnected recommendations:

• Recommendation 1: Tenement buildings should be subject to a building condition inspection every five years.
• Recommendation 2: An owners’ association should be established for every tenement building.
• Recommendation 3: A building reserve fund should be established for every tenement building.

On 10 January 2022, the Scottish Law Commission received a reference under the Law Commissions Act 1965 from the (then) Cabinet Secretary for Social Justice, Housing and Local Government.  The reference asked us:

“To review the law of the tenement in Scotland, including the Tenements (Scotland) Act 2004, and make recommendations for reform to implement recommendation 2 (establishing compulsory owners’ associations) …”

As stated, the reference follows the Final Recommendations Report of the Working Group on Maintenance of Tenement Scheme Property.  A copy of the Report can also be downloaded here.

The essence of recommendation 2 is that the owner of every tenement flat in Scotland should be required to enter into an association with the owners of the other flats in the same building. The key purpose of the association would be to manage maintenance and repair of the building fabric. The association would have legal personality separate from the flat owners, enabling it to contract for maintenance work and hold funds in its own name.

Our Report and draft Bill set out an appropriate legislative basis for implementing this recommendation should Government be minded to progress it.

Further resources

Discussion Paper

Following extensive engagement with stakeholders, comparative law discussions (see below), and our own detailed research, we published a Discussion Paper on 25 April 2024. An executive summary and an open letter to consultees were published alongside the Paper.

In May 2024 we held two public webinars to introduce the Discussion Paper to potential consultees. A recording of the presentation given by Professor McCarthy at the webinar is available on our YouTube channel. You can also view the slides used in the webinars here.

Comparative law webinars

In the autumn of 2022, we ran three public webinars as part of an international comparative law series. In the first of those, Dr Lu Xu spoke about the lessons that can be learned from the introduction of commonhold tenure in England.  Dr Xu's slides are available here, and his presentation can be viewed here.

In the second webinar, Professor Cathy Sherry discussed the lessons to be learned from the Australian law of strata title and considered when the powers of owners' associations go too far.  Professor Sherry's talk is available to view on our YouTube channel at this link.

The third and final webinar looked at how the law in a number of European countries deals with enforcing payments that are due for tenement maintenance and improvements. Professors Sergio Nasarre Aznar, Magda Habdas, Sandra Passinhas and Vincent Sagaert tackled the law of Spain, Poland, Portugal and Belgium respectively.  The recording of the webinar can be found here.  Slides from three of the presenters can also be found here: Professor Passinhas' slides, Professor Habdas' slides, and Professor Sagaert's slides.

Keeling Schedule

Our draft Bill suggests extensive changes to the Tenements (Scotland) Act 2004. Appendix C to the Report gives an indication of what the 2004 Act would look like if those changes were to be enacted. This type of document is known as a Keeling Schedule. A further version of the Keeling Schedule, which highlights the changes which would be made to the 2004 Act using tracked changes which is available. While every effort has been made to ensure the accuracy of these Keeling Schedules, their contents are not guaranteed.

We are always keen to engage with stakeholders who may be affected by the subject matter of this project and would be happy to hear from anyone who wishes to input.

For further information, please contact Stephen Crilly at info@scotlawcom.gov.uk.