Professor Ken Reid notes in his Property (Stair Memorial Encyclopaedia vol. 18) at para 277 that ‘[t]enements or 'lands' were in widespread use in Scotland as early as the sixteenth century. But despite this long history they are little discussed by juristic writers before Hume and Bell and there are almost no reported cases earlier than 1800.’
Writing on tenements in his Institutions, James Dalrymple, Viscount Stair refers (at II.7.6) to the situation in which
...diverse owners have parts of the same tenement, it cannot be said to be a perfect division, because the roof remaineth roof to both, and the ground supporteth both; and, therefore, by the nature of communion, there are mutual obligations upon both ...
Above: Gladstone’s Land (Tony Hisgett, Creative Commons), below: The Flowers of Edinburgh (British Museum, Creative Commons)
There is ofttimes an instinct in Scots law to look back to the Law of Rome as a possible legal fountainhead. However, there is some difficulty in doing so in the case of tenements – while the modern word ‘condominium’ may have Latin roots (con + dominium), modern tenements are in fact difficult to reconcile with Roman Law because of the doctrine of superficies solo cedit.[i] Thus, while sharing some similarities with modern Scots tenements (i.e. from circa 1600 forward), Rome’s insulae, were in fact at best primitive apartment complexes, with a single owner generating rent from tenants – i.e. multiple occupancy under single ownership.[ii] The case has been made by Rudolf Hubner (1864-1945)[iii] that modern tenement law actually comes from German customary law and has its origins in the fact that in ancient Germany, most dwellings were no more than tents, which people could carry as they followed their grazing herds. As a result, it came to be accepted as an unproblematic and general rule, that one could own fixed improvements on another person’s land.[iv] This was often deployed to solve the same problem which Roman law would have solved by means of accession and compensation, namely that of the improver acting in good faith. At any rate, this legal ferment later allowed the concept of the tenement, to begin to grow in Medieval Germany and spread through Europe.[v] Of course, since through this mechanism one could legally own a second or third storey without ownership in the land itself, and ownership is always a substantial economic advantage over a lease, it became quite popular. Credence to this ‘German roots’ position might on the face of it be drawn from the Scottish Law Commission’s Report on the Law of the Tenement:
Tenements have a long history in Scotland. The tenement or “land” was known in medieval times, especially in Edinburgh. As usual, the law came later. The “law of the tenement” - in the sense of a special and self-contained set of rules governing the ownership and maintenance of tenement buildings - dates only from the seventeenth century. The first work to offer a systematic exposition of the law was Stair’s Institutions, which was published in 1681.Stair’s brief account, while presumably based on the custom of burghs, may have been influenced by the law in other European countries, particularly by the Germanic institution of Stockwerkseigentum, to which it bears a strong resemblance.[vi]
However, and while Hubner’s work undoubtedly warrants further research, no-one, at this stage, should be staking their shirts on it. The SLC’s comment is pretty much a throwaway line and modern legal scholars know to be cautious in respect of the romance of old books.
Even though the concept of the tenement first grew on the continent, it was almost done away with by the rediscovery and idealization of Roman law.[vii] In Scotland by contrast, the old concept of the tenement had an uninterrupted history of legal development, which was imported from continental sources in the early modern period. A famous example of this is Gladstone’s Land in the Old Town of Edinburgh. Built in the 1620’s and nearly destroyed in the early 20th century, Gladstone’s Land is now a heritage site, having been restored to its original condition. Case law from the late 18th century onwards lays out the basic rules for the Scottish tenement, central among which was Anderson v Dalrymple which set out one of the defining features of the Scots tenement; namely that the common close, the stairs which would grant access to each flat, were to be under co-ownership, while the flats are divided up and owned individually. This had an effect, according to Tobias Smollett, in his 1771 novel, The Expedition of Humphrey Clinker of making the common staircase nearly as filthy as the street outside:
Above: Tobias Smollett (National Portrait Gallery, public domain)
…Every story is a complete house, occupied by a separate family; and the stair being common to them all, is generally left in a very filthy condition; a man must tread with great circumspection to get safe housed with unpolluted shoes—Nothing can form a stronger contrast, than the difference betwixt the outside and inside of the door, for the good-women of this metropolis are remarkably nice in the ornaments and propriety of their apartments, as if they were resolved to transfer the imputation from the individual to the public. You are no stranger to their method of discharging all their impurities from their windows, at a certain hour of the night, as the custom is in Spain, Portugal, and some parts of France and Italy—A practice to which I can by no means be reconciled; for notwithstanding all the care that is taken by their scavengers to remove this nuisance every morning by break of day, enough still remains to offend the eyes, as well as other organs of those whom use has not hardened against all delicacy of sensation.
The inhabitants seem insensible to these impressions, and are apt to imagine the disgust that we avow is little better than affectation; but they ought to have some compassion for strangers, who have not been used to this kind of sufferance; and consider, whether it may not be worthwhile to take some pains to vindicate themselves from the reproach that, on this account, they bear among their neighbours. As to the surprising height of their houses, it is absurd in many respects; but in one particular light I cannot view it without horror; that is, the dreadful situation of all the families above, in case the common staircase should be rendered impassable by a fire in the lower stories—In order to prevent the shocking consequences that must attend such an accident, it would be a right measure to open doors of communication from one house to another, on every story, by which the people might fly from such a terrible visitation.” [viii]
The lay-attitude therefore seems to have been that the stairs, and indeed any part of the building not pertaining to the separately owned flats themselves, were as much a usufruct as the street or the ground itself, with the proprietors seemingly as careless of the possibility that neglect for the structure could imperil their way of life, as the owner of a detached home would disregard the idea that the earth would cease to support the foundation. Also, though fire was a universal concern in the pre-industrial world, yet as Smollett relates, there was nothing we would recognize as serving the purpose of a fire escape. In short, to put it as dryly as Thomas Pennant in his 1769 work, A Tour in Scotland, “the inconvenience of this particular structure need not be mentioned” even by the standards of a society with no running water, and no professional fire department.
It is small wonder then, given the early history of the tenement, that the courts throughout the 19th and 20th centuries began to curtail the license afforded to owners by continuing to define their rights and duties, eventually building up a substantial body of case law, all of which is now codified in the Tenements (Scotland) Act 2004. Yet because of the legal antiquity of the Scottish tenement, a problem that continues to crop up in various forms is how to meet modern expectations. In short, the law hasn’t changed much since Gladstone’s Land was built in the 1620’s, but the buildings themselves have integrated all the complexities of modern infrastructure, and society has come to new expectations of ownership in the meantime. The most glaring change – other than the obvious of buildings growing in size, and becoming internally supported apartments with central heating, integrated plumbing and fire routes – is that housing is seen today as a store of value.[ix] The issue, therefore, is how to realize that value in tenements, where the expectation of owners has not evolved with the demands of the modern housing market.
Of critical concern in the modern real-estate market is that the structure and amenities be in good repair and improved to meet modern expectations of comfort. Since the Royal Institution of Chartered Surveyors – hereafter called RICS – estimates that around 60% of tenements in Scotland need repairs in order to meet with those expectations, their proposals as part of The Working Group on the Maintenance of Tenement Scheme Property involve a new ownership regime, modelled on the American style of corporate condominium ownership. In very broad strokes, this involves an “owners association,” analogous to a condo corporation, which is given executive control of the building to improve it for the benefit of the owners, who are all members in the company, and with the owners association being funded by annual contributions to an improvements fund – called a “sinking fund” in the proposal – by the owners. This is ideal also from the government’s perspective, since the tenement would become a corporate body, with corporate publicity, and subject to the government oversight that incorporation entails. Theoretically, if this could be achieved, then the tenement can make one great leap forward into the 21st century, casting off the baggage of 500 years of insular development, yet there are obstacles which are significant. The most important obstacle is that in America, one agrees at the outset of purchasing a condo, that one will be a member of the condo corporation and abide by its rules.[x] This is important, because it avoids conflict with constitutional rules concerning freedom of association, whereas if the government in Scotland were to impose owners’ associations on owners without consent, it is guaranteed to engage Article 11 of the European Convention of Human Rights (ECHR), meaning that it could very probably be outwith the legislative competence of the Scottish government as defined by the Scotland Act 1998.[xi]
Without the owners’ association, none of the rest of the proposals have any effective purpose, since the improvements fund would be without control, yet this would be a very likely outcome. In the Russian Federation, a similar attempt to impose owners’ associations by the government was held to be a violation of freedom of association,[xii] and not only is Russia a signatory to the ECHR,[xiii] but the Russian Federal Constitution was heavily influenced by the convention rights.[xiv] No matter how desultory the result of the Russian Constitutional Court’s rejection of forced association in the context of tenements has been, the legal reasoning behind it is not without merit. Both the Scottish and Russian jurisdictions have also seen abortive attempts by the government to transfer ownership of government-held flats to occupiers, which in Scotland was known as “right to buy.” Right to buy legislation very straightforwardly gave renters in government housing the right to buy their flat subject to certain conditions, yet this has been slowly phased out.[xv] This means that there are tenements, which are now interminably of 3 different types; fully privately-owned tenements, tenements where one part is constituted by private owners who had exercised right to buy, while some other flats are leased from the council, and lastly tenements where every resident rents from the council. So, on whom will the costs of improvements fall in the intermediate case? This too, remains unaddressed. Therefore, it may well be that the Tenements (Scotland) Act 2004, though perhaps sub-optimal, has in fact realized the scope of the currently possible, having regard to the long history of the Scottish tenement as both a legal concept and an everyday reality.
In a future instalment of this blog, I will discuss how it so happens that the Tenements (Scotland) Act 2004 and the Title Conditions (Scotland) Act 2003, conspire to make it such that there are two different kinds of tenement in Scots law, with the 2003 Act already emulating the North American model.
[i] Gaius, Inst, II, 73.
[ii] Natelson, R. G. (1987) Comments on the Historiography of Condominium: The Myth of Roman Origin. Okla. City U. L. Rev. 12 (1), 17 — 58. Available from: http://scholarship.law.umt.edu/faculty_lawreviews/43 [Accessed 20th January 2020], p 52-53. See Dryden’s translation of Juvenal’s third satire: ‘Who fears in country-towns a house's fall/Or to be caught betwixt a riven wall?/But we inhabit a weak city here/Which buttresses and/props but scarcely bear/And 'tis the village-mason's daily calling/To keep the world's metropolis from falling,/To cleanse the gutters, and the chinks to close,/And, for one night, secure his lord's repose.’
[iii] Hubner, R (1918) A History of Germanic Private Law, Norwood Press, Boston. p 172-73 (available via archive.org).
[iv] Ibid. Though the antiquity of pre-reception German law is uncertain, the German law on Stockwerkseigentum is mooted, albeit tentatively, by the Scottish Law Commission (note 4, infra) as being a possible starting point for Scottish tenement law.
[v] Despite Roman influence, horizontal ownership is found in the Code Napoleon, Art. 664. For a brief overview of the history as relates to Scotland, see Scottish Law Commission No. 162, Report on the Law of the Tenement, (Mar 1998), p 3.
[vi] Scottish Law Commission No. 162, Report on the Law of the Tenement, (Mar 1998), p 3.
[vii] Natelson, p 30.
[viii] Letter To Dr LEWIS, 18 July. Note also ‘the famous Dr L—n’s’ (Linden’s?) earlier observation in the novel “that he had reason to believe the stercoraceous flavour, condemned by prejudice as a stink, was, in fact, most agreeable to the organs of smelling; for, that every person who pretended to nauseate the smell of another’s excretions, snuffed up his own with particular complacency; for the truth of which he appealed to all the ladies and gentlemen then present: he said, the inhabitants of Madrid and Edinburgh found particular satisfaction in breathing their own atmosphere, which was always impregnated with stercoraceous effluvia” Letter ‘To Sir WATKIN PHILLIPS, of Jesus college, Oxon. HOT WELL, April 18’, (My italics)
[ix] For further information, see Scottish Law Commission No. 91, Law of the Tenement, (Dec 1990). & Scottish Law Commission No. 162, Report on the Law of the Tenement, (Mar 1998).
[x] See Chapter 718 of the Florida Statutes, The Condominium Act (Part V, 718.501 - 509) for an example of state laws on notification prior to sale. Federal law also exists but is not discussed here.
[xi] Scotland Act 1998, s 29.
[xii] Lujanen, M. (2010) Legal challenges in ensuring regular maintenance and repairs of owner-occupied apartment blocks. International Journal of Law in the Built Environment (IJLBE). 2 (2), 180.
[xiii] Anchugov & Gladkov v Russia, 2013 I Eur. Ct. H. R. (11157/04, 15162/05).
[xiv] Compare Article 30 of the Constitution of the Russian Federation with Article 11 of the ECHR, see also Article 15.4 of the Russian Constitution.
[xv] Right to buy ended appropriately on April 1, 2016 pursuant to the Housing (Scotland) Act 2014, s 1. See also Simpson v Hillcrest Housing Association Ltd 2016 GWD 38-682, Lands Tribunal.