Optional Extra - January 2007
Welcome to Optional Extra. Every month we'll update you about what's happening in the world of housing and disabled people and, of course, at Ownership Options. We'll be covering subjects such as the changes in legislation affecting adaptations, the roll-out of the Homestake homebuyers' scheme and developments in benefits-based mortgage lending for disabled people. Along the way, we aim to highlight cases of good practice as well as examples of the barriers faced by disabled people in their search for decent housing.
We welcome your comments, and suggestions for subjects to be covered in future issues, which can be emailed to optionalextra@ownershipoptions.org.uk. Feel free to forward the newsletter to your colleagues, who can subscribed by emailing us at the address above quoting "subscribe" in the subject line.
The right to adapt commonly owned areasAll owner-occupiers, and most tenants, have a right to adapt the parts of the property they or their landlord wholly own as long as they obtain the necessary warrants and permissions. The right to adapt commonly owned areas, such as stairs, entrance doors and gardens is, however, far more complicated.
Ms A lived in a tenement in Edinburgh and, as a result of her impairment, needed adaptations to the ‘common parts’ of the property to enable her to access her flat. One of Ms A’s other 2 neighbours objected to these adaptations taking place. As a co-owner of these common parts she obviously had some right to object. The questions was, could they block the adaptation and was there any way around the objection?
Every owner-occupier has a right to adapt the parts of the property they wholly own as long as they obtain the necessary warrants and permissions. Similarly, a tenant of a council or housing association cannot have a request to adapt their property at their own cost refused unreasonably (Housing [Scotland] Act 2001). Even privately tenants now have a right to adapt their rented property following work by Ownership Options (Housing [Scotland] Act 2006). (See Optional Extra November 2006.)
The process by which owners make a decision about maintenance, repairs or improvements to the co-owned parts of their property is normally defined in the property’s title deeds. The deeds should also set out how the costs incurred will be allocated.
In most cases, a unanimous agreement is required rather than a simple majority if works are to take place. Note that this unanimity will normally be of the actual owners, not those who vote. The division of costs is normally stipulated and can be a straight division by the number of owners or by fractions based on the location in the building or use of the property.
Since deeds vary in their conditions, the first action in each case should be to have the title deed conditions reviewed by someone with an understanding of these issues. This will usually be a solicitor.
Unfortunately, many title deeds do not define the method for making decisions on, or the division of costs of, maintenance, repairs or improvements to common areas. In these situations Scots common law holds that owners of the flats above the ground floor and below the top floor are not responsible for the foundations or roof; these being the responsibility of the ground and top floor occupants respectively. Any works required the unanimous agreement of all owners.
The Tenement (Scotland) Act 2004 was created to resolve such situations where title deeds were unclear and can supersede the common law. Under the Act, owners still decide matters between themselves in the first instance by reference to any specific terms in the title deeds or by making an agreement amongst themselves. If agreement is not possible, the Act dictates how decisions are made and costs allocated.
Unfortunately, adaptations are classified as improvements to, rather than maintenance or repairs of, a property. The Tenement (Scotland) Act does not cover improvements unless they arise as part of maintenance. For example, the replacement of crumbling concrete stairs with a non-slip material could be seen as maintenance that resulted in an improvement. Information about how the Act affects maintenance is attached at the end of this document.
Gaining approval for adaptations from owners will therefore, unless there are specific conditions in the title deeds, still usually require unanimous agreement. Note that if owners agree to works taking place this does not automatically result in them having to pay towards the works. This is because the permission to improve is separate decision to the apportionment of costs.
The Scottish Executive has been following the English review of the problems encountered in making adaptations to common areas. The report of this review has been published but has little relevance to Scotland since common areas are normally owned by a single leaseholder in England. Gaining the permission of the one leaseholder in England is significantly easier than gaining the unanimous agreement of all co-owners of communal areas, as is normally the case in Scotland.
The first step in Ms A’s case would be for the title deeds to be examined for clauses about the process of decision making and allocation of costs. It is likely that these will require unanimous agreement of all owners and this will certainly be the case if the title deeds are unclear since common law will apply.
The only hope in Ms A’s case is that the owner opposing the adaptation can be persuaded to agree to the works.
Enhancing EHAN's training programmeWe recently worked with the Edinburgh Housing Advice Network (EHAN) when Kirsteen and Rhona, secondees from City of Edinburgh Council, ran two courses on "Housing options in the private sector". These courses covered subjects including renting in the private sector, buying a property through the Homestake scheme, buying a property while on benefits, grant funding, adaptations and support & referrals.
Attendees included staff from a number of voluntary agencies and different sections from the City of Edinburgh Council. The courses were well attended and good feedback was given. If you would be interested in learning more about any of those areas, please contact Ownership Options on 0131 661 3400.
Using Special Needs Capital Grant to assist disabled homebuyersSNCG is one of a number of grants made available by Communities Scotland (or a local authority in the case of the Edinburgh or Glasgow) to support the provision of affordable housing. Ownership Options specialises in the use of this grant to assist disabled people and their families who need to buy or build a property more suited to their needs but cannot afford the cost of doing so.
The grant is only available to private developers and voluntary organisations. It is not available to housing associations, housing co-operatives and other Registered Social Landlords. In addition, grant is only provided when it is required to enable the construction, or purchase, of a house to go ahead. The amount of SNCG funding must not exceed 40% of the grant eligible costs. This figure of 40% is the ceiling for subsidy from all public sources.
The grant itself must be made to a private company or voluntary organisation, who then grant on to the individual. The funds are not transferred to the organisation applying for grant, and therefore on to the recipient, until all legal paperwork relating to the property is complete. Since this is normally 1 to 2 months after the property is purchased or completed the client is required to take out bridging finance to enable the purchase to go ahead. The cost of bridging finance, along with architectural and other technical fees, can be included within the grant. Legal and estate agency fees, stamp duty and any other moving costs must be paid by the grant recipient, whilst adaptations grants are normally negotiated separately with the local authority.
The recipient is the legal owner of the house they build or buy with SNCG. The sum of grant is, however, secured against the property. Communities Scotland can, for 10 years following the provision of grant, request the repayment of whole sum if the house is no longer used by a disabled person.
Mr & Mrs S lived in a four-bedroom, two-storey detached villa. Both have difficulty with their mobility and struggled to access the upper part of the house, where all the bedrooms and the main bathroom were situated. The family’s social workers and occupational therapists agreed that it was not possible to adapt or extend the current property any further to suit the couple’s needs. Their assessments showed that the family needed a three-bedroom property, to provide separate bedrooms for Mr & Mrs S, and a third bedroom for a live-in carer.
The Ss have lived in the local area for many years, and have a good network of friends who provide support when needed. As long-term owner-occupiers they had built up considerable equity in their property, and it would not have been appropriate for them to give up their security to accept a private let. There is a lack of accessible three- bedroom properties within the local council housing stock, and the picture is similar with local housing associations. There is also a lack of suitable accessible housing currently being built within the local area under the Homestake scheme.
Mr & Mrs S spent several months looking for suitable 3 bedroom level-access properties to buy on the open market. Unfortunately, all the properties they viewed were above their price range or outside their local support network. In the end they opted for a two-bedroom bungalow, with attic space suitable for conversion to supply a third bedroom for a carer. Their occupational therapist confirmed that the property would meet the couple’s needs after the conversion was complete.
With a mortgage sustained by their combined income, together with the profit of the sale of their family home and 7% SNCG from Communities Scotland, Mr & Mrs S purchased the bungalow, and work is now under way on the conversion of the attic.
Delicious Donuts and Occupational TherapistsRichard Hamer was asked to speak on the subject of partnerships at the COTSSH Annual Conference held in Derry, Northern Ireland in November 2006.
In the opening session of the second day he described Ownership Options work to ensure disabled people have access to wider housing options. Using the story of a Portuguese man who rented sunbeds, he illustrated how looking at wider options could open up significantly more opportunities for success. Vital, who had little opportunity to make a living renting his sunbeds, had formed a partnership with his brother in law and now earned an amazing £30,000 per year selling just donuts!
The College of Occupational Therapists Specialist Section – Housing was set up to promote and share the interests, skills and experience of occupational therapists working in the field of housing. Members work with clients of all ages including children, and with a wide range of disabilities, including physical disabilities, learning disabilities and mental health problems. Members are employed in a variety of areas, including Social Services, Housing Departments, Housing Associations, Housing Improvement Agencies, private work, Disability Housing Services and Health Trusts and Local Authorities.
Media awareness of disabled people's housing problems rises It is rare that the housing problems facing disabled people are highlighted in the media at all, let alone twice within 2 weeks. Yet late last year we were successful in encouraging both Newsnight Scotland and the Guardian to cover the issue.
The Newsnight Scotland article looked at the real lack of affordable, accessible property available to disabled people. It included a range of contributors including Dr Nicky Burns of the Strathclyde Centre for Disability Research looking at housing policy, Peter Mountford-Smith of Margaret Blackwood Housing Association on universal house design, Malcolm Chisholm MSP (then Minister for Communities) on the Scottish Executive’s role and Richard Hamer from Ownership Options on the problems in the private sector.
It also highlighted the case of Carol Kernachan, who lives with her visually impaired daughter and physically disabled son in a privately rented property in Glasgow. Whilst the property had been adapted with a ramp, the bathroom was not big enough to allow her son to be bathed safely. The result was that he had to go to another family member’s flat each day to access bathing facilities.
A video clip from the programme can be viewed here -
The Guardian article focused on the new housing rights for disabled tenants brought in through the Disability Discrimination Act 2005 and the Housing (Scotland) Act 2006. Commenting on these important proposals, Richard Hamer pointed out that these rights would be undermined unless the supply of accessible properties increased.
How bad is the housing situation facing disabled people?Following the media attention on the lack of accessible housing, we have prepared a factsheet highlighting Scottish Executive statistics which illustrate the housing problems facing disabled people. The factsheet can be viewed here.
Right Housing - Right People - Right ChoicesRichard Hamer, Director of Ownership Options, will be speaking at GCIL's conference on Monday 19th February 2007 at the Crowne Plaza Hotel, Glasgow. The Conference brochure can be viewed here.
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