Title Deeds Take Predecence
In matters relating to decision-making around properties or developments with multiple owners, the “Golden Rule” is normally that Title Deeds should be referred to first as they take precedence. So before looking at general law, you must check the Deed of Conditions (the Title Deeds) for the property. If the deeds specify that a vote must take place at a physical meeting, that rule usually takes precedence. However, if the deeds are silent on the method of voting or allow for “written procedure,” then alternative methods are likely to be perfectly valid.
Before going much further it’s worth reading my post about the various legal jigsaw pieces and when they apply. In short, if yours is a more modern, post 2003, property then it’s likely that your Deeds have been written to acknowledge the “Development Management Scheme” arrangements (but only if the Deeds make explicit reference to “Development Management Scheme”). Otherwise, the arrangements of the “Tenement Management Scheme” will apply, to “fill in the gaps and any lack of clarity in your Title Deeds.
Tenement Management Scheme
The Tenement Management Scheme is the “safety net” if Title Deeds are silent, unworkable, or different owners’ deeds say different things. In these cases the Tenement Management Scheme (TMS) from the Tenements (Scotland) Act 2004 kicks in. The TMS is designed to be flexible and explicitly allows for decisions to be made without a physical meeting.
Under the “Consultation” Clause (Rule 2.7) of the TMS, an owner (or a factor) can propose a “Scheme Decision” without calling a meeting. To do this, they must consult every owner on the proposal and count the votes cast. This consultation and voting can legally be done by post, hand-delivery, or electronic communication (email/online portals).
The law in Scotland increasingly recognises digital signatures and electronic communication as formal notice. For a factor-led online ballot to be “bulletproof,” they must ensure every owner has been given the same information and a has clear deadline to respond, mirroring the fairness of an in-person vote.
Regardless of how the vote is held (postal, online, or in-person), the final decision must be formally notified to all owners in writing. Under the TMS, the “clock” for any owner to appeal a decision to the Sheriff Court (or likely the First Tier Tribunal if it relates to property factors actions) only starts once they have been officially notified of the result.
The Bottom Line
The Tenement Management Scheme is fairly clear that decision-making can be made via remote means (letters, emails, online voting portals). But you must be able to evidence that the process has been open and fair.
Development Management Scheme
The Development Management Scheme (DMS) is a more modern, sophisticated framework introduced by the Scottish Government in 2009. While the TMS is a “safety net” for buildings with gaps in their deeds, the DMS is an entire management “system” that a developer or a group of owners chooses to adopt.
Here is how the DMS handles management and voting, and where it sits in the legal hierarchy.
Unlike standard property rules, the DMS creates a formal legal entity called an “Owners’ Association.” This association is a body corporate, meaning it can own land, enter into contracts, and sue or be sued in its own name.
The DMS requires the appointment of a manager (usually a professional factor) who has specific statutory duties to the Owners Association, such as preparing an annual budget and maintaining a register of members (amongst other things).
Voting is generally conducted at General Meetings. Rule 11.4 of the DMS regulations specifies that voting is by a show of hands, but any member can demand a ballot (which can be conducted via paper or, in modern practice, electronic means).
Electronic Communication (Rule 22): The scheme explicitly allows for documents and notices to be sent by “electronic communication” (email) if the owner has provided an email address. This makes digital voting and portal notifications legally robust under this scheme.
The Bottom Line
Surprisingly, given that Development Management Schemes are the more “up-to-date” option, they are a bit less explicit about remote decision-making. They explicitly allow for the electronic “sending” of notices, but do “notices” include votes? This may be one that the First Tier Tribunal or the Sheriff Court will be asked to decide upon in due course.
Yes, No & Abstain
As voting outwith general meetings isn’t so common it’s important not only to be fair, but also to be able to demonstrate that the process has been fair. One thing which makes it easier to demonstrate fairness is a record of everyone’s vote. If you have a proposal on which you want to hold a vote you might think that the only voting options would be “yes” and “no”, infact it’s frequently the case that people would like to “abstain”, so giving this as an option is more likely that they will actually return their ballot (making it easier to demonstrate in future that they were consulted and exercised a vote).
