Reforming the Public and Private Law of the Tenement

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Carr, Daniel J and Halliday, Simon (2025) Reforming the Public and Private Law of the Tenement. Juridical Review, 2025 (1). ISSN 0022-6785 (In Press)

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Abstract

This article critically examines the law of the tenement in Scotland, encompassing both its private and public law dimensions. Traditionally regarded as a domain of private law focused on individual owners’ property interests, the law, through statutory intervention, has evolved significantly over a long period of time, augmenting the role of local authorities, granting them powers to promote the public good of safe and well-maintained buildings. We argue that effective legal analysis and reform must address both private and public law perspectives in tandem. Yet, our review identifies three core challenges. First, divergent presumptions about the temporal and spatial scale of legal intervention—short-term and individualistic versus long-term and collective—complicate the legal framework. Second, the law exhibits tensions between formal and substantive approaches, reflecting differing rationalities about its operational character. Third, significant empirical gaps exist in understanding how key actors, both public and private, interact with the law, which undermines informed reform efforts. Through a detailed review of the private law reforms under the Tenements (Scotland) Act 2004 Act and the statutory powers of local authorities, we identify complexities and overlapping regimes that pose challenges for effective implementation. We conclude by advocating for further empirical research to guide future policy development.

ORCID iDs

Carr, Daniel J and Halliday, Simon ORCID logoORCID: https://orcid.org/0000-0001-5107-6783;
CORE (COnnecting REpositories)