Acquisition Flashcards
To whom does bona vacantia fall?
It falls to the crown under common law and s1012 of the companies act
What is ownersjop
The ultimate real right
Almost limitless- usus, fructus, abusus
Ultimus haeres
Last heir
When someone dies intestate with no blood relatives , property passes to the crown who is everyones ultimus haeres.
It’s administered by QLTR and net value of estate can later be claimed if heirs show up
What happens to treasure trove
It falls to the crown
Lord advocate v University of Aberdeen and Bulge
What happens to discarded property?
Mackenzie v Maclean held it falls to the crown but loss does not terminate ownership, there’s an assumed negative prescription of 20 years (SCOTS LAW COMMISSION REPORT ON PRESCRIPTION)
How is ownership evidenced
Possession gives rise to presumption of ownership
Burden is on person bringing claim “ei incumbit probatio qui dictionary non qui negat”of
Common ownership
Two or more people sharing right of ownership
Share assumed to be equal (not physical division but right to equal use of every inch of the whole property- Erskine)
Only ordinary use is permitted (Carmichael v Simpson)
One co-owner can’t take excessive benefit at the expense of others
Agreement to repairs or alterations must be unanimous unless emergency repair. (Rafique v Amin). If agreement isn’t an option then division and sale. (Morrison v Kirk)
No one can be forced to remain in co-ownership “nemo compellitur invitus detineri”
Court can’t refuse action of division or sale (Upper Crathes v Baileys Exrs)
TENEMENTS ARENT COMMON OWNERSHIP
Rafique v Amin
With common ownership, repairs or alterations must be unanimous unless it’s an emergency repair.
Note that tenements aren’t common ownership and are governed by separate rules
Forms of original acquisition
Specification- creation of new nova species- object so altered as to lose identity
Accession- when one thing is overwhelmed by another and becomes part of the other object
Positive prescription- when a period of time passes
Occupancy- taking control of ownerless object
Carmichael v Simpson
With common ownership only ordinary use is permitted
Erskine on common ownership
Co owners have the right to use “every inch” of the property
Morrison v Kirk
Common owner has absolute common law right to insist on action of division or sale
If division is impractical then the whole property can be sold and the proceeds split
Nemo compellitur invitus detineri
No one will be forced to remain in common ownership
Upper Crathes v Baileys Exrs
The court (subject to one exception) has no discretion to refuse action of division or sale
Bona vacantia
Ownerless goods.
Falls to crown from common law and Companies Act 2006 s1012
What are the two elements of possession
Physical element: exercising control over property
Mental element: knowledge and intention
What are two presumptions of possession
That possession is lawful
That the possessor is owner
These can be overturned through consent or court order
What are good faith possessors entitled to
The fruits
Damages for improvements they made
What is spuilzie
Old Scottish remedy
Prove former possession and unlawful dispossession
It’s a court order to restor possession plus profits
Defence to action for spuilzie is the defence of lawful authority
What’s a remedy when someone interferes with your possession
1) action for delivery
2) interdict available against party who trespasses on moveable property that is capable of being occupied
3) spuilzie (no longer used) for unlawful dispossession
4) action for interference w possession (but must be possessor - see nacap v moffat plant and north Scottish helicopters v united technologies)
Distinguish the two cases which deal with an action for interference with possession
In north Scottish helicopters v united technologies, the company hired a helicopter which caught fire because of a fault- they sued for damages which included lost business court held that as they were possessing for their own benefit they could reclaim for losses suffered
In Nacap v Moffat plant, they weren’t the possessors of the pipes, as they didn’t have exclusive use of them
What are the essentials for voluntary transfer
- capacity and consent
- agreement on parties, property and price
What is evidence of land ownership
An entry in the land register will give rise to a presumption of title but an entry in the register of sasines will not
