Acquisition

Question 1

To whom does bona vacantia fall?

Answer 1

It falls to the crown under common law and s1012 of the companies act

Question 2

What is ownersjop

Answer 2

The ultimate real right

Almost limitless- usus, fructus, abusus

Question 3

Ultimus haeres

Answer 3

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

Question 4

What happens to treasure trove

Answer 4

It falls to the crown

Lord advocate v University of Aberdeen and Bulge

Question 5

What happens to discarded property?

Answer 5

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)

Question 6

How is ownership evidenced

Answer 6

Possession gives rise to presumption of ownership

Burden is on person bringing claim “ei incumbit probatio qui dictionary non qui negat”of

Question 7

Common ownership

Answer 7

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

Question 8

Rafique v Amin

Answer 8

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

Question 9

Forms of original acquisition

Answer 9

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

Question 10

Carmichael v Simpson

Answer 10

With common ownership only ordinary use is permitted

Question 11

Erskine on common ownership

Answer 11

Co owners have the right to use “every inch” of the property

Question 12

Morrison v Kirk

Answer 12

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

Question 13

Nemo compellitur invitus detineri

Answer 13

No one will be forced to remain in common ownership

Question 14

Upper Crathes v Baileys Exrs

Answer 14

The court (subject to one exception) has no discretion to refuse action of division or sale

Question 15

Bona vacantia

Answer 15

Ownerless goods.

Falls to crown from common law and Companies Act 2006 s1012

Question 16

What are the two elements of possession

Answer 16

Physical element: exercising control over property

Mental element: knowledge and intention

Question 17

What are two presumptions of possession

Answer 17

That possession is lawful
That the possessor is owner
These can be overturned through consent or court order

Question 18

What are good faith possessors entitled to

Answer 18

The fruits

Damages for improvements they made

Question 19

What is spuilzie

Answer 19

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

Question 20

What’s a remedy when someone interferes with your possession

Answer 20

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)

Question 21

Distinguish the two cases which deal with an action for interference with possession

Answer 21

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

Question 22

What are the essentials for voluntary transfer

Answer 22

• capacity and consent

- agreement on parties, property and price

Question 23

What is evidence of land ownership

Answer 23

An entry in the land register will give rise to a presumption of title but an entry in the register of sasines will not