Basic concepts and Ownership

Question 1

Explain;

• Corporeal property
• Incorporeal property
• Heritable property
• Moveable property

Answer 1

• Corporeal property is property with a physical existence
• Incorporeal property is property without a physical existence (rights = assets)
• Heritable property is generally land, things attached to land and rights relating to land
• Moveable property is non-land items

Heritable and moveable property can be classified by nature or accession (Ramsay v Ramsay)

Question 2

How are rights classified?

Answer 2

Rights are classed as a type of property and can be divided as:

Real rights – rights in things

Personal rights – rights against persons

Question 3

What do real rights legally declare/do?

Answer 3

Create an obligation against the world to allow the owner to use and enjoy their property. Real rights are enforceable against anyone who interferes with that property. (Hume)

Question 4

What do personal rights legally declare/do?

Answer 4

Create a legal tie which binds us to the necessity of making some performance. (Justinian)

They are only binding between the makers of the contract.

Question 5

How is ownership defined?

Answer 5

Where you own property, you can do what you like with it where it isn’t restrained by law or contract. (Erskine)

You may not use property you own to interfere with someone else’s property.

Question 6

Explain how real rights are aquirred.

Answer 6

• Original acquisition – When the law allows you to acquire ownership without getting it from a previous owner. The previous owners right then become extinguished.
• Derivative acquisition – When you derive ownership from another person.

Question 7

How is ownership of a corporeal moveable determined?

Answer 7

Ownership of corporeal movables is presumed from possession (Strathclyde Police v Sharp). This may be rebutted.

Question 8

Ownership is not lost simply because possession is lost and no right is acquired by finding lost property.

True or False?

Answer 8

True.

Civic Government (Scotland) Act 1982, s. 73

Question 9

Who becomes the owner of abandoned corporeal moveables?

Answer 9

The Crown.

Mackenzie v MacLean – Delivery of beer to pub that were damaged, disposed into rest into a skip.

Lord Advocate v University of Aberdeen - UoA excavation team.

Question 10

What happens ownership of abandoned land?

Answer 10

Ownership of land cannot be lost by abandonment (Joint Liquidators of Scottish Coal Co Ltd v SEPA).