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Scots Property Law > Basics > Flashcards

Basics Flashcards

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1
Q

Real Rights

A 
Ownership
Servitude 
Real Bursen 
Lease
Right in Security
Proper Liferent (usufruct)
Possession
Public Rights of way 
IPR
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2
Q

Subordinate real rights exist in what type of property?

A

Corporeal heritable things (land)

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3
Q

What are the three subordinate real rights that can be held in land?

A
  • servitudes
  • real burdens
  • lease
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4
Q

What is the basic definition of a servitude?

A

The right to make certain use of land for the benefit of neighbouring land

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5
Q

Real burden basic definition?

A

Obligation not to make certain use land for benefit of neighbouring land

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6
Q

Lease basic definition

A

Right to possess heritable property

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7
Q

Subordinate real right in all things: list

A

Right in security

  • Usufruct
  • Liferent
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8
Q

Right in security?

A

Mechanism by which creditor can enforce payment (mortgage)

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9
Q

Usufruct?

A

Proper ligament: right to use property and its fruits

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10
Q

Proper liferent?

A

Right to use the property and its fruits for their lifetime

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11
Q

Possession is?

A

Having control over something

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12
Q

Do you have to physically hold something to have possession of it?

A

Yes, must have physical control and intend to control it (not accidental)

Physical + mental state

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13
Q

What is the legal significance once you have possession?

A

Cannot be legally dispossessed

- right to get it back if its taken away

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14
Q

Parameters of possession?

A
  • unclear
  • usually possession coincides with ownership so law unclear
  • usually rely on ownership rights
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15
Q

What are not real rights?

A
  • public rights of way

- IPR’s

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16
Q

Why are public rights of way not real rights?

A

As non-patrimonial

  • in alienable
  • same as real rights from viewpoint of the owner
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17
Q

What is the principle/primary real right?

A

Ownership

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18
Q

What is ownership the right of?

A

Usus, fructus and abusus

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19
Q

What is fructus?

A

The right to the fruits of the thing

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20
Q

Abusus is?

A

The right to destroy the thing or transfer it or use it up

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21
Q

Is ownership unlimited?

A

In theory, put public law always intervenes to some extent

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22
Q

What are the objects of ownership?

A

The thing that you own

23
Q

Can you own corporeal things?

A

Gretton thinks so

24
Q

Can you own ownership?

A

Reid thinks you can’t, you own corporeal things but you hold rights.

25
Q

What is common ownership?

A

2 or more people sharing the right of ownership

26
Q

2 situations where common ownership arises?

A

1) cohabiting couple

2) Owning a flat (own your own flat but shared ownership of stairwells etc)

27
Q

How many rights of ownership exist in common ownership?

A

One, it is just shared

28
Q

How is the ownership shared?

A

Pro-indiviso, presumed equal

29
Q

Do you just draw a line down the middle in shared ownership?

A

No, every atom of the building is owned 50/50

30
Q

Presumed equal unless…?

A

State otherwise

31
Q

3 principles that regulate common ownership?

A
  • Ordinary use
  • No excessive benefit
  • Repairs/ alterations
32
Q

What premise are the three principles based on?

A

That each owner is entitled to every inch of the thing

33
Q

What does ordinary use entail?

A
  • depends on thing in question.
  • fact specific
  • ordinary to walk on stairs not to sleep on them
34
Q

What does no excessive benefit entail?

A

Can’t use area just for yourself. if its ordinary to padlock bikes on the stairs is okay but not if your bike takes up all the space.

35
Q

What does the principle of repairs and alterations entail?

A

Unanimous agreement required

  • In tenements (scheme decisions)
36
Q

Does death end shared ownership?

A

No, their death means their ownership passes to whoever inherits

37
Q

Can you sell just one share?

A

Yes

38
Q

Can you be stopped from selling your share?

A

No

39
Q

What is more common to do if you want out of common ownership?

A

Get court to order division and sale

40
Q

Collins v Sweeny?

A

Could court order sale from one to the other?

No. Can only sell share on the open market

41
Q

Joint property is?

A

Different from common property, the way that trust owns things

42
Q

Separate tenements are?

A

When there is more rights of ownership in relation to one piece of land (flats)

43
Q

What are separate tenements held in?

A

Heritable corporeal property

44
Q

Conventional separate tenements are created by?

A

Agreement

45
Q

Examples of conventional separate tenements?

A

Flats, underground garages, minerals (except coal)

46
Q

Legal separate tenements are?

A

Things on your land you have no ownership over.

47
Q

What usually creates legal separate tenements?

A

The law stops you owning these things, usually valuable things the crown wants to keep back.

48
Q

What are some examples of legal separate tenements?

A

Salmon fishing, gold and silver mines, coal.

49
Q

2 important powers in ownership?

A

1) power to transfer ownership

2) power to grant subordinate real rights

50
Q

Who can grant real rights?

A

Only the owner

51
Q

Does your ownership change once subordinate real rights are granted?

A
  • No still remains in tact, but may be less valuable.
52
Q

How many real rights are there?

A

7

1) ownership
2) servitude
3) real burden
4) lease
5) right in security
6) proper life rent (usufruct)
7) possession

53
Q

What two things are not subordinate real rights?

A

Public rights of way and IPR

54
Q

What real rights can be enforced in all real rights not just property?

A

Rights in security, proper liferent and possession.

Scots Property Law (13 decks)

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