Basics Flashcards
Real Rights
Ownership Servitude Real Bursen Lease Right in Security Proper Liferent (usufruct) Possession Public Rights of way IPR
Subordinate real rights exist in what type of property?
Corporeal heritable things (land)
What are the three subordinate real rights that can be held in land?
- servitudes
- real burdens
- lease
What is the basic definition of a servitude?
The right to make certain use of land for the benefit of neighbouring land
Real burden basic definition?
Obligation not to make certain use land for benefit of neighbouring land
Lease basic definition
Right to possess heritable property
Subordinate real right in all things: list
Right in security
- Usufruct
- Liferent
Right in security?
Mechanism by which creditor can enforce payment (mortgage)
Usufruct?
Proper ligament: right to use property and its fruits
Proper liferent?
Right to use the property and its fruits for their lifetime
Possession is?
Having control over something
Do you have to physically hold something to have possession of it?
Yes, must have physical control and intend to control it (not accidental)
Physical + mental state
What is the legal significance once you have possession?
Cannot be legally dispossessed
- right to get it back if its taken away
Parameters of possession?
- unclear
- usually possession coincides with ownership so law unclear
- usually rely on ownership rights
What are not real rights?
- public rights of way
- IPR’s
Why are public rights of way not real rights?
As non-patrimonial
- in alienable
- same as real rights from viewpoint of the owner
What is the principle/primary real right?
Ownership
What is ownership the right of?
Usus, fructus and abusus
What is fructus?
The right to the fruits of the thing
Abusus is?
The right to destroy the thing or transfer it or use it up
Is ownership unlimited?
In theory, put public law always intervenes to some extent
What are the objects of ownership?
The thing that you own
Can you own corporeal things?
Gretton thinks so
Can you own ownership?
Reid thinks you can’t, you own corporeal things but you hold rights.
What is common ownership?
2 or more people sharing the right of ownership
2 situations where common ownership arises?
1) cohabiting couple
2) Owning a flat (own your own flat but shared ownership of stairwells etc)
How many rights of ownership exist in common ownership?
One, it is just shared
How is the ownership shared?
Pro-indiviso, presumed equal
Do you just draw a line down the middle in shared ownership?
No, every atom of the building is owned 50/50
Presumed equal unless…?
State otherwise
3 principles that regulate common ownership?
- Ordinary use
- No excessive benefit
- Repairs/ alterations
What premise are the three principles based on?
That each owner is entitled to every inch of the thing
What does ordinary use entail?
- depends on thing in question.
- fact specific
- ordinary to walk on stairs not to sleep on them
What does no excessive benefit entail?
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.
What does the principle of repairs and alterations entail?
Unanimous agreement required
- In tenements (scheme decisions)
Does death end shared ownership?
No, their death means their ownership passes to whoever inherits
Can you sell just one share?
Yes
Can you be stopped from selling your share?
No
What is more common to do if you want out of common ownership?
Get court to order division and sale
Collins v Sweeny?
Could court order sale from one to the other?
No. Can only sell share on the open market
Joint property is?
Different from common property, the way that trust owns things
Separate tenements are?
When there is more rights of ownership in relation to one piece of land (flats)
What are separate tenements held in?
Heritable corporeal property
Conventional separate tenements are created by?
Agreement
Examples of conventional separate tenements?
Flats, underground garages, minerals (except coal)
Legal separate tenements are?
Things on your land you have no ownership over.
What usually creates legal separate tenements?
The law stops you owning these things, usually valuable things the crown wants to keep back.
What are some examples of legal separate tenements?
Salmon fishing, gold and silver mines, coal.
2 important powers in ownership?
1) power to transfer ownership
2) power to grant subordinate real rights
Who can grant real rights?
Only the owner
Does your ownership change once subordinate real rights are granted?
- No still remains in tact, but may be less valuable.
How many real rights are there?
7
1) ownership
2) servitude
3) real burden
4) lease
5) right in security
6) proper life rent (usufruct)
7) possession
What two things are not subordinate real rights?
Public rights of way and IPR
What real rights can be enforced in all real rights not just property?
Rights in security, proper liferent and possession.
