Basics Flashcards by c f

Real Rights

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

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Subordinate real rights exist in what type of property?

Corporeal heritable things (land)

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

servitudes
real burdens
lease

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What is the basic definition of a servitude?

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

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Real burden basic definition?

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

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Lease basic definition

Right to possess heritable property

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Subordinate real right in all things: list

Right in security

Usufruct
Liferent

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Right in security?

Mechanism by which creditor can enforce payment (mortgage)

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Usufruct?

Proper ligament: right to use property and its fruits

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Proper liferent?

Right to use the property and its fruits for their lifetime

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Possession is?

Having control over something

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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

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What is the legal significance once you have possession?

Cannot be legally dispossessed

- right to get it back if its taken away

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Parameters of possession?

unclear
usually possession coincides with ownership so law unclear
usually rely on ownership rights

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What are not real rights?

public rights of way

- IPR’s

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Why are public rights of way not real rights?

As non-patrimonial

in alienable
same as real rights from viewpoint of the owner

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What is the principle/primary real right?

Ownership

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What is ownership the right of?

Usus, fructus and abusus

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What is fructus?

The right to the fruits of the thing

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Abusus is?

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

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Is ownership unlimited?

In theory, put public law always intervenes to some extent

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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?

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.