Cases Flashcards
Nova Scotia Ltd v Henderson
[T]he disponee who has not registered his title enjoys no real right in the subjects. Scots law does not recognise a right which lies between a real right and a personal right ..There is no such thing as a ‘quasi-real right’
Sloan’s Dairies v Glasgow Corporation
The default rule is that risk passes on conclusion of missives
*But note this is altered by provision in missives that states risk passes on DOE
Welsh v Russell
Damages only remedy for breach of absolute warrandice
Burnett’s Tr v Grainger
Nice guys finish last and don’t get the real right
Rodger (Builders) Ltd v Fawdry
- There was contractual agreement (concluded missives) with B to sell. There was a failure of B to pay the price when they should have and A attempted to rescind the missives and instead sell to C. Disposition thus granted to C and C registered. C knew what had happened between A and B. Court held that there hadn’t been a valid rescission and so the missives between A and B were still good.
- C’s ownership could therefore be set aside by B on the basis of BAD FAITH.
- Note that C does become owner but under a voidable title that B can set aside.
Wallace v Simmers
Offside goal rule can only apply where competition is between people entitled to a real right
Brewster and Sons v Caughey
Bad faith at anytime before acquiring the real right counts under offside goal rule
Sharp v Thomson
Held that the buyer’s personal right prevails against the seller’s receiver
- Unregistered disp due to negligence and attachment of FC from previous owner
- HoL held Thomsons were protected from floating charge on the basis that they had a BENEFICIAL INTEREST in the property and creditors didn’t - FC didn’t apply
Burnett’s Tr v Grainger
- Couple buying property from Burnett. Transaction concluded in the normal way: payment made and disposition delivered but Grainger’s solicitor forgot to register and did it a year later.
-Later Burnett had become insolvent and her property was transferred to a trustee in sequesation.
-Trustee got onto the register (race to the register) therefore Grainger didn’t get ownership.
-HoL took a narrow approach to Sharp.
Harris v Abbey National PLC
Bank repossessed a house and were deemed to possess the contents of a locked cupboard even though they didn’t know what was inside
- Were therefore liable for the contents of the cupboard which were damaged
Watson v Shields
Positive prescription: non domino
- Disp stated he didn’t own property
= deed shouldn’t be self destructive
Landward Securities Ltd v Inhouse Ltd
Positive prescription: non domino
- Disp said they weren’t sure if they owned the property
= held not to be invalid on the face of it so prescription could be founded on the deed
Mackenzie v MacLean
Criminal case about the beer barrels that were sold on.
= abandoned property owned by the crown
Shetland Islands Council v BP
Accession
Land owned by council - BP builds refinery on it
- Council owns land and then owns refinery the moment it is built due to law of accession
Leases
HELD - without agreement for rent there’s no lease. Parties agreed there’d be 23-year long lease but court weren’t willing to apply market rent so imposed annual rent
Christie v Smith’s Exr
Summer house
- Held it had acceded to the land despite resting on its own weight - because weight was so heavy, this was considered sufficient joining to the land even though there wasn’t physical attachment
- the summerhouse also filled a gab in a wall around the garden = functional subordination element apparent too
Brand’s Trs v Brand’s Trs
Accession
- where tenant carries out improvements, due to accession these become property of the land
- HOWEVER right of severance where tenant allowed to undo connection and take the things away
Black v Duncan
= exercising and allowing dogs to do toilet is not ordinary use of a shared back green
Cochrane v Ewart
Servitudes
- grant implied if servitude is necessary for reasonable enjoyment of the property
Gow’s Trs v Mealls
Servitude
If there’s an alternative access route, unlikely court will order an implied grant
ASA International Ltd v Kashmiri Properties
Coates bacon roll case (servitudes)
- court hesitant to provide servitudes where it hasn’t been done expressly
Murray v Medlay
Servitudes
= no implied reservation as running water not essential for the house (v old case)
Bowers v Kennedy
Servitudes
Access to landlocked land held to be inherent right of property
Patrick v Napier
Servitudes
- sporting rights weren’t held to be a servitude as right to fish didn’t make property more attractive to future owners
Regency Villas Ltd v Diamond Resorts
Servitudes
- timeshares, right to use recreational facilities held to be of benefit to all owners
= benefit still has to be to owners of the property at any time
Drury v Mcgarvie
Ancillary rights
= held reasonable for burdened proprietor to put gate up to protect livestock but as servitude owners, the couple could adapt the gate to make it easier to use
Irvine Knitters Ltd v North Ayrshire Cooperative Society
Servitudes
= only benefitted property may take benefit - cannot use the benefitted property as a bridge to neighbouring property also owned by benefited proprietor
Ruddiman v Hawthorns
Servitudes
- benefitted proprietor argued its ok to use property as bridge provided you take things onto the benefitted property 1st, do something legitimate them move it onto the neighbouring property
- court recognised that access is taken to benefited property in good faith then benefitted proprietor takes access route to do something legitimate
= held must be legitimate purpose and not a vice
Grant v Cameron
Servitudes
- authorised users of benefitted property (tenants, friends, customers) may also use the servitude
Dunlea v Cashwell
Servitudes
- deed expressed for residential use only and benefitted proprietor wanted to use it for diggers etc
= must be no increase in burden on burdened property
Carstairs v Spence
Servitudes
- where deed doesn’t stipulate:
- change in use made of the benefitted property is not in itself and increased burden on the burdened property
-the extent of the prescription is measured
by possession
Kerr v Brown
Servitudes
- in passage servitudes (e.g aqueducts), change in type of thing passing through is an increase on the burden
Hill of Rubislaw (Q Seven) ltd v Rubislaw Quarry Aberdeen Ltd
Real burdens
= It is entirely legitimate to have a real burden have commercial benefit - court commented that this in turn can be praedial
Marriott v Greenbelt Group Ltd
- Housing development sell houses off but keep number of green areas, reserved to developer and sold to greenbelt to look after
- Real burden imposed on houses in estate that had to pay to upkeep maintenance of the green areas
HELD - praedial from both points of view
Castle Street (Dumbarton) Developments Ltd v Lidl GB Ltd
- Lidl sell land with list of supermarkets it can’t be resold to ‘for as long as lidl group own property disponed’
HELD- praedial in essence but as it stated it would only be in effect while lidl were owners, wasn’t beneficial to other proprietors and so by definition wasn’t praedial
*Also referrred to
Aberdeen Varieties Ltd v James F Donald (Aberdeen Cinemas) Ltd
‘Four corners of the deed doctrine’
- burden referred to legislation but didn’t cite the relevant parts
= should have put out all relevant parts in full in burden for it to have been upheld - all info relating to burden should be contained within burden deed
Baker v Lewis
Real burdens
= Has to be material detriment for a deed to be enforceable
Kettlewell v Turning Point
= Sheriff considered evidence to suggest that val of surrounding properties would go down by 15%
= material detriment and so sufficient interest to enforce
Franklin v Lawson
= Material detriment to other owners on basis that material is opposite of immaterial
Brown v Richard
= Case suggests that where you have properties subject to the same deed they are relative properties and so you are able to enforce burdens on properties also subject to that deed
Roebuck v Edminds
Pre-emptions
= where owner sells property without offering property to benefited proprietor offside goal rule applies
Ballentyne Property Services v Lawrie
Won’t vary burdens where unreasonable to do so
PS Properties (2) Ltd v Callway Houses Ltd
When assessing how many flats are in a tenement, must look at the current state of the property
DH V SI
= Where tenement is a beneficiary of a decision not to pay a cost, their vote isn’t counted when reaching that scheme decision
Compugraphics International Ltd v Nikoulic
tenements
= pipes couldn’t be owned separately and acceded to the ownership of land but one could have a right of servitude over the pipes
Corrie v Craig
= Court granted order to allow fence to be built but only a regular fence (as opposed to what they wanted) because it would have been unfair to put unnecessary costs on their neighbour
Newton v Godfrey
Where common interest obligation not obliged with, one party can carry out work and then later recover costs
Thom v Hetherington
Common interest is a matter of degree
Anderson v Barattisanni’s
- Chip shop flute (encroachment)
= HELD that the chip shop couldn’t operate without the flute - had been 9 years and was impractical to move it to another part of building - was on wall without window so wasn’t obvious to other owners
Leonard v Lindsay & Benzie
Any encroachment is a delict. No defence that the encroachment is trivial
Duke of Beccleuch
Held to have impliedly consented to encroachment due (acquiesed)
*left it 30 years before raising an action
Strathclyde Regional Council v Persimmon Homes Ltd
= Held no consent to encroachment given because council were acting as public body when giving planning permission but in a private capacity hadn’t consented to the encroachment
More v Boyle
- pipe ran though A’s land and provided water to B. A cut pipe off.
= aemulatio vicini
Morris v Bicket
= must pass water on in same quality and quantity as you received it
Snowie v Stirling Castle
= originally sought declarator for 70 acres for privacy - reduced this to 40 = court grants 12.6
Manson v Midlothian Council
- house in penicuik
= Gate held to be unnecessary as was 20 meters from their house and they already had existing walls and fences
Tuley v Highland Council
- Held that prevention of access to particular path (because it was suffering erosion and continued use would make it worse) was for a valid reason and were otherwise allowing access
Aviemore Highland Resort Ltd
Fence existing before 2003 Act allowed
Marquess of Alisa v Monte Forte
- selling icecream to those on forshore
= held not to be recreation
Brown v Lee Constructions Ltd
Tresspass
- crane hung over their land and interdict was sought
Carruthers v Irvine
Duration of lease can be perpetual
Gbay v Edinburgh University
No rent or duration agreed but had agreed everything else
- court wouldn’t impose 1 year duration because rent hadn’t been agreed but would have had the parties agreed rent
Scottish Residential Estates Co v Henderson
Lady told she could use property until landlord needed it
= Because no clear duration agreed this was held to be a licence and not a lease
Advice Centre for Mortgages v McNicoll
Clear from precedent that right to buy was not inter naturalia of a lease and could only ever be a personal agreement between the tenant and landlord
He doubted that offside rule could be applicable as this would suggest the clause conferred a real right and it doesn’t
Gyle Shopping Centre v M&S
Leases - pro indiviso shares of land
= shop in centre had lease of unit but also held share in car park as part of their lease
Ross v Duchess of Sutherland
Inter naturalia
- discounted rent doesn’t bind successors
Tucker v Nicholson
Inter naturalia
- clause allowing tenant to be compensated for any improvements/alterations not inter naturalia
Optical Express (Gyle) Ltd v M&S
Inter naturalia
- concerned blackletter
= even if it had been included in the lease doc it wasn’t inter naturalia to bind successor landlords
Trade Development Bank (cases)
TDS had existing SS over land - landlord leases out without their approval = TSD could have leases set aside (voidable)
* Once you have your real right of lease it is a real right against SS holders and so offside goal rule applicable
Mars Pension Trustees v County Properties and Developments Ltd
= lease must make it clear they intend to exclude common law implied terms
Blair Trust Co v Gilbert
Leases
- periods of absence allowed but prison was a breach of possession
Mickel v Mccoard
- tenant who breaches obligation liable for damage sustained to property due to non-occupation
Wright v Wightman
Leases
= court can order plenishments
Cooperative Insurance Soc v Halfords
Leases
= court can order interdict to prevent displenishment
