Co-ownership

Question 1

Rafique v Amin

Answer 1

1. Involved a tenement (flats) of which the outer walls were stated to be owned in common
2. The ground floor owner wanted to make alterations to put in an internal staircase
3. He wanted to put metal rods in the outer walls
4. One of the other owners objected and this objection was upheld
5. The usual rule is that the consent of all is required (all co-owners must agree)

Question 2

Deans v Woolfson

Answer 2

1. Involved an external staircase that served two properties
2. It was held that any liabilities are pro rata

Question 3

Price v Watson

Answer 3

1. One co-owner had locked the other out and was essentially preventing access
2. The other owner sought an action of ejection
3. It was held that this was not competent
4. As a co-owner, the owner had a right to be in the house (although they were breaching their responsibilities)
5. Rather, the only remedy that was available was an action for division and sale
6. This remedy allows one co-owner to insist upon the property being sold
7. The other remedy was that the owners that were dispossessed could seek to have what is known as a judicial factor put in place over the property
8. This is essentially a trustee that is appointed by the court to manage the property on behalf of other people

Question 4

Denholm’s Trs v Denholm

Answer 4

1. The restrictive approach of Price v Watson was continued in this case
2. The only remedy in this situation is the general remedy of division and sale or the appointment of a judicial factor

Question 5

Grant v Heriot’s Trust

Answer 5

1. One of the co-owners of George Square sought to grant a servitude right to a third party, allowing the third party to use George Square in certain ways
2. It was held that this was not competent
3. The servitude would have had to be granted by all of the co-owners of George Square

Question 6

Clydesdale Bank plc v Davidson

Answer 6

1. There were three co-owners
2. One of the co-owners wanted to have exclusive use of the property
3. They asked for the permission of their co-owners and tried to think of a legal way to achieve that result
4. The three owners sought to grant a lease in favour of one of the owners
5. It was held this was not competent
6. You cannot have the right of ownership and the right of lease in the same property
7. What they could do is simply create a contract between themselves that only one co-owner would benefit from the use of the property (so a personal rather than a real right)

Question 7

Menzies v Macdonald

Answer 7

1. Involved Loch Rannoch
2. It was subdivided many times so many people could enjoy its use
3. The House of Lords held that this subdivision was possible

Question 8

Upper Crathes Fishing Ltd v Bailey’s Exrs

Answer 8

1. One co-owner was seeking to grant timeshare rights in a river
2. The other owners were not happy about this and brought an action for division and sale
3. One party argued that this was a discretionary right
4. The court held that essentially the right to division and sale is absolute

Question 9

Thom v Macbeth

Answer 9

1. The law says that division is impossible in circumstances where the resulting portions will be much less valuable than the whole would have been

Question 10

Scrimgeour v Scrimgeour

Answer 10

1. This case did allow one party to buy the other out, rather than it being sold on the open market
2. In this case, however, the other parties did not object
3. It is therefore probably not good authority

Question 11

Collins v Sweeney

Answer 11

1. In this case, the court did not allow this
2. The parties can insist on the property being sold on the open market