Co-Ownership (Pro Indiviso) Flashcards
General definition
More than one person desires to exercise control over a particular bit of land at the same time. Universal shares in a bit of land. Most defined in common law, some statutes though.
Ownership in order to understand the right
Stair calls it the main real right, making all other rights subordinate real rights. Ownership is unititular in Scotland ‘Only one right of ownership can be recognised at any one time’ Yet it can be shared, but it must all be under the same title.
Co-Ownership known as pro-indiviso
Same rules apply to land and moveables Murray v Johnston
Two regimes of Co-Ownership
Common Ownership - Each proprietor has a title to their undivided share which they may dispose of or burden on separate act. It transfers to their heir. Deals with all cases bar those dealt with in Joint Ownership, it is the most common. (Without special legal situation)
Joint Ownership - No separate estate only one that is invested in them pro indiviso. Cannot be disposed of or burdened by own act, and does not pass on death. Only Trusts and Unincorporated associations.
Originally the terms were used interchangeably.
Magistrates of Banff v Ruthin Castle Ltd
This case set out definitions of co-ownership.
Just because it says it’s joint ownership does not necessary mean it is
Joint Property is not held in several shares, rather on death the previous shares increase. Confined to trusts and unincorporated associations. There is no right to severe the share, nor division or sale of it either. Common Property is a larger class as individuals can severe shares. Own a share which they can then alienate or make subject of security. Held under a single title
History of Co-Ownership: Early Scots Law
Connected to feudal law trying to get Roman and Feudal to work together. Craig believed it wouldn’t work as it would breed disputes. Roman law favoured division on death, whereas Feudal favoured Eldest son. Created specific remedies for it.
Institutional writers on disputes
Bell - ‘equally entitled to uses and services derived from subject’
Erskine - ‘every inch of the ground belongs to the proprietors in diviso’
Grant v Heriot’s Trust - ‘a metaphysical right in every atom’
Rules
Communio est mater rixarum - Common ownership breeds disputes
In re communi melior est in conditio prohibensis - Position of objector is better
nemo in communione invitus detineri potest - Can’t be held against will in ownership
Rules of Unanimity
Bell - 1072 ‘Consent of all owners is requisite in management of property’ yet then stated 1077 ‘if can’t agree then majority rule’
Courts follow 1072 more Clydesdale Bank plc v Davidson
Objector in strongest position, so take silence as consent. Shaw v Black
General rule for common ownership
Need consent of all parties, only exception de minimus non curat lex (Law does not bother itself with trifles) Barkley v Scott (Name plate offence)
Necessary Repairs?
Rafique v Amin - Wanted to do work to fire escape and put in steel beams/ventilation system. Allowed fire escape as it was for common purpose
Deans v Woolfson - Fire escape burned down, then replace and it was allowed
Common law provides 3 principles for Common Ownership
1) Each Co-proprietor entitled to use of every inch of property. No upper limit, not does it have to be all can be equal shares as long as it is agreed to. Denolm’s Trs v Denolm
2) May only make ordinary use of property, no excessive benefit. Anything agreed to allowed. Bailey’s Executors v Upper Crathes Fishing Ltd
3) Can’t have excessive benefit at expense of others
Remedies?
Judicial regulation, appointment of judicial factor and order for division and/or sale of property.
Price v Watson - Appointment of judicial factor, or division and sale of property, only likely two to happen
Reid points out other ones available such as interdict (Baileys Executors)
Reid on Denolm Trs v Denolm - Co-proprietor accountable to other owners if maintaining exclusive possession
If division is not possible due to shared stairwell etc then sale will take place.
Sale is affected by -
Auction
Private Bargain
One co-owner buying out the other (Berry v Berry No, Scrimgeour v Scrimgeour Yes)
Scope for agreement
As long as it is agreed and possible, terms can be terminable.
Real Conditions come with the land
Can entire into further agreements about how the property will be used. Clydesdale bank plc v Davidson
Pro indiviso/Jurist acts
Can put in individual share, carry out act that don’t affect everything (security/transfer)
Subdivide property - Menzies v MacDonald
Can’t get a servitude over the whole property
Joint Property
Only in Trusts or unincorporated associations. Arise in Trusts if more than one Trustee. No such thing as separate right for trustees.
Unincorporated Associations - Jointly owning things in a club if leave then cease to have right in them. If join them have right in them, but can only be for moveables
