Common ownership And Tenements

Question 1

Common ownership

Answer 1

Two or more people sharing right of ownership
Share assumed to be equal (not physical division but right to equal use of every inch of the whole property- Erskine)
Only ordinary use is permitted (Carmichael v Simpson)
One co-owner can’t take excessive benefit at the expense of others
Agreement to repairs or alterations must be unanimous unless emergency repair. (Rafique v Amin). If agreement isn’t an option then division and sale. (Morrison v Kirk)
No one can be forced to remain in co-ownership “nemo compellitur invitus detineri”
Court can’t refuse action of division or sale (Upper Crathes v Baileys Exrs)
TENEMENTS ARENT COMMON OWNERSHIP

Question 2

Rafique v amin

Answer 2

With common ownership, repairs or alterations must be unanimous unless it’s an emergency repair.

Note that tenements aren’t common ownership and are governed by separate rules

Question 3

Carmichael v Simpson

Answer 3

With common ownership only ordinary use is permitted

Question 4

Morrison v Kirk

Answer 4

Common owner has absolute common law right to insist on action of division or sale
If division is impractical then the whole property can be sold and the proceeds split

Question 5

Erskine on common ownership

Answer 5

Common owners entitled to use “every inch” of property, not a pro-indiviso share

Question 6

Upper CRATHES v Baileys Exrs

Answer 6

The court (subject to one exception) has no discretion to refuse action of division or sale

Question 7

Nemo compellitur invitus detineri

Answer 7

No one will be forced to remain in common ownership