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Scottish Property Law > Exam Prep > Flashcards

Exam Prep Flashcards

To prepare for exam.

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1
Q

What is a real right?

A

Real rights are rights in a thing.

EG - Bob has a real right of ownership in a farm.

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2
Q

What is a personal right?

A

Personal rights are rights against another person.

EG - Bank of Scotland has a personal right of a standard security against Bob.

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3
Q

What is the principle real right

A

Ownership

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4
Q

What are subordinate real rights?

A

Subordinate real rights are always held by non-owner of that thing.

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5
Q

What does sequestrated mean?

A

Bankrupt

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6
Q

What does standard security mean?

A

Mortgage.

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7
Q

If there is a competition between real rights, what rule must you apply?

A

Prior tempore ptoior jure.

English: earlier by time, stronger by right.

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8
Q

An owner of a video game throws the game away. Who is now the owner?

A

The crown.

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9
Q

How can unowned things become owned?

A

Through occupatio.

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10
Q

What is a juristic person?

A

a human being (natural person) or a group of human beings, a corporation, a partnership, an estate, or other legal entity (artificial person or juristic person) recognised by law as having rights and duties.

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11
Q

What are the facts of the case of McKenzie v Maclean 1981?

A

Locals were stealing alcohol out of a skip. They were prosecuted successfully at a later date.

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12
Q

What does the case of McKenzie v Maclean 1981 show?

A

That abandoned property is property of the crown.

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13
Q

Is lost property ownerless?

A

No, it remains property of the original owner.

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14
Q

How long before lost property becomes property of the crown?

A

20 years.

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15
Q

What is a bona vacantia rule?

A

The expression bona vacantia means ownerless goods. In Scots law, ownerless goods fall to the Crown, whose representative in Scotland is the QLTR.

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16
Q

What is original acquisition of ownership?

A

Original acquisition of ownership is where the right of ownership is acquired by some legal process that gives the right of ownership to the beneficiary of that process, regardless of consent other than that of the acquirer.

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17
Q

What is derivative acquisition of ownership?

A

The right of ownership is acquired from the previous owner by the voluntary act of the owner.

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18
Q

What is an example of derivative acquisition of ownership?

A

Buying a loaf of bread.

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19
Q

What are the requirements for prescription?

A

Capacity, transferability and specificity.

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20
Q

What is transferability and specificity?

A

Transferability means can the right be transferred (even if wrongly) and specificity means only what can be identified can be transferred.

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21
Q

What is the publicity principle?

A

Transfer means there needs to be mutual consent AND an external or overt act.

IE for land the external act is a registered deed.

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22
Q

What does the case of Johnstown’s TR v Baird (2007) show?

A

Disposition needs to be registered in the Land Register.

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23
Q

What happened in the case of Johnstone’s TR v Baird (2007)?

A

Property was purchased in one person’s name however parties involved agreed that the property shall be co-owned. Only one name in Land Register though.

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24
Q

What happens when you AGREE to become owner of a property but you don’t receive a disposition?

A

You acquire a personal right (IE against a person) but not a real right (IE against the world) and you don’t become owner of the property.
OVERT ACT NEEDED!!

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25
Q

What are the 3 levels of warrandice?

A

(A) Simple
(B) Fact and Deed
(C) Absolute

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26
Q

What is simple warrandice?

A

Granter guarantees only that he or she will not grant any subsequent deed that could prejudice the deed now being granted.

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27
Q

What is Fact and Deed warrandice?

A

Granter guarantees the grantee’s title against any you’re or past act by the granter.

28
Q

What is absolute warrandice?

A

Granter guarantees that the granter will acquire ownership and the title will be unaffected by any encumbrances

29
Q

What does the case of Rodgers (Builder) Ltd v Fawdry show?

A

Offside goal: Transaction can be rendered voidable through the granter’s bad faith; subject to conditions.

30
Q

What are potential remedies for the offside goal?

A

(1) Grantee (purchaser) can sue for breach of contract.

(2) Reduce the sale.

31
Q

What are conditions for the offside goal to apply?

A

(A) Prior personal right needed between A-B
(B) Transfer from A-C in breach of the A-B obligation
(C) C has knowledge of the obligation owed to B OR C is a donne
(D) Must be a voluntary act
(E) Must be a prior personal right.

32
Q

What is accretion?

A

Accretion is when a grant from a non-owner to another can be retrospectively validated if non-owner subsequently gains title.

33
Q

Give an example of accretion.

A
  • Purple holds void title.
  • Purple transfers title to Yellow.
  • Purple later acquires true title.
  • Title automatically goes to Yellow.
34
Q

What’s needed to acquire ownership of heritable property?

A

1) Contract
2) Settlement (delivery of disposition)
3) Registration (of disposition)

35
Q

What is the gap period?

A

The gap period exists between settlement and registration. Granter is at risk - paid the price but no real right (yet).

36
Q

What can be done to protect the gap period?

A

Advance notice.

37
Q

What’s the difference between derivative and original acquisition of ownership?

A

Derivative acquisition is when title is passed from Person A to Person B.

Original acquisition is when Person A acquires a brand new title.

38
Q

What is occupancy?

A

Where something moveable is not already owned it can be acquired by occupancy. EG pebbles, running water and wild animals.

39
Q

Can occupancy take place more than once?

A

No with an exception of wild animals, which itself has an exception of farmed fish.

40
Q

What does the case of Valentine v Kennedy 1985 show?

A

Case shoes that the exception of wild animals being able to go through occupancy twice doesn’t apply to farmed fish, on the basis that they are never truly wild

41
Q

What is accession?

A

Takes place when two pieces of corporeal property becomes joined in such a way to have become subsumed into the other (IE a window frame accedes to the house and so to the land).

42
Q

What are the three requirements of accession?

A

1) Physical attachment (Stronger the attachment, stronger the accession)
2) Functional subordination. Accessory must be subordinate to the principal (Like a entry phone system to a property)
3) Permanency. The more permanent the attachment the more likelihood there is of accession (Compare cinema seats compared to seats fixed to a floor for one night of boxing.

43
Q

What are the effects of accession?

A

(A) Accessory becomes part of the principa (IE rights created in respect of the principal automatically affect the accessory)
(B) Conversion: Occures when accessory is moveable and the principal is heritable (IE bricks are born moveable but become heritable on being used to build a house)
(C) Existing title to the accessory is extinguished: Where it and the principal have different owners the result is to give the owner of the principal an original title to the accessory.

44
Q

What is specification?

A

Manufacture of a new thing with materials belonging to another; grapes into wine, wood into a boat.

45
Q

What does the case of Wylie & Lochead v Mitchell (1870) show?

A

Refer later.

46
Q

What happens if there is no agreement on who will own new thing?

A

Depends whether the process is irreversible. If so, maker probably becomes owner. maker need not be in good faith to become owner.

47
Q

What happens to the prior owner of materials when specification occurs?

A

The prior owner would get compensation for use of materials.

48
Q

What is confusion and commixtion in regards to specification?

A

Confusion is a mixture of liquids and commixtion is a mixture of solids. In both cases for specification, there must be a mixture which cannot be separated. (IE common property with pro-indiviso shares).

49
Q

What are the two types of co-ownership?

A

Ownership in common property and joint ownership (Trust property and unincorporated associations)

50
Q

What are the 3 principles of possession?

A

(1) “Every inch” principle - each co-owner has a right to make use of “every inch”
(2) “Ordinary uses” principle - (Carmichael v Simpsons) - only “ordinary use is permitted.
(3) “No excessive benefit” - IE cannot assume exclusive possession of part or all of property without consent of other co-owners

51
Q

What does the case of Carmichael v Simpsons show?

A

That in co-ownership, only “ordinary use” is permitted.

52
Q

What does the case of Rafique v Amin show?

A

That repairs and alterations require unanimous agreement.

53
Q

What does the case of Deans v Woolfson show?

A

That there is an exception for necessary repairs.

54
Q

What does the case of Barkley v Scott show?

A

That minimal alterations may be lawful without the consent of others (eg affixing a brass name plate).

55
Q

Can a co-owner transfer his/her share or grant a subordinate real right?

A

A co-owner can without the consent of others transfer his/her share or grant a subordinate real right if the share can be dealt with separately from the other shares. Otherwise the answer is no.

56
Q

What is the quote regarding co-ownership from the case of Baileys Exr v Upper Crathes Fishing Ltd (1987)?

A

“The successful operation of a pro indiviso ownership of property will depend upon mutual compatibility, goodwill and understanding.”

57
Q

What case does the following quote originate from:
“The successful operation of a pro indiviso ownership of property will depend upon mutual compatibility, goodwill and understanding.”

A

Baileys Exr v Upper Crathes Fishing Ltd (1987)

58
Q

What are the two remedies available when there is termination of ownership in common?

A

Physical division or sale.

59
Q

What is the preferred remedy when termination of ownership in common takes place?

A

Presumption is in favour of division but a sale will be ordered where division is not reasonably practicable (In practice a sale is normally ordered).

60
Q

There are exceptions to divisions and sale when termination of ownership in common takes place. What are they?

A

(1) The right is excluded where the property is “A thing of common and indispensable use, such as a staircase”
(2) There are special rules for spouses and civil partners.
(3) Special rules for co-owners who are sequestrated
(4) If a co-owner contracts out of the right to raise an action, that is effective, but would not bind a singular successor.

61
Q

What are the two accepted cases of joint ownership?

A

Trusts and unincorporated associations.

62
Q

Does everyone in a trust possess a full right?

A

Yes, there can be no division or sale/

63
Q

In unincorporated associations, are assets the joint property of members?

A

Yes, eg in a chess club everyone has joint property of the pieces.

64
Q

What happens if a member leaves or dies?

A

Then they automatically cease to be a joint owner of the club’s assets so long as it’s moveable property.

66
Q

What is assignation?

A

Transfer of incorporeal property.

Scottish Property Law (5 decks)

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