Head 13: Original Acquisition Flashcards
What is original acquisition? How does it compare to derivative acquisition?
Acquisition without reference to the previous ownership of another person.
Compare derivative acquisition - the title is only as good as that of the previous owner.
What are the three cases of original acquisition?
⁃ 1) New property [e.g. manufactured by the person who becomes its owner.]
⁃ 2) Existing but unowned property
⁃ 3) Existing and owned property
[For some reason the law decides to take the ownership away from the first owner and give it to somebody else - prescription is an example. Registration of title under the Land Registration (S) Act 1979 is an example (at least in the technical sense) because of the ‘midas touch’ of the Keeper - you become owner even if the seller is not owner.]
What is occupatio?
Occupatio / occupancy (English term) is the acquisition of an ownerless thing by seizing possession of it and intending to become owner. Quod nullius est fit occupantis.
The policy behind this doctrine is of ‘finders keepers’. The main examples are shells, pebbles, and wild animals etc. The exception is wild animals, if they regain liberty they become unowned once more.
How is occupatio limited?
Limited by -
. (1) Paucity of ownerless property.
. (2) Historically, the feudal system.
. (3) Rule that “abandoned” property belongs to the Crown. Quod nullius est fit domini regis.
When is property abandoned?
Erskine states that occupatio applies in Scotland for movable property - not land.
The law makes an important distinction between property that has never had an owner[ E.g. wild animals etc.] and property that has had an owner but ownership has become lost[ Abandoned property.]
Two things are required to abandon ownership:
⁃ 1. Physical act [Usually throwing the thing away.]
⁃ 2. With the intention [So there is a difference between leaving an object with somebody for safekeeping with the intention that you’ll return to collect it and throwing something in a bin with the intention that you’ll never see the thing again.] of abandoning it.
Is ‘lost property’ the same as abandoned property?
If something is merely lost then it remains yours. However if you abandon something then it is no longer yours.
Is abandoned property available for occupatio?
Abandoned property is not available for occupatio because under Scots law, property in this category automatically belongs to the Crown.
How does negative prescription apply to corporeal moveables?
Negative prescription applies to ownership of corporeal moveables. So under s 8 of the Prescription and Limitation (S) Act 1973 if ownership is not exercised for a period of 20 years then ownership is lost. So after 20 years any question of whether abandonment has taken place is made irrelevant by prescription.
What happened in the case of Lord Advocate v University of Aberdeen & Budge 1963?
A team from Aberdeen university were excavating when they came across treasure from the middle ages. The question was whose property was this? Three possibilities: 1) crown 2) university who had found it 3) owner of the land in which the treasure was found. It was held there is no separate law of treasure trove in Scotland. Therefore the property presumably had an owner at one time but ownership has now been abandoned. Therefore the property belongs to the Crown.
What happened in the case of Mackenzie v Maclean 1981?
The hotel threw out the bad cans. A crowd gathered and removed the cans. Some people paid the hotel for the cans. The hotel were then charged with ‘theft’ on the basis that when the cans were thrown into the skip they were abandoned by the hotel so they became Crown property.
Not that important - just shows that abandoned property goes to the Crown.
What is the exception to the rule for wild animals?
The normal rule is that if you capture something then lose it (abandon it) it will fall to the Crown and thus it not be available for occupatio.
⁃ However there is an exception in relation to wild animals - if a wild animal is caught then escapes the rule is that it does not fall to the Crown but is available once again for occupatio.
What happened in the case of Valentine v Kennedy 1985 ?
This concerned fish farming of rainbow trout which was reared in a fish farm then bought by somebody in order to stock a loch. This loch was known as a ‘stank’ (a loch where all the natural outlets have been sealed so the water cannot escape). However some rainbow trout did manage to escape into a neighbouring burn and were fished by the accused who were on the land unlawfully.
The police found them and they were accused of theft. The question was whether they had committed theft at all because if the trout were wild animals then once they escaped and regained their natural liberty they are available for occupatio.
The Sheriff held that theft had been committed on the basis that since the fish had not got very far and because rainbow trout are not indigenous to Scotland they could readily be identified as the same trout that had been inside the loch and therefore the trout still belonged to the owner of the loch - thus they were not wild animals and had therefore been stolen.
What are the statutory interventions?
1) It is a criminal offence to “sort over or disturb” dustbins (s 60 of the Environmental protection Act 1990)
2) Under the Civil Government (S) Act 1982 Part VI there is a set of rules about what to do if you find lost or abandoned property in the street.
⁃ If you come across lost or abandoned property, you are not under an obligation to pick it up. But if you do pick it up you are under an obligation to surrender it to the police without unreasonable delay. On receipt the police must take reasonable steps to try to ascertain the owner. After two months the police have the possibility of selling[ It is expressly provided that the buyer would acquire good title - because of the nemo plus rule they wouldn’t normally acquire good title.] the property or of giving it to the finder.
⁃ If the real owner turns up within a year then they have certain rights:
⁃ if it has been given to the finder then you can take it back
⁃ if it has been sold you can recover the net proceeds of sale (provided they exceed £100).
When does accessio occur?
Whenever two pieces of corporeal property become joined together in such a way that one (the accessory) is considered to have become subsumed in the other (the principal).
What are the three requirements of accessio?
Erskine describes three essential elements -
(1) Physical Union (pieces of property must be attached)
(2) Functional Subordination (the accessory must be subordinate to the principal)
(3) Permanency
The doctrine of accession operates in a way which is entirely mechanical[ Because of certain physical facts.] and entirely without reference to the intention of the parties. Equally irrelevant are doctrines like good faith or ownership
[So someone could steal property and join it with some of his property to bring about accession - the fact that the person doing the joining acted in bad faith or was a thief is completely irrelevant.].
What happened in the case of Shetland Islands Council v BP Petroleum Development Ltd 1990?
concerned an oil field in Shetland. BP wanted to build an oil refinery there. They negotiated a preliminary agreement with Shetland Island Council and proceeded to build the oil refinery. After some years they tried to formalise the documents - one of the issues was how much rent should be paid because the land was not BP’s. The further question was on what basis should the rent be calculated - should it be calculated (1) on the basis of an empty piece of land (this is what BP argued because when they moved in it was empty) or (2) that the moment that BP built the refinery on the council’s land it became the property of the council by accession, therefore the council was leasing out not just an empty plot of land, they were actually leasing out an oil refinery and therefore the rent should be much higher. One of the arguments for BP was that one of the provisions between the parties was capable of meaning that the oil refinery was to remain the property of BP.
It was held that even if the clause could be read in such a way this was completely irrelevant because parties intentions are irrelevant in matters of accession. Therefore the refinery became the property of the council and the council were thus renting out a piece of land with an oil refinery on it rather than an empty piece of land.
What are the three legal effects of accession?
Broadly speaking there are 3 effects:
1) Accessory becomes part of the principal[ If you sell something then the usual rule is that what you receive is the thing including anything which is part of the thing by accession.
Under contract law you are often given extra things (e.g. if you sell a pen then you would probably get the lid by an implied term of the contract - but not by accession because the lid has not acceded to the pen). So a contract can give you more than the law of accession would.]
2) Conversion: where accessory is moveable and the principal is heritable, the accessary become heritable
3) Extinction of existing title to accessory - there is original acquisition to the property and the owner of the accessory loses title. If the owner of the accessory title did not con set, they are left with a compensation claim. If A then removes the accessory from the property, they still belong to B because accession has operated.
But note: For effect (1) the potential importance of contract. For effect (2) the rule of constructive fixtures.
What happens if accession operates then later on the parts are separated?
The accessory becomes a piece of property in its own right and there may be reconversion of the accessory to being moveable. However (3) is NOT reversed[ There is one exception to this!] - the owner of the accessory does not regain ownership.
- For effect (2), there is a rule relating to ‘constructive fixtures’. These are moveable property which are considered to be ‘constructively heritable’, despite not actually acceding to the heritable property. The primary example of this is keys.
Does three effects mean three separate rules?
Up until the case of Brand’s Trs v Brand’s Trs (1874), the fact that there were three separate effects meant there were three separate sets of criteria for accession. In particular the law was very reluctant to admit the third effect - in other words if the facts were such that the result of the case would be or might be a change in ownership, the law tended to apply a more strict set of rules.
What happened in the case of Brand’s Trs v Brand’s Trs (1874)?
In this case itself the tenant had a 19 year lease of land. The tenant started making improvements to the land. The courts had been very reluctant to say that accession had taken place, because if it did take place the result would be that the tenant would lose ownership. However in this case the HL held that there is a unitary law of accession whatever the facts[So the rules apply in the same way in all cases.].
They held that the correct was to solve the landlord - tenant situation was to say that accession does take place but the tenant will have a right, in some circumstances, to remove the thing which has acceded
What is a fixture?
Typical example is a building site - an empty piece of land belonging to another and someone else starts building on it. When they start building, the moveable materials become part of the land by accession. Then when you start fitting out the interior, these things too become part of the building by accession and thus part of land by accession.
What is the difference between fixtures and fittings
Fixtures - Moveable item inside a building which does accede.
Wallpaper would be a fixture.
Fittings - Moveable item inside a building which DOES NOT accede.
A loose carpet, furniture etc.
The former accede, the latter do not.
