Land Law Flashcards
What are the stages of a typical transaction
1) Client circumstances
2) Funds
3) Finding the house
4) Instructing an offer
5) Qualified acceptance and concluding the bargain
6) Post-conclusion of the brgain
7) Title examination
8) Funding
9) Settlement and purchase
10) Purchaser moves in
11) Land registration
Walker v Whitwell
The act of witnessing should follow immediately upon the act of signing so that they form one continuous process
Cunningham v Spence
A witness cannot be blind
AIB Finance v Bank of Scotland
A floating charge creates a personal right on the part of the creditor when the deed is delivered
Mearns v Massie
At common law, negative servitudes could be created by delivery of an unrecorded deed
Roger’s Builders v Fawdry
Offside goals rule - this means that in certain circumstances, a purported alienation my be voidable and any acquisition of a real right following thereon reducible at the instance of the party in whose favour an obligation not to alienate had been granted
Sharp v Thomson
At one stage there was a school of thought said the delivery of a disposition may confer on the grantee a beneficial interest which protected the grantee in the period between purchase and the recording of the deed.
However Burnett’s Trs v Grainger overruled this.
Proposed solution by the Scottish Law Commission - advanced notices
Nisbet v Aikman
Irritantcy is a remedy which may be available to the landlord in a lease where it is implied by law in relation to non-payment of rent by a tenant
McIntosh v Alma
A contract can be concluded by fax even if no hard copy letters are sent- This is because there is a properly executed original in existence and the terms of the original have been communicated to the other party
Heiton v Waverley Hydropathic
A lack of agreement as to a real burden/negative servitude led to the court to conclude that there was a lack of consensus in idem as to the entire deal even though the three p’s (parties, price and property) had been agreed on
Grant v Peter G Gauld
The contract to sell and purchase heritable property should contain an accurate description of property to be sold and purchased. If it does not there can be no contract at all.
In this case the offer began with the words:-“We hereby offer to purchase from you the ground presently being quarried by our client and the surroundings thereto extending to twelve acres … and that on the following terms and conditions, namely: 1) The actual boundaries will be agreed between you and our client.”
The court held that there was no contract as clause 1) admitted on the face of the contract that there was no agreement yet as to the boundaries. Even without clause 1) the court held the description would have been too vague and could not be cured by extrinsic evidence.
Gordon or Jones v Kippen Campbell and Burt
In this case a solicitor received a plan that was completely wrong. The client tried to blame the solicitor for negligence. Difficulties can arise id the client is left alone to deal with the plan but it must be remembered that it is for the client, not the solicitor to determine what he or she wants to purchase
Callender v Midlothian District Council
Where a servitude right is referred to in missives it will not require to be specified in such detail as is required in the deed where by the servitude is created. All that is required in missives is that a reasonable man should be able to identify what is contracted for. In these cases, for example, it is not possible to identify the route of the existing road or the existing drains within the four corners of the missives and extrinsic evidence is required.
— standard of accuracy is what the reasonable man would expect
Campbell v McCutcheon
From the top of the sky to the centre of the earth case.
On the basis of the maxim asserting ownership ‘a caelo usque ad centrum’ the purchaser will be entitled to the land and minerals unless these are specifically excluded.
Unless the seller has expressly excluded the mineral rights, the purchaser will be entitled to resile if he subsequently finds out that the seller has no title to the minerals.
a caelo usque ad centrum
from heaven all the way to the centre of the earth
Hopkinson v Williams
Missives are entered into by the solicitors on behalf of their clients. The solicitors act as the agents of the clients in relation to the contract. The authority of solicitor may be granted orally. In this regard it is important that the solicitor properly identifies his client.
In this case solicitors took instructions from the sister of the owner of heritable property. The owner thereafter repudiated the bargain and claimed that he had not instructed the solicitors. A proof before answer was allowed to determine whether this was true.
Corbett v Robertson
In a contract of sale and purchase of heritable property there is an implied provision that the content of disposition to be granted by the seller shall be in the “usual form”.
Armia v Daejan Development Ltd
A property in the High Street of Kirkcaldy which had been purchased for redevelopment was found to be subject to a servitude of access affecting the frontage of the street. This was held to breach the seller’s obligation to furnish a good title. In some other situations, however, a servitude of access may not breach the implied obligation. For example, where a seller wishes to sell a thousand hectare farm in the Highlands and a servitude of access affects one corner of one field it may be neither unusual nor unduly onerous
It was held in this case that in the circumstances the existence of the servitude breached the seller’s obligation to furnish good title and it was an unusual and onerous burden
Sloane’s Dairies Ltd v Glasgow Corporation
A clause in the missives should deal with the situation of risk of destruction of the property after conclusion of missives and before settlement. If nothing is said in the missives the risk will fall on the purchaser. This rule has the result that a purchaser may be obliged to buy a house which has burned to the ground even though this was not the purchaser’s fault.
IF NOTHING IS SAID IN THE MISSIVES THE RISK WILL FALL ON THE PURCHASER
Brands Trs v Brands Trs
Where a moveable item is attached to a heritage, it is then owned by the owner of the heritage to which it is attached - accession
Shetland Islands Council v BP Petroleum
Accession operates independently of the will of the parties and cannot be contracted out of
Fife Assessor v Hodgekins
Functional subordination - storage heaters are functionally subordinate and are therefore fixtures
Christie v Smiths Executrix
Physical attachment - Sheer mass of the accessory can mean that an object is regarded as qualifying as a fixture
Scottish Discount v Blin
Attachment more than just temporary- where room has been specially adapted for an item of machinery, such as by the installation of special foundations, this may indicate that the machinery is a fixture
three objective conditions for accession to take place (fixtures v fittings)
1) physical attachment
2) function subordination
3) attachment more than temporary
Scottish Wholefoods Collective Warehouse Ltd v Raye Investments
A clause in a lease gave an option for tenants to purchase the landlords interest at the current market price at the time, and the price shall be mutually agreed by the parties.
Clause held to be enforceable on the basis that if the parties failed to agree the price, them the court would determine it
NJ and J MacFarlane (Developments) LTD v MacSween’s Trs
It is competent for a contract to provide that the purchase price shall be determined by an arbiter
Roger v Paton
It is not essential to state the date of entry. If the missives do not do this, the law will imply a date of entry as at a reasonable time after the conclusion of the missives
Runciman v Border’s Regional Council
It is possible that a local authority will be liable if the property enquiry certificate is innaccurate
Zebmoon Ltd v Akinbrook Investment Developments LTD
The use of the term ‘it is an essential condition of this offer’ was held to create a suspensive condition
Imry Property Holdings Ltd v Glasgow YMCA
The right to waive a suspensive condition only applies if it has been expressly contracted for or if the clause is only in the interest of the party who wishes to waive it
Pena v Ray
Time limits can turn into ‘frankenstein’ clauses as they may prevent the parties from enforcing clauses they wish to enforce and leave them with no remedy
Grant v Ullah
Where the other party accepts the repudition, the contract will end and the innocent party can claim damages
Toynar Ltd v R & A Properties (Fife) Ltd
Care must be taken as to the wording used in provision re material breach-
In this case there was some doubt regarding a provision that stated that when the purchasers failed to pay the purchase price, ‘the sellers have to option to immediately thereafter resile’
Unclear whether it meant that the right to resile had to be exercised immediately after the failure to pay or whether the seller would have the right to resile immediately on failure to pay, but could exercise this at any time after.
The judge accepted the latter interpretation
Roger’s Builder’s v Fawdry (UP)
Established the ultimatum procedure. This is used where a contract does not expressly provide for recission.
This works as follows
1) the breach occurs
2) the defaulting party is given a reasonable time to remedy the breach in writing
3) After expiry of the reasonable time, the aggrieved party serves an ultimatum with a short expiry date
4) If the performance is still not tended, the aggrieved party may rescind
Lloyds Bank v Bauld
Non-payment of a purchase price.
Court approved a timescale for an ultimatum of the 13th of Jan to the 31st Jan
McLennan v Warner & Co.
Where the delay is caused by a missing document such as a discharge of a servitude, a reasonable time (for the ultimatum procedure) would be calculated by how long it should take to obtain it
James Howden and Co v Taylor Woodrow Property Ltd
The argument that a party has impliedly waived his right to rescind merely by delaying rescission usually fails
Lloyds Bank v Bamberger
The interest on the price of the house is recoverable only if there is a special provision in the missives
Bowie v Semple’s Executors
The executors were selling a property but had not yet got confirmation.
They could not therefore force the purchaser to buy because they could not give good and marketable title
Lothian and Border’s Farmers Ltd v McCutcheon
Case concerned warrandice clauses. It was held that there was not an obligation to make sure the whole property was free from leases.
To get around this solicitors use vacant possession clauses. Otherwise the test is 1) is the lease of an unusually long duration and 2) whether the purchaser should have expected the leases existence
Brown v McLean
The purchaser is entitled to ascertain that the title is good beyond rational doubt
Orr v Mitchell
If a principle clause is ambiguous then the remainder of the deed may be referred to for the purposes of clarifying the ambiguity
Stewart v Lord Philips*
What does vacant possession actually mean? Individual bought fields, neighbour’s cattle was grazing on 1/3. Neighbour claimed he had an agricultural tenancy. Potentially a disaster. In this case the claim was unfounded but who would be responsible for paying the neighbour off? Can you sue the seller for not giving vacant possession on entry - in this case the answer was yes because the seller was in breach
Scottish Flavour v Watson
Furniture and rubbish not moved out of a property. In this case the degree of rubbish was too trivial to be in breach of the clause granting vacant possession, however there is a case to say that if the rubbish was to a greater degree then there might be a breach
Winston v Patrick
case that stated the disposition superseded the missives on delivery. No longer applies per the contracts (scotland) act 1972, s.2
