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
