Landownership Flashcards
What is fudalism?
The idea of feudalism is that the monarch owns all the land in the country and grants out parcels of the land to followers who then make sub-grants of land. When a feudal grant of land was made, it was divided between the superior and vassal.
This meant, until 2004, ownership of land was not absolute. It was abolished by the Abolition of Feudal Tenure etc (Scotland) Act 2000, s1.
All feudal rights have been abolished out right meaning that you are owner not vassal.
What is the extent of ownership?
Owner has right to the ground underneath and airspace above - a coelo ad centrum (from the heavens to the centre) (Brown v Lee Construction Ltd).
Exception to rule: separate tenements.
Distinguish legal separate tenements and conventional separate tenements.
A legal separate tenement is automatically owned separate from the land but a conventional separate tenement is not.
- Salmon fishings are the main type of legal separate tenement. If you buy land and salmon are not mentioned in the sale then they are NOT included (McKendrick v Wilson).
- Mineral rights are the main type of conventional separate tenement. If you buy land and minerals are not mentioned in the sale then they ARE included (Campbell v McCutcheon).
Flats in a tenement building can be owned separately from the land.
True or False?
True.
Tenements (Scotland) Act 2004, s26(1) - A tenement building is made up of a number of units which may be in separate ownership.
What are the default rules of ownership for tenement flats?
Tenements (Scotland) Act 2004, s2 & 3:
- internal and external walls
- ground underneath (known as the solum)
- roof and airspace up to its highest point
- airspace above highest point of roof
- closes, lifts, ect
- adjacent ground
What are an owner’s rights to possession?
The owner generally has an exclusive right to possession of every part of the land and the right to exclude people from the land.
The right will be infringed if without permission or lawful right another person interferes with or encroaches on the right.
What does the law say about self-help remedies regarding tresspassing?
A certain degree of force to end trespass is allowed but it cannot go beyond minimum requirement.
Wood v North British Railway Company - Concerned with an incident at Waverley Train Station. W, a taxi driver, drove to station with passenger and was given permission to enter the station to drop off passengers but were not allowed to pick up new passengers. W refused to leave after attempting to pick up a passenger. N staff physically move W to a police station and claims assault. He loses assault claim.
What is the standard remedy for tresspass?
Interdict, but it is a discretionary remedy and so the court can refuse an interdict. You must prove that the interdict is appropriate, not just that there is a trespasser.
Winans v Macrae - Interdict refused on the basis he didn’t meet two requirements.
- The court has to be satisfied that the act is serious enough to warrant intervention. It should not be trivial.
- There must be repetition.
Can victims of trespass be awarded compensation?
Normally, damages are not available even if the trespasser benefits financially from the land.
For compensation to be awarded you must evidence you have experienced loss (Graham v Duke of Hamilton - Gaining from the land is not grounds for compensation as there was no loss.)
Explain the remedies of encroachment.
The court may order the removal of an encroachment, but this is discretionary.
Jack v Begg - Two neighbouring plots of land in Edinburgh. The owner of one plot of land began building and the gable straddled the land of land two. Owner of land two asked for demolition as a result.
Held: Court held they were entitled to order demolition and it may be appropriate in some circumstances, it was not appropriate in the case.
The court held they would evaluate whether;
- Bone fide belief they did not intent to encroach.
- How proportionate demolition would be.
Instead, the court allowed the wall to stay under the guide that owner two could also build on the wall.
What access rights does the Land Reform (Scotland) Act 2003 provide?
s1 - Everyone has the right to be on land for recreational or educational purposes or to cross land including those carried on commercially.
s2 - This right is to be exercised “responsibly” (Tuley v Highland Council - As long as the restriction of access by the owner was an act of responsible land management, that was acceptable.).
s6 - Some land is excluded; “in relation to a house…sufficient adjacent land to enable persons living there to have reasonable measures of privacy” (Gloag v Perth and Kinross Council).
Some forms of access are excluded by s9 (motor vehicle, ect.).
Prescription and Limitation (Scotland) Act 1973, s3(3), state about public rights of way?
- Public right of way
- possessed by the public for a continuous period of twenty years openly, peaceably and without judicial interruption
- the right of way as so possessed shall be exempt from challenge.
Rights of way are right of passage held by public at large.
What are the requirements of public rights of way?
- Fixed route (Rhins District Committee v Cuninghame - Contours of the land may dictate route)
- Between two public places. It must also be a place of human habitation and resorts (Love-Lee v Cameron)
- Adverse and uninterrupted use for whole length by public for 20 years (Rhins District Committee v Cuninghame)
- Extent of right depends on possession (if it was of use of pedestrians it will be a right for pedestrians, if it was of use of cars it will be a right for cars, ect.)
What public rights exist over tidal waters?
Navigation and white fishing (fishing for anything other than salmon, oysters, muscles), recreation.
What public rights exist over non-tidal waters?
No implied rights, but right of navigation can be acquired by 40 years’ use. Once the right is aquired, it is not lost by non-use. Once navigation is established, it is open to all acts of navigation (Wills’ Trs v Cairngorm Canoeing and Sailing School Ltd).