leases, rights in security Flashcards
what is a lease?
the owner of land grants someone else the right to use and possess a piece of land in exchange for rent
4 conditions to be a lease?
- must be heritable property
- must have 2 contractual parties
- there must be a period/duration; law generally infers 1 year if tenant has taken possession
- must be some form of periodical payment
gray v university of edinburgh:
if the tenant has entered into possession (or agreed to) then one year lease will be implied
mann v houston:
payments for lease must be periodical and not a lump sum
what is a ‘real lease’?
leases are personal rights until made real;
-must register under Leases Act 1449 (short), or Registration of Leases (S) Act 1857 (long) to make it into a real lease
implications of a real lease:
- tenants right to possession protected against singular successors of landlord
- new landlord will be bound by fundamental terms of lease
- offside goals rule - tenant can have standard security reduced if the B2 is in bad faith
mars pension trs case:
to exclude the application of implied terms, there must be clear contrary provision in the lease
main implied terms of a lease: (5)
- possession - tenant must be in possession and use property, landlord must not interfere
- plenishings - landlords hypothec - (tenant)
- rent; tenant obligated to pay rent under lease, including as adjusted by rent clauses
- purposes of let (landlord, reasonably fit for purpose)
- state of property (landlord liable)
wright v wightman:
the tenant must plenish property sufficiently to provide security for payment of rent (landlord hypothec)
glebe sugar refining co cv paterson:
landlord obliged to ensure property is assumed reasonable by tenant - does not have to be perfect
the landlord is not liable for damage caused by an act of god (damnum fatale):
little cumbrae estates v sialnd of little cumbrae (storm)
general remedies for parties: (5)
- specific implement - sufficiently clear or precise
- damages (standard)
- action for payment
- rescission - in face of material breach
- retention - suspend performance until action completed (self-help)
what is the landlords hypothec?
the rights in security over the goods brought into the property by the tenant, for rent - restricted to commercial leases
can the lease by assigned by both landlord and tenant?
yes: by landlord easy - no consent required
by tenant: yes with 2 restrictions:
-alienation clause (expressly restricting transfer)
-delectus personae (if lease is silent about restriction)
how can a lease be terminated? (7)
- by end date (notice by one of the parties is required)
- tacit relocation (if no notice given, lease continues by implied re-lease
- recission
- break clause (agreement that either party can terminate early at outset of lease)
- deed of renunciation (made later in the lease)
- frustration
- death of tenant where lease cannot be transferred
examples of frustration:
- tay salmon fisheries v speedie
total destruction, partial destriction (house inhabitable), or introduction of new legislation - e.g. Tay Salmon Fisheries Co v Speedie - salmon fishing ade impossible are area designated made a firing range
notice by one joint tenant is enough to prevent tacit relocation: case
smith v grayton estates
signet group case:
notice needs to be valid and formal, mere action not enough to end lease
what does it mean if the loan is secured on the property?
if a occupier does not keep up with repayments to the lender (bank), the bank can sell their home
what is the Gloag and Irvine definition of a right in security:
‘any right which a creditor may hold for ensuring payment or satisfaction of his debt, in distinction from and in addition to his right of action and execution against the debtor’
how to make a security real?
- publicity principle required to warn third parties hence securities have to be registered in LR or SR
- additional requirements for companies (register at Companies House within 21 days of creation
two types of real security:
voluntary (requires consent of owner of property) and involuntary
examples of voluntary securities:
pledge (corporeal moveables e.g. pawnbrokers) floating charge (company property) standard security (heritable property)
examples of involuntary securities:
- tacit securities -those arising by operation of law (lien and landlords hypothec)
- charging orders - securities constituted by public bodies over heritable property of a person who owes them money
what is lien?
a real right to retain property (held as security for payment) until the discharge of an obligation e.g. a jeweller holding onto a watch until the repair bill is paid (akin to pledge)
what is special lien?
(more specific)
arising in contractual obligations (mutual), and unjustified enrichment
e.g. the seller has lien over particular piece until the amount is due and paid
mckichen v muir:
innkeeper case, where family attended ball and refused to pay - therefore keeper retained their clothes
which act enables public access rights over private land?
land reform (s) act 2003; also directs us to Scottish Outdoor Access code (guidance, although some sections have been approved by court)
2 purposes to be on land as in the Act?
- recreational purpose (examples given in SOAC para 2.7)
2. relevant educational activity
gloag v perth and kinross district council:
- criticised approach in the Code (allowing access rights in less intensively managed parts of owner land)
- well known businesswoman Mrs G obtained declarator that 14.5 acres of her estate were exempt from access rights, for the need to protect her privacy
snowie v stirling council:
counters gloag; tried to exclude 70 acres are land round entire house for security purposes - held no; too extensive and not required (allowed 12.6 acres)
3 exceptions to access rights:
- privacy/sufficient adjacent land arguement
- land subject to payment for access for at least 90 days prior to 31st january 2001
- land exempted by local authority (or ministers) - have a duty to uphold access rights, and make bylaws
differences between servitude and public access right:
- public only has a burdened property
- public can be excercised by anyone (not just benefitted proprietor)
- public must connect two public places
- public give rights of access only - no other purposes
mackintosh v muir:
essential requirement of public access right that there is a fixed route, allowing access from A to B with no wandering
how are public access rights created?
expressly in a deed granted by landowner
positive prescription much more common - possession for 20 years
requirements for positive prescription of access rights:
- must be along entire length
- continuous and uniterupted
- use must be substantial
- possession must be adverse and not by tolerance
difference between encroachment and trespass:
trespass - transient (temporary) intrusion into land of another by people/animals
encroachment - more than transient (lasts a long time) intrusion by things (building on land)
defences to trespass:
- express or implied consent
- permitted by law
- emergency
