Ownership Flashcards
What is the residual real right?
Ownership
2 important powers of ownership
1) Power to grant subordinate real rights
2) Can transfer right of ownership
3 ways to acquire ownership?
1) Derivative Acquisition Voluntary
2) Derivative Acquisition Involuntary
3) Original Acquisition
Voluntary derivative acquisition is?
When someone choses to transfer their ownership to you
Involuntary derivative acquisition is?
Someone or something forces ownership from one patrimony to another
Original Acqusiiton is?
When you are the first owner, maybe because you created something or because the thing was ownerless before
Who has the right originally?
The granter/ transferor/ seller/ donor
Who receives the right?
The grantee/ transferee/ buyer/ donee
What is transfer?
The movement of a right from one patrimony to another (sale/donation)
Essentials to acquisition?
- capacity
- consent
- agreement on the 3 P’s
Capacity
Must be over 16
Must be mentally capable of understanding what you’re doing
Consent
Needs to be meeting of minds, both parties must consent
Essential elements of transfer are reified to as?
The there P’s
The three P’s are?
- The parties
- Property
- Price
The parties principle
You cannot transfer to yourself must be 2 parties
Authority for needing two parties?
Board and Management of Aberdeen College v Youngson
The properties principle?
Need to agree what it is you’re transferring
The need to agree on property is referred to as what?
The specificity principle
Price
You need to agree on the price
What does it mean if you haven’t agreed on the 3 P\s?
Then no transfer
3 Elements of the transfer process?
Contract + conveyance + external act
What is agreed in the contract stage?
The 3 P’s
How do you make your contract?
Depends on the thing
- Heritable: needs to be written
Moveable: contract through actions
What is involved in the conveyance state?
The time you fulfil your contractual obligations.
Plus either literal or metaphorical handing over.
What is the point of the external act?
That the world at large know that ownership has changed
as you can’t enforce your rights against people if they don’t know you have them
What s the fact that you cant enforce your rights against people who don’t know about them called?
The publicity principle
Can ownership be confirmed without the external act?
No, transfer not complete until external act performed
Examples of external act?
- possession (small possessions, e.g. pen)
- land = registration
What happens once external act has been performed?
Ownership instantly transferred
What is the result of the transfer?
Grant has title
What does good title mean?
Grantee has unassailable claim of ownership
What does voidable title mean?
Grantee has claim of ownership but can be defeated by one other person. Has ownership but can lose it.
What does void title mean?
Grantee has no claim of ownership. Something has gone wrong in transfer process and grantee retains title
Reasons for transferor’s title being void?
- granter’s title was void
- Contract or conveyance was flawed by a fatal defect.
What is the principle behind void title being transferred if granter’s title is void?
Nemo dat quod non habet
can’t give what you don’t have
3 fatal flaws that lead to void title?
- no capacity
- no consensus
- non compliance
What might cause voidable title?
- transfer contrary to rights of another person
So a violation of 3rd parties rights, means one person can claim their ownership back.
How could it have happened contrary to the rights of a third party?
- contrary to the rights of the transferor if consent defective
- contrary to the rights of a third party whom the granter owes an obligation
- ^^ can occur if transferor is insolvent as they owe an obligation to their creditors (so creditor must then claim back from grantee)
- also as a result of the offside goal rule
Offside goal rule case?
Rodgers (Builders) Ltd v Fawdry
Facts of Rodgers (Builders) Ltd v Fawdry?
Contracted to sell same house twice with 2 separate people. Second person knew conrract pre existing with first.
Second then wrnt on to complete transfer. She supposedly gained title./
First party, Rodgers, said this was unfair, said her title was voidable by them.
Court said yes. Second persons title voidable by first party, first party could reach in and take the right of ownership from her patrimony.
Important conditions of the offside goal rule?
- 2nd party must know of the first contract
Obligations in the first contract must be breach - breach must be voluntary by granter (not bankrupt)
Does it matter at what point knowledge occurs?
No,
Gibson v Royal Bank of Scotland 2009
2 ways consent can be forced therefore leading to voidable contract?
- undue influence
- facility and circumvention
Effect of void title?
Real owner can just come in and take back their ownership
Remedies for void title?
Restitution” transferee has possession so has to give it back to the transferor.
If you’ve been conned then you can raise claim of damages to reclaim your money.
Effect of voidable title?
Everything stays as it appears unless the person who’s right have been contravened takes action
Remedies for voidable title?
Need to reduce then redo deed.
- if deed transferred at conveyance stage then this deed must be reduced and re conveyanced to the grantee or the 3rd party.
- if return of property is impossible compensation must be given
- could claim damages if no property
If you have voidable title what do you pass on?
Good title. Only you have a flaw in your title.
Can you pass on title?
No, as nothing in your patrimony.
You can only pass on void title.
All voidable title means is…
someone has a personal right against your real right of ownership (this is why you pass on good title, personal claim stays against you)
