Ownership and Restrictions on Ownership

Question 1

Ownership and Restrictions general

Answer 1

It is the main real right, and only restricted under the Land Reform (Scotland) Act 2003, rules of nuisance

Question 2

Brown v Lee Construction Ltd

Answer 2

Tower Crane went over someone’s garden a little bit, and sought an interdict to stop it. They won. ‘Proprietor of land has exclusive right to use and may prevent others from doing so’
It is a right inter coelum et infernos (Heaven to the centre of the earth) Restriction though as Civil Aviation Act 1982 s 76(1)
Argued back it wasn’t permeant invasion, but again any invasion is wrong

Question 3

Law of Trespass?

Answer 3

In referencing Brown v Lee Construction Ltd it seems as though there is, but no criminal prosecution unless there is damage (Harvie v Turner)

Question 4

Self Help Remedies

Answer 4

Wood v North British Railway Company - Cab driver in Ed Waverly station called then as putting cases on got thrown out. Justified
Bell v Shand - Taken out by scruff of neck

Question 5

Tenements being separated

Answer 5

Can be divided horizontally, or vertically. Two types:
Conventional - arise by express conveyance, can’t have just a tree
Legal Separate Tenements -Crown reserve certain rights in land, still own some rights such as right to fish for salmon, gather mussels, mine gold/silver, natural gas and coal

Question 6

Restraints arising from Statue

Answer 6

Town and Country Planning (Scotland) Acts, the Occupiers Liability (Scotland) Act 1960, and the Land Reform (Scotland) Act 2003.

Question 7

Land Reform (Scotland) Act 2003

Answer 7

S1(1)Everyone has the statutory rights established by Part one of the Act’
A) Recreational purposes
B) Carrying our educational activity
C) Activity that commercially profit (Paid Mountain Guide)
Exception to exception: S6 Land sufficiently adjacent to house can’t be disturbed. Gloag v Perth
If payment needed to access to area
Land expressly excluded by Scottish Ministers
Must use rights responsibly S9 rights which are excluded hunting, vehicle driving

Question 8

Law of Nuisance

Answer 8

Infringes on use and enjoyment of land, and public access and enjoyment of land. Can be put into two cases, physical damage and enjoyment of the land Whitty
Shanlin v Collins (Kennels)
Must be plus quaim toleriabile (More than is tolerable)
Watt v Jamieson - Any type of use that is a substantial annoyance or causes damage to property is not reasonable usage
Look at various factors - nature of harm, social affect, damage to property, individual
Culpa must be on defender - RHM Bakeries Ltd v Strathclyde Regional Council

Question 9

Defences to Nuisance

Answer 9

1) Prescription and Limitation (Scotland) Act 1973 s7
2) Acquiesce by the pursuer
3) Statutory authorisation

Question 10

Aemulatio Vicini

Answer 10

A spiteful act towards neighbour, lawful act. Such as blocking out neighbours light. Misses Glassford v Joseph Astley (Done in malice which isn’t allowed)