Property Flashcards
Real Rights and Personal Rights
What are personal rights?
Give an example
Personal rights are rights against another person.
An example of a personal right is a contractual right. This is a reciprocal type of right which binds both parties. Per say, if Crystal owns a house and enters into a contract of sale with Grace, Crystal will have a personal right against Grace to be paid the agreed price and Grace will have the personal right against Crystal to be given possession of the house, as well as a deed of transfer called a ‘disposition’.
What are real rights?
What is the main important real right?
Real rights are rights directly in a thing.
The main important real right is the right of ownership.
Compare personal rights and real rights characteristics.
Is one better than the other?
Use examples
The holder of a personal right has a power over the other person. The owner of a real right has a direct power over the thing. A personal right is just as good as the person it is held against.
E.g . If Kolela borrows £1000 to Francine and Francine is able and willing to pay Kolela back then Kolela’s claim is good as gold. However, if Francine becomes insolvent then Kolela’s personal right is of limited value.
Just as a real right is as good as the thing in which it is held. If Kolela owns a book which is worth £1000, however, it gets burnt and destroyed in a fire, all Kolela has is ashes.
What is a disposition?
A disposition is a deed of transfer of land from the seller to the buyer.
What is a servitude?
A servitude is a real right which allows a landowner to make limited use of the neighboring land.
What are personal rights and real rights sometimes referred to as?
Personal rights are sometimes referred to as movable rights and real rights are referred to as heritable or immovable rights.
Give an example of an intellectual property?
Are they regarded as real rights or personal rights?
A copyright is an intellectual property.
They are regarded as real rights.
Angela owns a farm, she enters into a contract with Barry. The contract allows Barry to use a farm track to access his cottage. Angela then sells the farm to Callum. How does this affect Barry?
Barry will be affected by Callum’s decision, for example, not allowing him access through the farm track as Barry only has a personal right against Angela.
What if, instead of entering into a contract with Barry, Angela grants him a servitude?
If Angela grants Barry a servitude, that will give him a subordinate real right meaning that even in the case of a transfer of ownership from Angela to Callum, Barry’s real right of servitude will be enforceable against Callum too.
What is another name for immovable property?
Another name for immovable property is heritable property.
What are subordinate real rights?
Give examples?
A subordinate real right, is a real right in something , held by someone other than the owner.
Examples are, servitudes, a lease, a right in security and a liferent.
What type of contractual rights are considered heritable?
Contractual rights about real rights in land are considered heritable.
What does corporeal property and incorporeal property mean?
Give examples
Corporeal property means physical things such as bicycles and houses; incorporeal property means non-physical property.
Explain the combining of the four categories?
The first category is corporeal moveable property, such as a bicycle. 2nd is corporeal heritable property such as a house. 3rd is incorporeal moveable property such as contractual rights, intellectual property and company shares.
How many real rights of ownership can there be in something?
How many subordinate real rights can there be in something?
There can only be one real right of ownership in something.
There can be multiple subordinate real rights in something.
Diana owned a farm, she grants a servitude of access through the farm to Fabien, she also grants a lease to Exaucé. How many real rights are there? If Diana sells her farm to Dorcas, how many real rights are there now? How will Fabien and Exaucé be affected by the transfer of ownership? If Exaucé then grants a sub-lease to Naomi, how many real rights are there?
There are three real rights, Diana’s real right of ownership in the farm, Fabien subordinate real right of servitude and Exaucé’s subordinate real right of lease. If Diana sells her farm to Dorcas, there will still be three real rights, all that will have happened is that Diana no longer will have the real right of ownership as she will transfer it over to Dorcas. Neither Fabien nor Exaucé will be negatively affected by the transfer of ownership from Diana to Dorcas, as they hold subordinate real rights, which is enforceable against Dorcas too (as it is against the world). If Exaucé then grants a sub-lease to Naomi there will be four real rights, as Naomi’s sub-lease will count as the fourth subordinate real right.
Darren owns a house, to buy the house he took out a loan from Busted Bank Plc and granted Busted bank plc a standard security. Darren is eventually sequestrated. What can Busted Bank Plc do?
What can Darren’s unsecured creditors do?
In this scenario there are two real rights, Darren’s real right of ownership in the house and Busted Bank Plc’s subordinate real right of standard security. Busted Bank Plc can sell Darren’s house in order to recover what they are owed by Darren.
Darren’s unsecured creditors cannot pick an asset and sell it to get their money, they must wait until the property is sold and Darren will divide what is left amongst them.
If Darren decides to sell his house which is standard to subject of security with Busted Bank Plc, would that security transfer to the new owner?
What could the new owner have done before buying the house?
Yes, the security would transfer to the new owner as real rights survive a change of ownership.
So if the new owner refuses to pay the loan the bank can still take the house from him/her.
So the new owner would ask Darren to discharge that security before buying the house.
What is the Latin for ‘Competition between real rights’ and what does it translate to in English?
“Prior temporé potior jury this translates to ‘Earlier by time, stronger by right’
Hillary owns a house, she grants a standard security to Bank 1 for £100,00, she then grants a standard security to bank 2 for £50,000. Hillary is made bankrupt. The house is sold for £130,000. how much does Bank 1 get? How much does bank 2 get?
Hillary has the real right of ownership, Bank 1 has a subordinate real right of security and so does Bank 2; therefore there are 3 real rights. Bank 1 will get the £100,000 they are owed, the remaining £30,000 will go back into the pot and that is what Bank 2 would receive, they will have made a loss. This is due to prior temper potior juré (earlier by time, stronger by right).
What is the only way to have more than one right of lease?
The only way to have more than one right of lease is the the tenant grants out a sub-lease.
Joyce owns a farm. She grants a lease to Grace and she enters into possession. Joyce then immediately grants a further lease of the farm to Naomi. How many real rights are there? What has happened to Grace’s lease? What about Naomi’s? Next, Joyce grants a standard security to Lovely Bank Plc. How many real rights are there now? If Lovely Bank have to enforce the standard security (and do so by selling the farm), can Lovely Bank remove the tenant Grace?
There are only two real rights, Joyce’s real right of ownership to the farm and Grace’s subordinate real right of lease. There cannot be more than one right of lease, so Joyce cannot grant a lease to Naomi after having granted it to Grace (only Grace can grant a sub-lease to another person for there to be two real rights of lease)
If Joyce grants a standard security to Lovely Bank Plc, there are now three real rights, this is including Lovely Bank Plc’s subordinate real right of security.
Lovely Bank cannot remove the tenant Grace as her real right came before theres, prior temporé potior juré.
What is the meaning of intestate?
Testate?
When someone dies intestate, this means that they have died without leaving a will.
To have died having left a will.
What is the latin for ‘abandoned property’?
Bona vacantia
If an owner of property dies intestate and without traceable family, what happens to their property?
The ownership to their property transfers to the crown.
If a juristic person (an estate or legal entity) is dissolved (closes down) still holding it’s assets, what happens to those assets?
Give Case.
If a Juristic person is dissolved still holding it’s assets, the ownership to those assets transfer to the crown. ( The Queen and House of lords reprints the Crown)
In the case Mackenzie v McLean, damaged cans of McEwans Export and McEavns Pale Ale were dumped in a skip, from which the locals helped themselves. This was prosecuted as theft, this is because abandoned property belongs to the crown.
Does lost property equate to abandoned property?
No, lost property does not equate to abandoned property.
At which point can lost property be passed onto the crown?
Lost property can be passed onto the crown after 20 years of being out of possession.
In which statute is the procedure for handling lost and abandoned property found?
Give relatable case?
The procedure for handling lost and abandoned property is found in ‘Part VI ‘ of the ‘Civic Government Scotland Act 1982’.
In the case ‘Lord Advocate v University of Aberdeen and Budge 1963’ students from the university of Aberdeen found some 8th century treasure in Mr Budge’s land. The University intended to exhibit them in their university museum. Despite the universities defense that because the treasure was found in Mr Budges land, it should belong to him, the treasure was transferred to the Crown.
Explain Derivative Acquisition?
Derivative acquisition is when ownership is acquired through voluntary acquisition from the seller to the buyer.
Explain Original Acquisition?
Original acquisition is when ownership is acquired and does not require anyones consent, other than the acquirer.
In order to become an owner of land what must one do?
In order to become an owner of land, one must receive a disposition (which is a deed of transfer from the seller to the buyer) and they must register the disposition in the Land Register; then they will obtain the real right of ownership of land.
In order to become an owner of a corporeal moveable property, what needs to happen?
In order to become an owner of a corporeal moveable property there needs to be an overt act, such as delivery of the the property after the contractual agreement has been completed and payment has been made. Ownership is transferred not by mere agreement but by an overt act.
Explain the publicity principle?
The publicity principle is that when contractual agreements are completed for property they must be made public. Acts which can affect third parties should be made public, so that that third parties can know of them.
Give examples of cases where an agreement created valid personal rights but not real rights?
In the case Wheeldon’s Ex v Spence’s Ex 2014, Ms Spence signed an agreement which read that Mr Wheeldon assumed full title to the property, however, due to the lack of disposition, there was no real right, the right was simply personal and Ms Spence remained the owner.
In the case Johnstone’s Trustee’s v Baird 2012, a formal agreement stated that ‘the home shall be owned by the sole name of the first party for convenience’, the parties among them agreed that the property would be owned equal share. However, since the property was in the sole name of one party that meant that he was the sole owner. Their agreement created a personal right however not a real right, their names were not in the Land Register.
Transfer is instantaneous. Give case?
.
Compare void, voidable and absolutely good title?
A void contract is one which is invalid. A voidable contract is still valid, however, can be avoided and become void. An absolutely good title, is one which is completely valid.
Explain ‘force and fear’?
When a contract has been brought about by ‘force and fear’ that contract will be void. This is because it was forced upon and not consented.
Explain how a ‘voidable’ title can arise? Give example
A voidable contract can arise when someone validly acquires property, however in a way which is contrary to the right of someone else. That other person then has the option of avoiding the title. For example, fraudulently inducing someone into a contract creates a valid but voidable contract.
Explain how a void title can arise?
A void title happens either because the granter did not have the right in the first place, so the granter’s title itself was void meaning the grantee could not then obtain a valid title.
In the case of Land, a transfer may have consent but a failure to register makes the title void.
Explain the transfer of a voidable titles consequences?
If the granter with an already voidable title transfers title and the grantee was aware of the voidable title, then the grantee’s title will also be voidable.
Explain inhibition?
A creditor can inhibit their debtor that if he dispense any heritable property thereafter, the grantee’s title will be voidable, unless she is paid what she is owed.
Person A, an elderly owns land worth £300,000, Person B a con-woman, produces a fake valuation saying it is worth 200,000. She offers person A £250,000 and he accepts, on a later date an economic crisis arises and property values plunge.The land then becomes worth £200,000, person A discovers the fraud. He will obviously not exercise his option to avoid the contract and on settlement day he receives the £250,000. Will the disposition he hands to person B in exchange be void, voidable or absolutely good?
In this situation, the disposition A hands to B will be absolutely good. This is because a contract can be voidable but not the conveyance.
Is reduction available in sale of goods?
Reduction is available only if there is a deed of transfer to be reduced, so it is not available in sales of goods. In the case of a Land Register title, the decree must be registered , for the defender loses ownership only when the decree of reduction is registered.
What would the title of a gratuitous grant be?
For example, the granter owns a Mercedes, when he becomes insolvent he gives it to the grantee. What is the outcome? Use Legislation.
If the grant was gratuitous then the grantee’s title would be voidable regardless of whether the granter knew of it or not.
The transfer would be voidable under s.6 of the Bankruptcy Scotland Act 2016.
