Property Law

Question 1

Baroness Miranda van Leyden v Colin Gilchrist

Answer 1

Accession, chalet accedes to land

Question 2

Cochrane v Stevenson

Answer 2

Accession via functional subordination. Three oil paintings hanging on wall, the one that covered up an unfinished part of the wall was held to accede

Question 3

Fife Assessors v Hodgeson

Answer 3

Accession via functional subordination. Storage heaters were held to accede

Question 4

Leigh v Taylor

Answer 4

Authority for accession via permanency. Where there is a degree of attachment greater than strictly necessary to enjoy the article and to secure it to the heritable property

Question 5

Howies Trustees v Mclay

Answer 5

Accession via mutual special adaption. In this case lace looms rested on their own weight, but the building they were in had been specially adapted to house them and thus they were considered to have acceded

Question 6

TSB Scotland v James Mills (Montrose) Ltd (in receivership)

Answer 6

The affect of removal and installation time on accession. Car crushing machinery would have taken a significant amount of time and effort to remove and thus was held to accede

Question 7

International Banking Corporations Ltd v Ferguson Shaw and Sons

Answer 7

Specification has a requirement of good faith

Question 8

Wylie and Lockhead v Mitchell

Answer 8

Parties may agree who owns the new thing under specification

Question 9

MacKenzie v Maclean

Answer 9

Abandoned property that is property that the owner decides to give up. They lose their right of recovery for the property and it becomes the property of the crown

Question 10

Burnett’s Trustees v Grainger

Answer 10

G’s solicitor delayed in registering his title. B then became insolvent and her trustee in bankruptcy registered title to the land. G then tried to register title in the land. According to the maxim first in time, first in law, the bankruptcy trustee was held to have better title

Question 11

Chief Constable of Strathclyde Police v Sharp

Answer 11

Sharp reported the theft of his car though it was suspected that this was part of an insurance fraud scheme. He handed his keys and registration to the insurers. MacMillan later bought the car which had been fitted with false registration plates and had no documentation. Later when MacMillan realised that the car was on a police stolen property list, he reported this and the police took custody of the car. To resolve the question, the chief constable raised a court action to determine who the owner of the car was. Initially the court held that it was Sharp, however, on appeal, the Sheriff principle invoked the presumption that the possessor is the owner and said that Sharp had failed to show that he had lost ownership in circumstances consistent with a right to recover. The original court’s decision was reversed and MacMillan was found to be the owner

Question 12

Macleod v Kerr

Answer 12

transmission is possible where there is a voidable title, a thus a third party can acquire ownership. The third party will then hold good title and the defrauded seller will not be able to claim the thing back. They will only have a claim for compensation. In this case a car was bought with a false cheque and then sold on by a rogue trader

Question 13

Morrison v Robertson

Answer 13

M sold 2 cows to T as a result of fraudulent misrepresentation by T that fooled M into thinking he was the acting on behalf of his father, someone M knew to be good for credit. T never paid and sold the cows on to R, who acquired them in good faith. In this case it was held that the cows were never sold to T and thus R did not have title to them. M could therefore recover the cows from R

Question 14

Roger Builder’s Ltd v Fawdry

Answer 14

Fawdry sold his mansion and land to Roger with a settlement agreed for the 11th November. This created a mutual contractual obligation. A third Party, Bell, then indicated his interest in the property to Fawdry’s lawyer. Roger failed to perform as agreed so on the 28th November Fawdry entered into a new contract with Bell despite both parties knowing that Roger was waiting outside to see Fawdry. Roger had a cheque for the price, Fawdry intimated recession but Roger rejected this. The disposition was delivered to Bell on the 22nd December and recorded in the Register of Sasines on the 23rd December. Roger sought to reduce the conveyance to bell on the grounds of bad faith. The Court of Session held that Roger was entitled to the reduction of the conveyance to Bell and to conveyance in his [Roger’s] favour.

Question 15

Alex Brewster and Sons v Caughey

Answer 15

M sold development land to C subject to a suspensive condition regarding planning permission. C later contracted with AB&S subject to the suspensive conditions on planning permission and concerning payments by AB&S directly to M, and profit sharing with C if they sold on. Almost two years later it did not appear that AB&S was going to proceed so C assigned the rights to a company he established with a third party and for which he was the agent. On April 6th, the company settled with M and registered their disposition on April 10th. Also on April 6th AB&S told C they were ready to proceed. In the resulting court case it was an issue as to whether the company knew AB&S’s interest before its contract with M or only before registration. Lord Eassie held that the company had known about AB&S’s interest before the contract with M. He also held, obiter dictum, that in any event, knowledge acquired after a contract but before registration would still constitute an offside goal.

Question 16

Inglis v Paul

Answer 16

Lord Balgray ‘to say a lease is a real right is a most egregious mistake in point of law. No doubt it is effectual against a singular successor and it descends to heirs; but this arises from other extrinsic and adventitious circumstances, totally distinct from the true nature of the right’

Question 17

Nova Scotia Ltd v Henderson

Answer 17

there is no such thing as a quasi-real right

Question 18

Burnett’s Tr v Grainger

Answer 18

Lord Roger, quoting Lord Hope, quoting Barry Nicholas, ‘any claim is either in rem or in personam, and there is an unbridgeable division between them

Question 19

Clydesdale Bank v Davidson

Answer 19

leases are bilateral in nature

Question 20

Gray v University of Edinburgh

Answer 20

A lease gives a temporary right and therefore there must be a duration. If none is stated, but possession is taken, then the lease will be inferred to be for a period of one year

Question 21

Andert Ltd v J and J Johnson

Answer 21

Corporeal heritable property must be clearly defined

Question 22

Moncrief v Jamieson

Answer 22

positive servitude, right to park car

Question 23

Irvine Knitters Ltd v North Ayrshire Co-operative Society Ltd

Answer 23

It is an implied rule that a servtitude can only be used for the benefit of a dominant tenement

Question 24

Gloag v Perth and Kinross Council

Answer 24

No statutory right of access to gardens

Question 25

Tuley v The Highland Council

Answer 25

proprietors of a piece of land who erected barriers to prevent damage to woodland by equestrian access were not in breach of the Land Reform (Scotland) Act 2001

Question 26

Compugraphics Internation Ltd v Nikolic

Answer 26

Case in regards of the right of support. Pipe projecting over neighbours land supported by wooden posts. Valid servitude so the landowner could not remove the supports as he couldn’t jeopardise the position of the pipe

Question 27

Watt v Jamieson

Answer 27

If conduct is found to be plus quam tolerabile then it is no defence to say that the nature of the use was usual, familiar or normal

Question 28

Maguire v Charles M’Neil

Answer 28

an interference with the comfortable enjoyment of a dwellinghouse in a residential area will be more serious than the interference of a dwellinghouse in an industrial area

Question 29

Bamford v Turnley

Answer 29

certain activities which might otherwise be considered a nuisance, which are necessary for the common use of the land, may be done without giving rise to an action

Question 30

Wilson v Gibb

Answer 30

practicality of remedial measures. A fried fish shop which is clean, tidy and respectable will not be liable for smell. Contrast with Ireland v Smith.

Question 31

Ireland v Smith

Answer 31

an insanitary henhouse near a neighbour’s home made the defendant liable for the smell

Question 32

Armistead v Barrowman

Answer 32

sensitivity of the pursuer. A man who chose to build a laboratory at the foot of a river must take his chances about the effects of ordinary agricultural practices upstream

Question 33

Ben Nevis Distiller v North British Aluminium

Answer 33

upstream aluminium production effected a downstream distillery. The courts granted an interdict despite the fact that the company produced 73% of the countries aluminium, the cost of replacing the aluminium and the employment implications of closing the factory

Question 34

Banff Magistrates v Ruthin Castle Ltd

Answer 34

A mansion was held to be in the common, rather than joint, ownership of two local authorities. This invalidated a lease. The judgement of Lord Cooper clarified that common and joint ownership had distinct meanings

Question 35

Clydesdale Bank v Davidson

Answer 35

In situations of common ownership unanimity is required for action. Additionally, as a matter of property law, a group of pro indiviso owners cannot grant a valid lease to one of their own

Question 36

Schaw v Black

Answer 36

the courts are prepared to accept the silence of one pro indiviso owner as connoting consent in matters relating to the management of co-owned property

Question 37

Denholms Trustee v Denholm

Answer 37

Co-proprietors do not need to have equal shares in common property

Question 38

Rafique v Amin

Answer 38

The right of one co-proprietor to exercise a veto is absolute. In a situations where one co-proprietor exercises a veto, it is up to the other to prove that the works he wants to carry out fall under the principle of de minimus non curat (the law does not concern itself with trifles). In this case it was held that the use of a common stair as a fire escape where there was no other exit was necessary, but the insertion of steel beams into a wall was not de minimus and therefore could not be vetoed.

Question 39

Deans v Woolfson

Answer 39

One co-proprietor could not veto the rebuilding of a fire escape that burned down because necessary repairs can be carried out unilaterlary

Question 40

Carmichael v Simpson

Answer 40

Common areas are for ordinary use only. It is not fair use of common property to park a bath chair in a stairwell

Question 41

Bailey’s Executor v Upper Crathes Fishing Ltd

Answer 41

One co-proprietor was deemed to be deriving excess benefit from the common property at the expense of the other by selling fishing licenses

Question 42

Grant v Herriot’s Trustees

Answer 42

A co-proprietor acting unilaterally is not competent to grant a servitude over common land. Neither can they grant exclusive possession to a tenant

Question 43

Thom v Macbeth

Answer 43

where dividing a property rather than selling it would decrease its economic value, the property must be sold

Question 44

Brand’s Trustees v Band’s Trustees

Answer 44

Accession by degree of attachment. Machinery that is fixed onto a piece of land accedes to the land

Question 45

Christie v Smith’s Executors

Answer 45

Accession by physical attachment and functional subordination. very heavy items accede without the need for physical attachment. In this case a summerhouse acceded to the land without being attached. Additionally the summerhouse formed part of the land boundary which means it also acceded by virtue of functional subordination

Question 46

What is the difference between real and personal rights?

Answer 46

Real rights are rights in things. Personal rights are those enforceable against a person

Question 47

What is necessary for possession and what rights does it give?

Answer 47

A thing is possessed when it is held by a person for their own use. It requires both physical control over the thing and the intent to use it (i.e. the intention to hold the thing for the possessors own benefit and the intent to exercise control over it). Possession gives the possessor the right not to be dispossessed without due process, even if they are a thief or squatter. There is also a presumption under the law that a possessor is the owner

Question 48

What is the difference between a good and bad faith possessor

Answer 48

A bad faith possessor is liable to compensate the owner for their loss. This can be for ordinary profits i.e. the actual income or for violent profits i.e. the highest possible profit a property could yield rather than the actual. The latter is only applicable in cases of vitious dispossession e.g. when a tenant stays at the end of their lease. A bona fide (good faith) possessor is entitled to the fruits of the thing in their possession

Question 49

Key entitlements of an owner

Answer 49

1) right to exclusive possession
2) the right of, and obligation to, support
3) the right to use property without interference from neighbours

Question 50

Exception to exclusive possession

Answer 50

Land Reform (Scotland) Act 2003 gives a right to responisble access to land in scotland

Question 51

What are the two categories nuisance is divided into?

Answer 51

1) physical damage

2) interference with enjoyment and use

Question 52

Define plus quam tolerabile

Answer 52

In order to prove nuisance the pursuer must prove that the invasion or interference is more than he should reasonably be expected to tolerate. To determine whether this is the case the court will look at the defenders acts or omissions

Question 53

What is the difference between common and joint ownership?

Answer 53

In common ownership, each owner has title to their undivided share which they may burden by their own individual act. On their death, title will pass by their will or transmit to their heirs.
In joint ownership, the co-proprietors have no separate estate but only one estate vested in them pro indiviso. They cannot burden their share by their own individual act and on their death title passes to the remaining joint owners. Joint ownership mainly applies to trust properties or unincorporated associations. It is elastic and the number of ‘owners’ may expand and contract.

Question 54

What is co-ownership?

Answer 54

Co-ownership is where ownership of an estate of land is held jointly between two or more co-proprietors. Scots law is unititular, this means that while there can be more than one owner, there cannot be more than one title

Question 55

What are Ken Reid’s rules governing co-owned property?

Answer 55

1) Each common owner has the right to use every inch of the property
2) Co-proprietors may make only ordinary use of the property
3) No single co-proprietor may make excessive use of the co-owned property at the expense of another

Question 56

Remedies for a dispute about common properties?

Price v Watson

Answer 56

1) Judicial administration
2) Appointment of a judicial factor
3) Division and sale
P v W says that that the factor and d&s are the only remedies that are used

Question 57

Definition: Occupatio

Answer 57

appropriating things which have no owner by apprehending them or seizing them into your possession. To become the owner requires both physical possession and intent to use. Occupatio does not apply to heritable property

Question 58

Consequences of appropriation in occupatio

Answer 58

1) the taker becomes the owner
2) all who try to appropriate the taken thing are thieves
3) wild animals can recover their original state of freedom (though some animals have the instinct to return)

Question 59

Definition: Accession

Answer 59

Accession is when two pieces of corporeal property have joined together in such a way that one (the accessory) has been subsumed in the other (the principle)

Question 60

Compensation for accession

Answer 60

If the accession was because of the owner of the principle thing then the owner of the accessory loses ownership but has a right to compensation for repayment of its value. If the accession was because of the owner of the accessory then they have no right to compensation unless they acted in the reasonable but mistaken assumption that they had more than a transient right to the principle. If the accession was because of a third party then the third party is liable to compensate.

Question 61

Three conditions to find out if a thing has acceded

Answer 61

1) physical attachment
2) functional subordination
3) permanency or quasi permanency
Three factors do not all have to be present and one can carry the others

Question 62

Factors to determine permanency in accession

Answer 62

1) degree of attachment greater than is strictly necessary for enjoyment or use
2) mutual special adaption
3) items usually of a type that would be left behind by previous owners
4) installation and removal time

Question 63

Defination: Alluvion and Avulsion

Answer 63

Alluvion is a form of accession of land to land. Where dry land increases (i.e. because of retreating water) the new land accedes to the old. Where the area of land underwater increases, the newly submerged land accedes to that which is already under water. The addition must be gradual or imperceptible and the new land must be more than temporary.
Avulsion is a sudden increase in land, i.e. a large piece land breaks away and flows downstream in a flood. The land does not accede and the owner can reclaim it.

Question 64

Definition: Specification

Answer 64

Specification requires a nova species (a new species). This means that it must have a different identity to the original things. It happens when two or more things belonging to two or more people are subject to an industrial process. Ownership goes to the maker if a thing is irreducible to its original state.

Question 65

Definition: Commixtion and Confusion

Answer 65

Commixtion is the mixture of solids belonging to two or more individuals. Confusion is the mixture of liquids. There is no common ownership if the mixtures are still separable. There is common ownership if the mixture cannot be separated into its constituent parts or if the mixture was by consent. Where the mixture is without consent, the parties share ownership with respect to the quantity and value of their contribution.

Question 66

Prescription and Limitations (Scotland) Act 1973

Answer 66

S.1 of the act provides that land can prescribe if the ‘if land has been possessed by any person, or by any person and his successors, for a continuous period of 10 years openly, peacefully and without judicial interruption’
Possession must also have been as founded on a registered or recorded deed which is ex facie valid and not a forgery.
Under s.3 there are similar rules applying to servitudes and public rights of way. However it requires 20 years rather than 10, and can sometimes be created without the need for a deed.

Question 67

Land Registration etc. (Scotland) Act 2012

Answer 67

s. 50 says that registration of a valid disposition transfers ownership, and an unregistered disposition does not transfer ownership. Registration is the equivalent of delivery in Scots law- rights are transferred by delivery not bare agreement.

Question 68

Nemo dat quod non habet

Answer 68

no one can give what he does not have

Question 69

A transfer of ownership can have three separate results

Answer 69

1) void title
2) voidable title
3) valid title

Question 70

Ownership of land passes when…

Answer 70

…where it is registerable under the Land Registration (Scotland) Act 1979, and is then recorded in the Scottish Land Register or the Register of Sasines

Question 71

What is the offside goals rule?

Answer 71

The offside goal rule applies mainly to heritable property. Basically where an individual becomes bound to sell to one party, and then another party, who knows about that obligation, takes second right in that property, the second right is ineffectual and reducible against the first purchaser. This makes sense because, in granting the second right, the seller is guilty of a fraud against the first purchaser. Against the seller himself, the transaction would be clearly reducible. However in taking the second right with knowledge of the first, the other party becomes an accomplice in the fraud and thus the first transaction is reducible against both

Question 72

Professor Reid says that for order for the offside goals rule to apply, four conditions must be met…

Answer 72

1) there must be a previously existing contact or other obligation affecting the granter
2) the grant must be in breach of a term, either express or implied, of the contract
3) the grantee must have known of the previously existing contract prior to the grant of his own right.

Question 73

Justification for offside goals rules

Answer 73

Controversial because it has been seen as a real right trumping a personal right. Best explanation was given in Burnetts Trustee (obiter dicta) by Lord Roger who stated that the purchasers bad faith made acquisition defective and thus open to reduction as voidable title

Question 74

Gretton and Steven on Leases

Answer 74

although a lease can be a subordinate real right it is unlike other subordinate real rights. [It] straddles awkwardly the law of real rights and the law of contract.’

Question 75

Rankine on leases

Answer 75

‘leases-originally and in their nature merely personal contracts- were in certain cases converted into real rights by the operation of the old 1449 act, as liberally construed by the courts.’

Question 76

Paton and Cameron on leases

Answer 76

‘a contract of lease, although it has some of the privileges of a real right, does not significantly differ from a mutual contract’

Question 77

Lord Gill on leases

Answer 77

the 1449 act has come to be accepted as:
1. Conferring a right in rem on the tenant in a contract that meets the requirements of a valid lease, and
2. Applying to leases of subjects of all kinds
Essentially Lord Gill makes it clear that, through the progress of history, the 1449 act has come to convert a contractual lease into a real right

Question 78

Canning v Glasgow Caledonian University and Another

Answer 78

communist papers were split up for several years, librarian had claim because they had detained it for the longest

Question 79

Webster v Lord Advocate

Answer 79

Coming to the nuisance is no defence

Question 80

Lord Advocate v Uni of Aberdeen

Answer 80

Treasure trove goes to the crown

Question 81

BP v Shetalnd Island Council

Answer 81

You can’t contract out of accession

Question 82

What are the four components of a common law lease

Answer 82

1) parties
2) payment
3) period
4) property

Question 83

Parties

Answer 83

As per clydesdale bank v davidson, leases are bilateral in nature. the general rules of contract apply like that the lessor and lessee must have legal capacity

Question 84

Payment

Answer 84

Rent which takes the form of money, goods or services rendered. Per Mann v Ho grassum does not suffice

Question 85

Period

Answer 85

A lease gives a temporary right so there must be a definite duration. If one isn’t stated then a period of a year will be inferred as per Gray v Edinburgh University
Maximum current length of a lease is 175y under the abolition of feudal tenure (scotland) act 2000
For residential leases this period is only 20 years as per the land tenure reform (scotland) act 1974

Question 86

Property

Answer 86

property must be heritable and corporeal heritable property must be clearly identifiable as per Andert v J and J Johnson.
Exclusive possession is vital unless relates to mineral, shooting or fishing rights

Question 87

Five elements of a 1449 act lease

Answer 87

1) Parties
2) Definite Ish
3) Writing (if over one year though consider the effect of tacit relocation)
4) Payment
5) Possession

Question 88

What turns a contractual lease into a real right under the 1449 act

Answer 88

Posession. Posession must be taken for a contractual lease to become a real right under the 1449 act

Question 89

Bowers v Kennedy

Answer 89

Access to land is a right of ownership. Lanlocked land.