PROPERTY- yako record Flashcards
Abandoned property- Juristic person
Area of law ‘Ownership’
If a Juristic person is dissolved still holding it’s assets, the ownership to those assets transfer to the crown.The procedure for handling lost and abandoned property ‘bona vacantia’ is found in ‘Part VI ‘ of the ‘Civic Government Scotland Act 1982’.(quote it) 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.
Lost property- Area of law ‘Ownership’
Lost property does not equate to abandoned property; although, lost property can be passed onto the Crown after 20 years of being out of possession. The procedure for handling lost and abandoned property is found in ‘Part VI ‘ of the ‘Civic Government Scotland Act 1982’.(quote it) 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.
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Valid personal rights but not real rights- area of law acquisition by voluntary transfer
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.
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Offside Goal Rule (rights in land) Area of law ‘Acquisition by voluntary transfer’
Real rights in land arise not when the deed is delivered but on registration, regardless of good faith or not the first to register will still have valid ownership due to Prior temporé potior juré. However, if the person was indeed in bad faith,as 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; the offside goal rule can be applied(reduction), their title will be valid but voidable. In the case Rodger Ltd v Faudry, the owner of a land concluded missives to sell to Rodger Ltd. When the company failed to pay the price, he then sold to Marjorie Bell. A disposition was granted to her and recorded in the Sasine Register. She was now owner, but the company raised an action of reduction against her. The court agreed and the disposition was reduced.
Creditors doing diligence OR trustee’s in sequestration (offside goal)-Area of law ‘acquisition of transfer’
The offside goal only applies to voluntary grantee’s. So it does not apply to creditors doing diligence or to trustee’s in sequestration. In the case Burnett’s Tr v Grainger, Mrs Burnett was contractually bound to give a good title to Mr and Mrs Grainger. She was sequestrated. her trustee knew of the contract, but nevertheless transferred title to his own name. The offside goal could not be plead against him by Mr and Mrs Grainger.
The offside goal rule applies only if the first buyer’s right was capable of becoming a real right. In the case Wallace v Simmers, William Simmers agreed with his daughter that she would occupy a cottage on his farm indefinitely and rent-free. Later, he conveyed the farm to his son, he knew of the agreement with his sister and was happy with it. Years later he sold the farm to Robert and Douglas Wallace. They asked Margaret Simmers to leave, when she refused they sued to have her removed. She plead that they knew of her right before buying. The court held that even if they did know, they were not bound thereby. Margaret’s right was not a lease, it was a personal right and so was outwit the scope of the ‘offside goal rule’.
Assignation- Area of Law ‘Acquisition by voluntary transfer’
The contract to assign does not have to be in writing, the need for the contract of assignation to be in writing was abolished by the ‘Requirements of Writing Scotland Act 1995’. Transfer of claim takes place not on delivery of the deed of assignation but on intimation to the debtor. Upon intimation the personal right passes from the cedent’s patrimony to the assignee’s. The assignee replaces the cedent as creditor of the debtor. All exceptions competent against the cedent before the assignation or intimation are relevant against the assignee.
In the case ‘Scottish Windows Fund v Busit’ Mr Moir took out a life assurance policy, assuring the company that he was in good health and of sober habits. In fact, he suffered from syphilis and alcoholism. He assigned the benefit of the policy to Mr Busit. When Mr Moir died Mr Buist, who had acted in good faith, sought payment of the policy proceeds. The company refused to pay, citing the assignatus utter principle. The defense was upheld. Suppose that Mr moi had not assigned the policy. Then, on his death, the company could have refused to pay his executor.
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Assignation utitur principle- Area of law ‘Acquisition by voluntary transfer’
The assignation utitur rule applies to matters as they are at the date of intimation. In ‘Hugh Macpherson’s JF v Mackay’, Hugh was one of the beneficiaries of a large trust set up by his late father, Archie. A beneficial right in a trust is incorporeal moveable property and can, in most cases at least, be assigned. Hugh married Alice. A separate family trust , a marriage trust was established. Hugh assigned his share in Trust 1 to the extent of £1,000 to the trustees of Trust 2. The assignation was intimated to the trustee of Trust 1 and indeed the sole trustee. Over time, trust 1 paid out to Hugh the whole amount allocated to him under the trust. After Hughe’s death, the trustees of Trust 2 claimed £1,000 from Trust 1. The trustee’s of Trust 1 plead assignatus utitur, arguing that Hugh could not have claimed that money, and so his assignees could not either. This defense failed. At the time when the assignation was intimated, the money was there. However, the assignation utitur principle is a shield not a sword.In ‘ Binstock Miller & Co Ltd v E Coya & Co Ltd’, there was a sale of orange juice. The buyer paid part of the price and the sellers then assigned their right to the balance. When the asignee sought payment, the buyers refused to pay, saying that the orange juice was disconform to contract and had been rejected by them. The buyers not only refused to pay the balance, but sought to claim back rom the assignees the part of the price that they had already paid to the sellers. It was held that, although the buyers were entitled to refuse to pay the balance, they could not recover their money from the assignees. They would have to claim that from the sellers. There are some exceptions provided by the ‘Bill of Exchange Act 1882’ to the rule of assignation.
Assignation utitur principle- Area of law ‘Acquisition by voluntary transfer’
The assignation utitur rule applies to matters as they are at the date of intimation. In ‘Hugh Macpherson’s JF v Mackay’, Hugh was one of the beneficiaries of a large trust set p by his late father, Archie . A beneficial right in a trust is incorporeal moveable property and can, in most cases at least, be assigned. Hugh married Alice. A separate family trust , a marriage trust was established. Hugh assigned his share in Trust 1 to the extent of £1,000 to the trustees of Trust 2. The assignation was intimated to the trustee of Trust 1 and indeed the sole trustee. Over time, trust 1 paid out to Hugh the whole amount allocated to him under the trust. After Hughe’s death, the trustees of Trust 2 claimed £1,000 from Trust 1. The trustee’s of Trust 1 plead assignatus utitur, arguing that Hugh could not have claimed that money, and so his assignees could not either. This defense failed. At the time when the assignation was intimated, the money was there. However, the assignation utitur principle is a shield not a sword.In ‘Binstock Miller Co Ltd v E Coya and Co Ltd’, there was a sale of orange juice. The buyer paid part of the price and the sellers then assigned their right to the balance. When the asignee sought payment, the buyers refused to pay, saying that the orange juice was disconform to contract and had been rejected by them. The buyers not only refused to pay the balance, but sought to claim back rom the assignees the part of the price that they had already paid to the sellers. It was held that, although the buyers were entitled to refuse to pay the balance, they could not recover their money from the assignees. They would have to claim that from the sellers. There are some exceptions provided by the ‘Bill of Exchange Act 1882’ to the rule of assignation; stating that ‘If the debt has been embodied in a fully negotiable instrument, intimation is not required and the assignation utitur rule does not apply’. Moreover, the ‘Policies of Assurance Act 1867, s.5’ states in relation to assignation, ‘rights under life insurance contracts are assignable, but there exists special legislation.
Negative Prescription
If by the time the loan contract says that repayment must take place, the debtor pays nothing and the creditor does not acknowledge the debts existence and does not raise an action, the debt will be extinguished. This is due to negative prescription. The ‘Prescription and limitation Scotland Act 1973’ in s.6 sets out the cut off period of time for the right to be repaid a debt. (Quote it) Answer question.
Overriding interests- Law area ‘Land Registration’
A buyer is under the Land Registration Act 1979, protected against ‘omitted encumbrances’, such as third party rights that are not disclosed in the title sheet, but this applies only to such encumbrances as should, by specific legislative provision, have been entered in the title sheet.
Title of a gratuitous grant
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.
Land Registration- settlement
The Land Registration Scotland Act 2012 creates a protective period of 35 days. Such notice can be placed in the Land Register in advance of settlement and provided that the disposition is registered within the protected period, it will trump adverse entries made in either the Land Register or the Inhibitions Register. In the case ‘Sharp v Thomson’ Thomson’s brother
The Gap risk- area of law acquisition by voluntary transfer
The buyer may not be able to register the disposition right away. So the buyer is at risk, for the seller has the money already and is still owner of the property; if in the gap period, the seller becomes insolvent, like in the case ‘In the case Burnett’s Tr v Grainger’, Mrs Burnett was contractually bound to give a good title to mr and Mrs Grainger. She was sequestrated. her trustee knew of the contract, but nevertheless transferred title to his own name. This could affect the buyer. The ‘Land Register (Scotland) Act 2012’, creates a protected period of 35 days, and provided that the disposition is registered within the protected period, it will trump adverse entries made in either the Land Register or the Inhibitions Register.
Partial exception to a breach of warrandice is there?
The case ‘Lothian & border Farers Ltd v McCutcheon’ is another exception, however, a controversial one, holding that a lease does not mean breach of warrandice.
Settlement
Settlement takes place at the date of entry. The buyer pays the price and the seller gives possession and delivers the disposition. On delivery of the deposition, the buyer does not acquire ownership, but rather the power to become owner, without any further co-operation by the granter, simply by registering the disposition in the Land Register. A person in this position is called an’ unregistered holder of land’.
