Real Rights and Ownership Flashcards
What is a real right?
A right in a thing
What is a personal right?
A right against another person
What are the differences between corporeal and incorporeal property?
(i) Corporeal property consist of material objects
(ii) Incorporeal goods have no physical existence
What are subordinate real rights?
- Rights which are held in something by someone other than the owner
- when there is a subordinate real right in something there must be at least to real rights in it
Can an owner of a ‘thing’ also hold subordinate real rights in that thing?
No, subordinate real rights can only be held by non-owners
Example
Diana owns a farm. Diana grants a servitude of access through the farm to Erica, the owner of a nearby house. Next, Diana grants a lease of the farm to Freddie.
Q(a):How many real rights are there in the farm?
(b)Diana then sells the farm to Gordon. How many real rights are there now?
(c)Finally, Freddie grants a sub-lease to Henrietta. How many real rights now?
(a) Three real rights:
- Diana’s real right of ownership
- Erica’s real right of a servitude of access granted by Diana
- Freddie’s real right granted by Diana in the form of a lease
(b) There would still be three real rights, only now would the real right of ownership be with Gordon as opposed to Diana.
(c) There would now be a fourth real right in the form of the sub-lease.
Define “prior tempore potior jure”.
earlier by time, stronger by right
Example:
Hilary owns a house. She grants a standard security to Bank 1 for £100,000. She then grants a standard security to Bank 2 for £50,000. Hilary is made bankrupt. The house is sold for £130,000.
Q. How much does Bank 1 get and how much does bank 2 get
The prior tempore potior sure rule will apply
- Bank 1 have a standard security for £100,000 (RR),
- Bank 2 are then granted a standard security for £50,000 (RR).
- After the selling of the house Bank 1 would receive their full amount of £100,000 back
-Bank 2 would receive 30,000 of their original £50,000.
The grantor of the first standard security (RR) has priority.
Example:
Ida owns a farm. She grants a lease to Jack and Jack enters into possession. Ida then immediately grants a further lease of the farm to Karen.
Q(a) How many real rights are there now? (b) What has happened to Jack’s lease?
(c) What about Karen?
(a) Ida has a real right of ownership.
- Jack has a real right of the lease.
- Karen has an incompatible real right of the lease so there are technically 3 real rights
(b) Jack’s lease would be valid in line with the prior tempore potior sure rule
(c) two real rights of lease to the same part of land does not work Therefore, there are two real rights.
- Karen’s real right is incompatible.
What is meant by ‘Bona Vacantia’?
- Translates to ‘vacant goods’.
- Name given to ownerless/abandoned property, which by law passes to the crown as ultimas haeres
What did the case of ‘Mackenzie v Maclean 1981’ decide in regards to abandoned property?
That which the owner decided to give up would be passed the crown.
What piece of legislation governs lost property in Scotland?
Civic Government (Scotland) Act 1982, Part VI
What should a person do who finds ‘lost property’?
- To act in line with the Civic Government (Scotland) Act 1982, Part VI, any person who finds property which does not belong to them has a duty to pass on information that they occupy said property.
- This information should be passed on to reasonable persons i.e the police
What is original acquisition?
- where an entirely new proprietary right has been created
- Can happen in to ways (i) the res (a thing) might have been res nullius (owned by nobody) or (ii) where a new res has only just came in to existence
What is derivative acquisition?
Occurs where ownership passes from one person to another.
- I.e property transferred between A and B
