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Scots Property Law > Rights in Security > Flashcards

Rights in Security Flashcards

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1
Q

What are rights in securities commonly known as?

A

mortgages

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2
Q

What type of right are rights in securities?

A

Subordinate real rights

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3
Q

Definition of a security?

A

Any right which a creditor may hold for ensuring payment or satisfaction of his debt and which is in addition to his right of action and execution

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4
Q

What is a personal security?

A

Not relevant for property law

  • when person guarentees debt will b paid (guarantor)
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5
Q

What are the two other types of security?

A

Real security
and
functional security

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6
Q

What is a real security?

A
  • Creditor holds real right n addition to person right

- so coupled with ownership = 2 real rights in same thing (e.g. house)

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7
Q

What is a functional security?

A

Creditor retains ownership until debt is paid off in full

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8
Q

How do you make a security real?

A
  • Publicity principle

- must be registered

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9
Q

Enforcement?

A

Sale with surplus returned to debtor

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10
Q

What obligation is put on the selling creditor?

CFR(S)A 1970 s25

A

Must sell for best price possible

CFR(S)A 1970 s25

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11
Q

What act is all about standard securities?

A

Conveyancing and Feudal Reform (Scotland ) Act 1970

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12
Q

In what 5 ways can a security be extinguished?

A
  • Discharge of debt
  • Property no longer exists
  • Renunciation
  • After enforcement
  • Confusion
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13
Q

What are the types of voluntary security?

A
  • Pledge
  • Floating charges
  • Standard Securities
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14
Q

What are the type of involuntary securities?

A

1) Tacit securities
2) Judicial securities
3) those by public bodies

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15
Q

What are tacit securities?

A

Lien and landlords hypothetic

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16
Q

What are judicial securities?

A

Diligences

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17
Q

Pledge can be held in what type of thing?

A

Corporeal moveables

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18
Q

How is a pledge created?

A

by delivery of the good in terms of an agreement for the property to secure an obligation owed

19
Q

Is a pledge normally in writing?

A

No

20
Q

What counts as delivery?

A

Creditor having and retaining possession

21
Q

How do you enforce a pledge?

A

Creditor applies to sheriff

  • Licensed pawnbrokers can sell if debt not paid in 6 months
  • where debt not exceeding £75 and no sale then property is forfeited to the pawnbroker
22
Q

Who does floating charges relate to?

A

Only companies

23
Q

Are floating charges normally in writing?

A

Yes

24
Q

When must floating charges be registered?

A

In 21 days

25
Q

What is the nature of floating charges?

A

They float over the companies assets including whatever comes in but excluding whatever leaves.

26
Q

What are standard securities?

A

Securities over heritable property

27
Q

What act governs them?

A

Conveyance and Feudal Reform (S) Act 1970

28
Q

What does s1(2)(b) dictate about their formation?

A
  • must be in writing
29
Q

How do they become real?

A

Must be registered

30
Q

What does such 3 say are the standard conditions of standard securities?

A
  • be assigned
  • prior tempore portior jure (first come first served) applies

sch 3

31
Q

Sch 3 Obligations on the debtor

A
  • maintain and secure property
  • not to demolish part or all of building
  • have insurance
  • need consent to let property
32
Q

Sch 3 obligations on the creditor?

A
  • regulates enforcement and redemption procedures
33
Q

Enforcement of standard securities?

A
  • Principal remedy is sale
  • calling up notice needed (s19 CFR(S)Z 1970)
  • person leaves = done
  • doesn’t leave = court action of Order for removal
34
Q

Do standard securities need to be in writing?

A

Yes

35
Q

What two forms can they be writing in?

A
  • Form A (loan plus security)

- Form B (security only

36
Q

What is a lien?

A

real right to retain property until the discharge of obligations

37
Q

What is a special lien?

A

Retention until performance of specific obligation/ specific debt

38
Q

What is a general lien?

A

Law permits retention for more than one obligation : all sums owed

39
Q

What is essential to lien’s?

A

Possession

40
Q

Lien’s mainly concern corporeal property

A

Wilmington Trust Company v Rolls Royce

41
Q

But can also concern land

A

Binning v Brotherstones

42
Q

Enforcement of a lien?

A

Court Authority to sell unless debtor consents

43
Q

Landlords hypothec applies when?

A

When there is a default in commercial rent payments

44
Q

Enforcement of landlords hypothec?

A

Apply to court for power of sale

Scots Property Law (13 decks)

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