Scots Property Law Flashcards
1
Q
Define a ‘liferent’
A
The right to use someone else’s property for life.
2
Q
What are the obligations of a liferent?
A
Responsible for burdens and debts related to the property.
Must preserve the substance of the property (leave it in a leasable state for the owner before you die).
3
Q
Compare a proper liferent and improper/trust liferent.
A
Proper = 2 real rights; owner has ownership (fee), liferenter has subordinate real right of liferent.
Improper = 1 real right and at least 2 personal rights; trustee has ownership, liferenter has personal right against trustee, ‘owner’ has personal right against trustee.
4
Q
Define ‘negative real burden’.
A
An obligation NOT to do something, such as an obligation not to have pets, or not to paint your house a bright colour.
5
Q
Define a ‘servitude’.
A
A real right that allows a landowner to enter or make limited use of neighbouring land, e.g., a right of access.
6
Q
Define a ‘subordinate real right’
A
A real right held by someone other than the owner.
7
Q
Name all 5 subordinate real rights (fixed list)
A
a) Servitude
b) Negative real burden
c) Proper liferent
d) Lease (of land)
e) Right in security
8
Q
Is a personal right a real right?
A
No, a real right is only a right in a THING, not against a person.
9
Q
What is the ‘prior tempore potior jure’ rule?
A
Earlier the right, the stronger it ranks. First bank registering a security against someone is the first to be paid back.
10
Q
Anna owns a farm, which she bought after taking out a “mortgage” (a secured loan) from Brilliant Bank plc. Anna then leases the farm to Colin. How many real rights are there?
A
Anna = principal real right of ownership.
Brilliant Bank = subordinate real right of security.
Colin = right of lease.
11
Q
Name four essentials of a lease.
A
Parties, property, rent, and duration.
12
Q
Define a right in security.
A
Any right a creditor chooses to hold to ensure payment or satisfaction of someone’s debt.
13
Q
What is the difference between secured loan and unsecured loans?
A
Secured are backed by collateral, which means that if you don’t make payments, your lender can seize that asset.
Unsecured don’t require collateral but may charge higher interest due to added risk for lender.
14
Q
Difference between a real security and a personal security.
A
Real security is in real property such as land or a house. A security interest in immoveable property.
Personal security is in personal moveable property such as furniture or cars.
15
Q
Who owns ownerless property?
A
The Crown.
16
Q
Explain the case McKenzie v Maclean 1981
A
Supermarket abandoned beers in skips and Maclean stole and drank them. Was then charged with stealing from the Crown because the beers were under their ownership. Abandoned property.
17
Q
Can you abandon your right of ownership in land?
A
No.
18
Q
What is ‘jus in re aliena’?
A
A right to use or enjoy someone else’s property.
19
Q
Explain the case of Ali v Serco Ltd 2020 SC
A
Rejected asylum seeker evicted without court order. Claims protection of Scots legislation requiring notice. Issue not severe enough to violate her article 3 and 8 ECHR right. Serco was not acting as a hybrid organisation by performing its contract so did not violate article 8. Appeal rejected as support available for failed seekers.
20
Q
Explain the case of Salvesen v Riddell [2013] UKSC
A
Section 72 of agricultural holdings Scotland act 2003 (rights where tenant Is a limited partnership and not entitled to security of tenure). Appellant argues incompatible with art 1 ECHR for protection of property and cannot invoke s 73 to hold lease.
Breach of the convention right and the court judgement was suspended for 12 months so gov could rectify error.
21
Q
Explain the case of Karl Construction Ltd v Palisade Properties Plc 2002 SC
A
Building contract, KCL left site before completion due to payment disagreement. Palisade hired another contractor to complete and sued KCL for costs incurred.
Court ruled in favour of PP as contract did not contain provision allowing KCL to stop work due to non-payment. KCL was obligated to complete the work regardless so breach of contract. Importance of clear contractual terms.
22
Q
Explain the case of South Lanarkshire Council v McKenna 2013
A
Tenancy began 2004. McKenna gets antisocial behaviour order 2007. 2009 Council convert her tenancy to short secure lasting 6 months. Council were the landlords. Then served notice of eviction. Sheriff found eviction is valid and lawful, but McKenna argued that the eviction violated art 8 protecting private life.
Landlords not obligated to give reason for eviction, so cannot guarantee it doesn’t violate her right to private life (relating to behaviour order). Court found the damage was not severe enough to violate human right, and legal obligation to give reasons in advance can be read into the legislation. Eviction was reasonable and lawful.
23
Q
Explain the case of McDonald v McDonald 2016 UKSC
A
Appellant has personality disorder. Parents purchased property using a loan and granted appellant multiple assured shorthold tenancies. Loan payments not made; lender appointed receivers who was seeking possession of the property in the name of the parents. The daughter wanted to extend the time for her to leave from 14 days to 6 weeks. She argued proportionality which is a human rights concern.
This would be invoking the human rights against private individuals whereas the human rights convention is intended to enforce rights against the state (public authority). Appeal rejected.
24
Q
Define security of tenure.
A
Right to continue living in or using rented property (renew lease except in exceptional circumstances).
25
Distinguish a real right and a personal right.
Real right: is a right in a thing.
Personal right: is a right against another person – contract and delict. Not a real right.
26
Define principal real right
Main right - real right of ownership.
27
Define a subordinate real right.
It is a real right held by someone other than the owner.
28
Name the fixed list (5 types) of subordinate real rights.
a) Servitude
b) Negative real burden (compare with positive real burdens which are “real
obligations”).
c) Proper liferent
d) Lease (of land)
e) Right in security
29
Do subordinate real rights go away when ownership changes?
No, right in land not against a person. SRR are like superglue.
30
Define a servitude.
A servitude is a real right that allows a landowner to enter or make limited use of
neighbouring land.
31
Define a negative real burden.
A negative real burden is an obligation NOT to do something, such as an obligation not to have pets. Must have a burdened and benefitted property.
32
Define a proper liferent.
Right to use someone else’s property for life.
33
Can companies be granted liferent?
No, they cannot die.
34
What are you obligated to do when living in a liferent?
- Responsible for debts/burdens related to property (tax, repairs).
- Must preserve the substance = leave it in a leasable state so owner can enjoy property once you die.
35
What is an improper/trust liferent?
Trustee has ownership so the original owner doesn't have title anymore.
36
Name the rights involved with improper and proper liferents.
Proper liferent = 2 real rights; owner has ownership (fee), liferenter has subordinate real right of liferent.
Improper/trust liferent = 1 real right and at least 2 personal rights; trustee has ownership, liferenter has personal right against trustee, ‘owner’ has personal right against trustee.
37
What are the essentials of land leases to be valid
parties, property, rent, and duration
38
Define a right in security.
Any right a creditor chooses to hold to ensure payment or satisfaction of someone’s debt.
39
Distinguish between secure and unsecured loan
- Secured loans are backed by collateral, which means that if you don't make payments, your lender can seize that asset.
- Unsecured loans don’t require collateral but may charge higher interest due to added risk for lender.
40
Distinguish between a real and personal security.
- Real security is in real property such as land or a house. A security interest in immoveable property.
- Personal security is in personal moveable property such as furniture or cars.
41
Distinguish between voluntary and involuntary security.
- Voluntary is when its decided and agreed on.
- Involuntary is enforced by law, implied.
42
Who does ownerless property belong to
The Crown if its lost, abandoned, or death with no successor.
43
Describe McKenzie v Maclean 1981
Supermarket abandoned beers in skips and Maclean stole and drank them. Was then charged with stealing from the Crown because the beers were under their ownership. Abandoned property.
44
Can you abandon a right in ownership of land?
No
45
Name the 5 methods of original acquisition.
1. Occupation (occupatio).
2. Accession (accessio).
3. Specification (specificatio).
4. Commixtion and confusion (commixtion and confusion).
5. Positive prescription.
46
Describe occupation (acquisition)
This could be acquisition or res nullius (things belonging to no-one), property not yet the object of any rights to people. E.g., taking a rock from the beach or rehabilitating and keeping a hurt rabbit.
47
Describe Pierson v Post 1805
Man chased fox for long time, eventually fox got tired and slowed down so another man came in and took it. Does the chaser or catcher own it? Court ruled it’s the person that actually caught it.
48
Describe Valentine v Kennedy 1985
Fishing body of water owned by person. Rainbow trout escaped downstream so people fished them downstream so they did not have to pay. However, rainbow trout not native to Scotland so not native animal and belonged to the people that fished them.
49
Define accession (acquisition)
Joining of two things to make a new thing. It requires Physical union. Functional subordination (one part of the accession must be useless without the other part/could not exist by itself. Degree of permanency (can’t be immediately or easily removed).
50
Can you contract out of accession?
No
51
Describe Shetland Islands Council v BP Petroleum Development Ltd
SIC granted a lease to BP for a site to construct an oil terminal. Lease contained clause saying any buildings/structures made on site becomes property of SIC upon termination of lease. BP made oil terminals and tanks. Not physically attached to the land but held in place by own weight. Court rejected case as tanks are not fixtures and therefore don’t belong to SIC. Accession only works if something is permanently attached. This was missing, so accession did not occur.
52
Describe Brand’s Trs v Brands Trs (1876)
Case questioned the permanence rule. Mining equipment installed in leased premises by tenant. Accession happens automatically and doesn’t matter if the person who acceded the equipment to the land was a tenant, accession has still taken place. Court ruled it changed moveable property into heritable (immoveable) property. However, can reclaim what he made and remove property at the end of the lease.
53
What is the legal result of accession
- Accessory becomes part of the principal – new right of ownership created. You own both things. And once accession happens, the legal result isn’t reversed. You still own the two things.
- Irreversible extinction of title of owner of accessory.
54
If you carry out accession as the owner of the accessory without consent are you entitled to compensation?
No
55
Describe Christie v Smiths Exr 1949
a summerhouse was built between a farmhouse and a garden wall. The ground was levelled but the building was not adhered to the ground. Farm was sold, and when purchaser moved in they discovered a gap where the summerhouse used to sit when they decided to buy it and requested it to be returned. Seller argued it was moveable so could be removed, purchaser says it filled the space so should be heritable. Court agreed and ordered the house be returned to the land.
56
Describe Assessor for Fife v Hodgson 1966
Valuation (gross annual) of a property at No 5 Grampian Gardens. Assessor adds value because of the central heating system installed rather than a traditional boiler. The Court decided that the heating system is considered heritable and comes with the house, as it’s essential for proper use of the property. Although its removable, the design and installation did satisfy accession.
57
Describe Cochrane v Stevenson 1881
Set of 3 paintings in a house. One of the 3 paintings were embedded in the house inside a wooden panel in the room where the other two paintings were hung. The paintings were a set and therefore intended to be looked at together. The Court decided on this basis that they were moveable and heritable.
58
Describe Baskabelle Ltd v Laird 2006
The plaintiffs purchased three fields of agricultural land from the defendant. They sought to harvest and sell a crop growing on the land at the time of purchase. Defendant claimed right to harvest, as industrial growing crops are moveable so not part of the heritable property sold to the plaintiffs. Court agreed and the defendant was permitted to go back and harvest it as he still had the right.
59
Describe Hetherington v Galt 1905
A portion of ground was split into two, with a line of trees deviating no further than 8 inches on either side were planted with intention to establish plot boundaries. Respondent later claims the trees are his property and within his property boundary because he wanted to cut them down. Court decided trees are common property, and the deviation was minimal and unaffecting of either plot measurement. Interdict granted ad he was not allowed to cut them down.
60
Describe L Cohen Motors v Alberts 1985 (2)
Are tyres of a truck acceded to the truck? Court held that tyres are not physically and mechanically connected to the truck in a way that loses their independence. Therefore, they are not an accessory.
61
Define specification (acquisition)
Specification occurs where a brand new, different thing is made of parts belonging partly or entirely to another person.
It must create a nova species – defined as ‘new species’.
62
Who has title of ownership after specification occurs (acquisition)
Manufacturer gains ownership if the change to nova species is irreversible e.g., a boat made from planks owned by someone else. Can be cut back down to wood, but not in the way it originally was. Cannot get your planks back.
If it is reversible, ownership still belongs to the owner of materials.
63
Describe Wylie & Lochhead v Mitchell 1870
Contracted with hearse-maker for a hearse and they contributed items and personalisation’s. Maker declared bankruptcy and the hearse was unfinished. They demanded the hearse be returned at its current state as they owned ‘ingredients’ and the company refused. However, they were reimbursed for what they paid. The court agreed, and said the hearse remained property of the bankrupt estate of the Maker and they were not entitled to claim ownership. This is because the items cannot be returned to their original state and the hearse is claimable for creditors. Appeal dismissed.
64
Describe International Banking Corporation v Ferguson Shaw & Son 1910
Oil belonging to someone else was used to make margarine. Court ruled that specification had operated, and FS were entitled to sell the margarine and they were entitled to a money claim for the value of the oil they supplied. The cost of the oil had to be paid, but no more.
65
Define commixtion (acquisition)
- Commixtion is the irreversible mixing of solid items substantially alike e.g., two farmers fields of sheep get mixed up.
- Commixtion does not operate if there are identifying features on them.
66
Define confusion (acquisition)
- Confusion is the same but for liquids, e.g., two whiskies being mixed together.
- Must be mixed or fused.
- Mixing soda water with whisky would be accession. Not confusion because they are not sufficiently alike.
67
What is the legal result of commixtion and confusion?
- Common property in proportion to the value of the constituents materials. Each farmer has a one-half share in the sheep.
68
Define prescription (acquisition)
- The creation or extinction of rights through the passing of time.
- If a right is created, the prescription is positive.
- If a right is extinguished, the prescription is negative.
69
Does positive prescription only occur in land?
Yes
70
What is required for positive prescription to occur
- Kept for ten years open and peacefully.
- Recording/registration of a deed.
- Without judicial interruption.
- Role of good faith when registering.
71
Describe Hamilton v Mcintosh Donald Ltd 1994
Possession was dispute over a piece of moorland. Owner did not fence the land or do anything with it. Boys use it. The question was what acts were sufficient to constitute possession of the land. The acts themselves, shooting, drilling, boreholes, movement of roads, shooting, dumping of rubbish etc, were not sufficient individually but cumulatively to indicate possession. All of these acts were isolated across the period of 10 years, but were cumulatively sufficient. Gained ownership.
72
Describe Stevenson-Hamilton Executors v McStay 2001
Fraudulently acquired ownership of a piece of ground which previously belonged to the pursuers. Court ruled overt/clear/ possession is essential for prescriptive claims. They did not have that as it was fraudulently acquired.
73
Describe Wallace-Martinex v Nisbet 2023
appellants own two flats joined by installed internal staircase to form a single family home in a tenement building. One pursuer’s disposition was registered in sasines in 1990. The two pursuers claim exclusive ownership of back garden and rear wall. Court refused and said it did not prove prescriptive possession and that the right was no more than common ownership to be shared with the new tenants.
74
What is the negative prescription period for personal rights and which section does it come from?
5 years PLSA s6
75
What is the negative prescription period for subordinate real rights and where are they found?
20 years PLSA s8
76
Distinguish ownership and possession
You can possess something without owning it and own it without possessing it e.g., theft
77
What is the negative prescription period for real burdens?
5 years
78
What is the legal effect of positive prescription on a void title?
Title becomes absolutely good and they become owner
79
Define derivative acquisition
80
Marcus decides to lend his laptop to Adele because her laptop is broken and she has an essay deadline to meet. He takes it round to her flat to drop it off. Adele thinks that Marcus is giving her the laptop as a gift for her birthday, which is the next day. Has ownership transferred?
No, no mutual intention (didn't agree on the purpose of the gift)
81
Sinitta buys a framed photograph of a sunset over the River Tay and intends to give it to her friend, Elspeth, for Christmas. Sinitta forgets that she has bought the photograph and buys Elspeth a Clarice Cliff teapot, which she posts to Elspeth at the beginning of December. Has ownership of the photograph transferred?
No, because although mutual intention there has been no delivery of the photograph so ownership has not been transferred.
82
Alister delivers two Rolls Royce Merlin aeroplane engines to Geoffrey, who is a mechanic and restorer of vintage aircraft. It is agreed between them that by restoring one of the engines for Alister, Geoffrey will become owner of the second engine. When does ownership (probably) transfer?
At the time restoration is complete.
83
Define patrimony
a persons asset and liability.
84
Can there be multiple rights of ownership in a thing?
No, transfer is instantaneous.
85
Describe Sharp v Thomson 1997
a dispute over the ownership of a house. Thomsons agreed to sell their house to the Sharps but before the sale was completed the Thompsons were declared bankrupt. The trustee in bankruptcy said the house is part of bankrupt estate and should be used to pay off debts. Court held the house actually belonged to the Sharpes. Ownership transfers when contract of sale is concluded, not payment or delivery of title deeds. This was concluded before the bankruptcy, so the sharps title of ownership is valid.
86
Describe Burnetts Trs v Grainger 2004
Burnett sold flat to Grainger. Once agreed, Grainer failed to register the disposition of title to the flat. Burnett was then bankrupt, and his trustee registered the notice of title since Grainger never did so he could collect it for creditors. Grainger argued unjustified enrichment. Court dismissed the appeal. The trustee acted well within law and he was entitled to take advantage of his mistake of not registering his ownership.
87
Define the nemo plus rule
You cannot give a better title than you have yourself.
88
Define void title
If a deed is void, it does not pass title and is unenforceable.
89
Describe 2 ways void titles occur
- Can either happen because the granter didn’t have title so cannot give title – nemo plus.
- Granter had title but fatal defect in the transfer (conveyance); force and fear or lack of transactional capacity.
90
How can a voidable title be cured in land?
Grantee must acquire thing in good faith and give value (not be a donee) for the thing transferred.
91
Define voidable title
Voidable titles are valid but can be made void upon challenge because there is good reason it should not be absolutely good.
92
When do voidable titles occur?
- Fraud.
- Off-side goal occurs (valid agreement in place and you attempt to circumvent it even though ownership passed to them).
- When the granters title was also voidable or can be cured to absolutely good.
93
Define missives
A contract of legally binding letters of negotiation and agreement.
94
What is the 'external act' when acquiring title?
Registering the disposition/new right
95
The Sasine Register is a collection of .. and the Land Register is a register of ...
a. Deeds
b. Titles
96
Farmer Brown dispones 50 acres to Farmer Green. Farmer Green records the disposition in the Register of
Sasines. However, Farmer Brown only owned 45 acres; the other 5 acres were owned by Farmer Yellow. How many acres are owned by Green?
45 (absolutely good title), 5 are void of title so no ownership. Just the 45
97
In the Land Register, what is contained in the title sheet for each property?
a. property section s 6
b. proprietorship section s 7
c. securities section s 8
d. burdens section s 9
98
What is essential for the transfer of ownership of land?
Registration
99
What is an inhibition?
A type of diligence that can be used by a creditor to prevent the debtor (who is also the inhibited party) from disponing (transferring) their heritable property to anyone.
100
The date of settlement is...
the date on which a disposition is delivered and the purchase price is paid
101
In a contract of sale, what type of warrandice is implied and what does it mean?
Absolute warrandice - a guarantee that the grantee will acquire ownership and a guarantee that there are no onerous or unusual conditions.
102
Sale or not a sale - - Rita gives Jon a book for his birthday
No sale, no monetary transaction.
103
Sale or not a sale - - Billie has a car but wants a van and Georgia has a van but wants a car so they decide to swap vehicles.
NOT A SALE, NO MONETARY TRANSACTION. (Swapping things is called a barter)
104
Sale or not a sale - - Nadia wants to buy a puppy but does not have enough money. In exchange for the puppy, Eoin, the breeder, agrees to accept £2,000 in cash and Nadia’s first edition of Harry Potter and the Philosopher’s Stone.
IS A SALE, MONETARY TRANSACTION.
105
Describe s5 of the sale of goods act
Existing or future goods - Goods that are already made or to be made. Did the goods exist at the time the contract was made?
106
Describe s 61 of the sale of goods act
Specific (unascertained) goods - Goods that are identified and agreed upon. Can we point at them? Yes.)
107
Describe s 16 of the sale of goods act
Unascertained goods - Bought 1000 cans of Irn Bru. Can’t point at them. You can’t go to the warehouse and point at the individual 1000 cans amongst 10000. This means ownership cannot transfer without a contract.
108
Describe sectiion 20a of the sale of goods act
Undivided shares in goods forming part of a bulk - Buying a kilo of wheat out of 20 kilos of wheat. 1/20th share. Contract for 5 years supply of apples. Unascertained goods so ownership cannot pass, so this section protects those who have suppliers affected by sequestration.
109
When does ownership pass according to s 17 of the sale of goods act
- When the parties intend it to pass
110
What if it is not clear when ownership was intended to pass under sle of goods act?
Rule 1. unconditional contract for specific goods in deliverable state – when the contract is made
Rule 2 – contract for specific goods but seller has to do something to make the goods deliverable – when the thing is done and the buyer has notice that the thing has been done
Rule 3 – contract for specific goods but the seller has to do something to ascertain the price (e.g. weigh or measure) – when that thing is done and the buyer has notice that the thing has been done
Rule 4 – if goods supplied on approval or sale or return – when the buyer tells the seller she approves or accepts them or, if the buyer does not reject them but remains silent, when the time for rejection or a reasonable time has passed
Rule 5 – if the goods are future goods or unascertained – when the goods exist and are in a deliverable state and are appropriated to the contract with the assent of the buyer or seller
OR
If the goods form part of a bulk – the bulk is reduced to the agreed quantity.
111
Jack agrees to sell his bicycle to Laura. The price is agreed and delivery is arranged for the following week with cash to be paid on delivery. When does ownership pass in this case?
When parties conclude contract rule 1 s18 because the parties intentions are unclear.
112
Mandy agrees to buy Alison’s entire crop of potatoes currently growing on
Alison’s farm. Mandy and Alison agree that Alison will lift the potatoes, pit them
and deliver them to Mandy’s warehouse. Unfortunately, Alison goes bankrupt
after making the contract and after the potatoes had been put into the pits.
Alison’s trustee in sequestration claims that the potatoes form part of Alison’s
bankrupt estate. Mandy disagrees and argues that ownership passed when the
contract was made. When does ownership pass in this case?
When the potatoes had been put into the pits
113
Norman wants to purchase 40 tonnes of coal from the local mine for his traction engine. The price is agreed and Norman pays a 20 per cent deposit. The mine agrees to deliver the coal to Norman. At
the time of the contract being made, the mine has 80 tonnes of coal mined and in a heap awaiting buyers. Has ownership transferred?
No
114
What are the steps in establishing an 'offside goal'
1. A pre-existing personal right between A and B (this
must be a personal right to obtain a real right).
2. A transfer from A to C in breach of the pre-existing
personal right between A and B.
3. C must have knowledge (actual or constructive) of
the obligation to B OR C is a donee.
4. The transaction being challenged must be a
voluntary act.
115
Describe Rodger Builders Ltd v Fawdry 1950
Seller enters into separate and competing sale contracts with different purchasers. The title in favour of the eventual purchaser was contested and reduced on the grounds that the eventual purchaser knew of the earlier sale contract in favour of the first purchaser and had not independently investigated its status. Fawdry wanted to sell estate and made deal with Rodger, paid late so gave estate to someone else. CONTRACT WASN'T VALIDLY TERMINATED SO CONTRACT VALID FOR RODGER. Ownership given back to Fawdry.
116
Do offside goal rules apply in involuntary transactions?
No. You need to know there was a pre-existing right and agreement.
117
What is common ownership?
- Take title to property in ‘joint names’.
- Moveable property in home of co-habiting couples.
- Common areas in housing development or tenement (corporeal pertinents).
118
What is the legal effect of common ownership
- Distinct pro-indiviso shares in the whole.
- Presumption of equal shares.
- Share passes into co-owners estate on death.
119
Describe joint ownership
- Trust property where more than one trustee.
- Assets of unincorporated associations.
120
What is the legal effect of joint ownership
- Title is unitary.
- Title of joint owner extinguished on death or resignation from office, continues to vest in remaining trustees.
- Ownership in club assets continues only so long as individual remains a member.
121
What is the every inch rule?
You can make use of every inch of the building. Can’t exclude other co-proprietors from common areas without consultation of everyone. Everyone shares one parking space, you agree that you get turn about/ first come first serve, a month each. If a new person moves in, this would need to be renegotiated. Rules don’t last past previous owners.
122
Describe Carmichael v Simpson 1932
Storage of items in tenement closes (stairwell). Wheelchair was blocking passage and was held not to be an ordinary use as its for passage not storage.
123
Describe Baileys Exrs v Upper Crates Fishing Ltd 1987
You can own salmon fishing rights separately to owning the land. Treated as being a second tenement. They owned the fishing rights alongside Mr Bailey (1 half each pro-indiviso) but they wanted to sell out to share-holders for the right to fish with one rod on week 32. Baileys were not happy about this – the two parties already had an arrangement that they would fish themselves or allow other people to fish on their behalf on certain weeks. It could negatively affect Baileys interest in the company as it is much less flexible. “One co-proprietor of salmon fishings, a company, issued shares giving “time sharing” rights in the company's interest as co-proprietor of the fishings. The co-proprietors petitioned for interdict against the company issuing such shares. In seeking recall of an interdict pronounced ex parte, the company argued that interdict was not an appropriate remedy in a dispute between co-proprietors, the
only remedy being an action of division and sale. Held, that interdict was a competent remedy in a dispute between co-proprietors; and, on a consideration of the balance of convenience, motion for recall of interim
interdict refused.”
124
What are the 6 rules of possession/use of common property
1. every inch rule.
2. ordinary uses only (nothing weird or annoying).
3. no excessive benefit (equal share don't take advantage).
4. repair and alterations (unanimous consent).
5. effect of death/insolvency of co-owner (the share forms part of deceased's state).
6. juridical (legal) acts.
125
Describe Menzies v MacDonald 1854
Two co-proprietor but one co-proprietor had conveyed his shares to third party who claimed similar rights as to what party who sold it to him had. Party 1 rejected as he went from sharing with one to sharing with two. Court had allowed the split.
126
How to identify a tenement?
At least 2 co-owners. Tenements are divided horizontally into flats.
127
Distinguish between a terrace and a tenement.
Terrace - divided vertically.
Tenement - divided horizontally.
128
What are the 9 scheme rules?
1. scope and interpretation.
2. decision-making procedure.
3. decision-making topics.
4. scheme costs.
5. scheme cost redistribution.
6. procedural irregularities.
7. emergency maintenance.
8. enforcement.
9. giving notice.
129
Describe the cadastral map and what section to find it
maps out legal title boundaries. Layered over OS map. A cadastral unit is a single plot of land. ss 11-13
130
Describe the title sheet record and where to find it
each registered plot of land has a title sheet (s 3(1)). Section 3(3) is the title. Section 4 is the title number. ss 3-10.
131
Describe the archive record and where to find it
copies of all submitted documents per application. s 14
132
describe the application record and where to find it
pending applications. s15
133
Zelda owns Burnside Farm. She is selling it to Albert. On 1 October she delivers Albert a disposition. On 3 October Albert submits it to the Keeper for registration. The Keeper is busy and can't deal with Albert's application immediately. He finally deals with it on 30 November.
* On 30 November, the Keeper deletes Zelda’s name from the title sheet record and replaces it with Albert’s name.
* What is Albert’s date of registration?
30th November - Date of registration = date the application is accepted and entered into the application record.
134
What is the date of registration?
date the application is accepted and entered into the application record.
135
What is an advance notice?
helps prevent what happened in burnetts trustee v grainger. You can set a 35 day priority period for the protected deed to prevent someone else registering instead of you.
136
Can you register a non domino disposition in the land register?
yes but you must reasonably attempt to find owner or notify crown. Before application, must have been in possession of the land for at least one year and then once the 10 year prescription period has passed, the title of ownership passes.
137
Define non domino
Ownerless/no owner.
138
Define intimation
A warning to someone about their legal obligations or have penalties.
139
Describe the process of derivative acquisition of an incorporeal moveable
1. The right to be paid a sum of money.
2. Contract.
3. Transfer by assignation.
4. Intimation / registration.
140
Describe the process of derivative acquisition of an corporeal (heritable) immoveable
1. Ownership of a house.
2. Missives.
3. Transfer via disposition.
4. Registration.
141
Describe the process of derivative acquisition of an incorporeal immoveable
1. Standard Security.
2. Contract.
3. Transfer via assignation.
4. Registration to relevant register.
142
Describe the process of derivative acquisition of a corporeal moveable
1. A book.
2. Contract.
3. Delivery transfers the ownership.
4. Delivery is the right.
143
Who are the three parties in assignation?
Assignor, assignee, debtor.
144
Does assignation need to be in writing?
Yes.
145
Describe process of assignation.
Patrimony A is due a debt. A assigns B the right to be paid on the register of assignations and debtor pays B.
146
Can liabilities and rights be assigned?
No, only rights.
147
What happens if a right to be paid is assigned to someone else and the debtor pays the original person?
No liability if good faith. Between the two patrimonies to resolve.
148
Describe -Scottish Widows Fund v Buist 1876
M takes out life insurance and lies on form as healthy but is an alcoholic with syphilis. Transferred right of payment to B or when he died and when he died the contract was void and no money was paid. Even though B never lied/was in good faith, M could not assign a better right than he already had. Dismissed.
149
Define assignatus utitur
Assignees are clothed with the rights of their principal.
150
Describe Binstock Miller & Co Ltd v E Coya & Co Ltd 1957
Seller sold orange juice to buyer with half payment. Balance of price assigned by seller to third party. Third party claimed back the balance as the orange juice was defective but seller refused. Third party then sued for the part payment (excessive use of right) and court says they can refuse to pay the rest but can’t claim back what they already paid.
151
Define prior tempore potior jure
First in time, greater in right
152
Which section of the TCSA defines benefitted and burdened property?
s1
153
Define a real burden
Obligation to do or not do something on your own land. Runs with land so lasts regardless of who owns the property.
154
Name the three types of real burdens
Affirmative real burden (burden to do something), negative real burden (to not do something), community burden (to not paint house unnatural colour, not to extend etc to match rest of housing estate).
155
What are the two essentials of servitudes being valid?
1. Praediality – like real burdens, servitudes must be sufficiently related to land.
2. Repugnancy with ownership – like real burdens, a servitude must not be repugnant with ownership (restriction so severe it renders the right of ownership in the burdened property essentially meaningless).
156
Describe Moncreiff v Jamieson 2007
Jamieson’s live at bottom of cliff, Moncreiff’s live higher up. J can’t access house by car so have been allowed by M to park their cars at their house. M later decide to build on their land which is where the carss are. J argued they have a servitude right of parking (different to right of access). Court ruled in favour of J, as the right of parking is not an independent right but ancillary (necessary to the enjoyment of) their right of access.
157
When does ownership pass according to section 17?
When the parties intend it to pass.
158
When does ownership pass on specific goods in a deliverable state?
When the contract is made/concluded.
159
When does ownership pass on specific goods but not yet deliverable (requires action from seller)
When the item is done and the buyer is told that the item is done.
160
When does ownership pass on specific goods but the price is not yet decided (need to weigh product to determine)
When the item is done and the buyer is told that the item is done.
161
When does ownership pass on goods that are supplied once approved by the buyer
When the buyer tells the seller she accepts them / when she doesn't reject them and doesn't say to the seller, ownership will pass when the rejection period is over.
162
When does ownership pass on future goods or goods that are unascertained
When the goods exist and are in a deliverable state and put into the contract
163
When does ownership pass on goods forming part of a bulk?
When the bulk is reduced to the agreed quantity.
164
What are the common law rules of transfer of derivative acquisition of corporeal moveable property
Delivery is necessary and ownership cannot pass before it. Mutual consent/intention is necessary.
165
What is the specificity principle?
Ownership cannot pass unless goods are specific (existed at the time the contract was made) or ascertained (buy 10kg of wheat out of a 50kg bag, ownership cannot pass util your 10kg has been separated and weighed out).
166
Is delivery necessary to obtain ownership under the Sale of Goods Act (corporeal moveables)
No, the parties can decide. Commonly happens after payment just in case the seller becomes insolvent so the buyer can get their product.
167
What is rule 1 of SOGA s 18?
In oral contracts, ownership passes (specific and deliverable goods) as soon as the contract is concluded and it is irrelevant whether payment or delivery is postponed.
168
What is the nemo plus rule in context of the Sale of Goods Act (corporeal moveables)
s 12 - where goods are sold by a person who is not their owner and sells them without owners consent, the buyer cannot acquire ownership title.
169
Fiona's clock is stolen and she later finds it in an antique shop. Shop owner bought it in good faith from Earls shop, and he got it in good faith directly from the theif. Shop owner demands payment from Fiona for the clock. Advise her, and advise the shop owner.
The nemo plus rule applies here. Theifs title is void, so is Earls, so is shop owners. She retains title so can get possession of the clock back without paying. Not fair on shop owner but is only fair for Fiona.
Shop owner must give clock but cannot demand payment. However, he had a warrandice from Earls so can claim damages for him (guarantee that his title is good).
170
What section of the Sale of Goods Act is warrandice found in?
s 12
171
What are the main exception to the nemo plus rule (Sale of Goods Act, corporeal moveables)
1. If a shop keeper agrees to sell to Maria, but forgets the next day and sells it to Nigel who is in good faith and physically takes the clock (classed as delivery) then Nigel gains ownership. Ownership passed to Maria on day one and then ownership passed to Nigel on day 2. MUST BE IN GOOD FAITH AND MUST BE A DELIVERY.
172
What happens if a seller of a corporeal moveable has a voidable title?
If someone fraudulently induces someone to sell their car, their title is voidable. If the title has not been avoided at the time of sale and they then sell the item to someone else, the buyer gains an absolutely good title as long as they are in good faith and don't know about the sellers voidable title.
173
Where to find the conditions of ownership in voidable titles in SOGA?
s 23 - if title avoided before sale, no good title for buyer.
if buyer buys in bad faith, no good title.
if title voided after sale or never, then good title for buyer.
174
What is the legal title result for selling a hire purchase car to someone else who is in good faith?
They obtain absolutely good title.
175
Name the 5 possible securities over corporeal moveables.
1. pledge - item is delivered to creditor as a security.
2. pawn - give something to someone for a loan and if you pay back w interest then you get the item back if not they keep the item (pawner holds item as a security).
3. lien - right to retain property e.g., hand in good for repair, company holds onto item until you pay for the repair. (company is holding security over you until payment)
4. hypothec - in land - landlord will hold renters possessions until tenant pays.
5. floating charge - can keep possession of the item but theres a floating security right over the thing to repay a debt.
176
Define a floating charge
can keep possession of the item but theres a floating security right over the thing to repay a debt.
177
Describe s 24 and s 25 of SOGA (exceptions)
178
Jack agrees to sell his bicycle to Laura. The price is agreed and delivery is arranged for the following week with cash to be paid on delivery. When does ownership pass in this case?
When the contract is made/completed - rule 1 s 18 SOGA. they never said when it would pass, so the rule states it happens when the contract is concluded.
