Scots Property Law Flashcards
Define a ‘liferent’
The right to use someone else’s property for life.
What are the obligations of a liferent?
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).
Compare a proper liferent and improper/trust liferent.
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.
Define ‘negative real burden’.
An obligation NOT to do something, such as an obligation not to have pets, or not to paint your house a bright colour.
Define a ‘servitude’.
A real right that allows a landowner to enter or make limited use of neighbouring land, e.g., a right of access.
Define a ‘subordinate real right’
A real right held by someone other than the owner.
Name all 5 subordinate real rights (fixed list)
a) Servitude
b) Negative real burden
c) Proper liferent
d) Lease (of land)
e) Right in security
Is a personal right a real right?
No, a real right is only a right in a THING, not against a person.
What is the ‘prior tempore potior jure’ rule?
Earlier the right, the stronger it ranks. First bank registering a security against someone is the first to be paid back.
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?
Anna = principal real right of ownership.
Brilliant Bank = subordinate real right of security.
Colin = right of lease.
Name four essentials of a lease.
Parties, property, rent, and duration.
Define a right in security.
Any right a creditor chooses to hold to ensure payment or satisfaction of someone’s debt.
What is the difference between secured loan and unsecured loans?
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.
Difference between a real security and a 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.
Who owns ownerless property?
The Crown.
Explain the case 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.
Can you abandon your right of ownership in land?
No.
What is ‘jus in re aliena’?
A right to use or enjoy someone else’s property.
Explain the case of Ali v Serco Ltd 2020 SC
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.
Explain the case of Salvesen v Riddell [2013] UKSC
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.
Explain the case of Karl Construction Ltd v Palisade Properties Plc 2002 SC
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.
Explain the case of South Lanarkshire Council v McKenna 2013
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.
Explain the case of McDonald v McDonald 2016 UKSC
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.
Define security of tenure.
Right to continue living in or using rented property (renew lease except in exceptional circumstances).
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.
Define principal real right
Main right - real right of ownership.
Define a subordinate real right.
It is a real right held by someone other than the owner.
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
Do subordinate real rights go away when ownership changes?
No, right in land not against a person. SRR are like superglue.
Define a servitude.
A servitude is a real right that allows a landowner to enter or make limited use of
neighbouring land.
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.
Define a proper liferent.
Right to use someone else’s property for life.
Can companies be granted liferent?
No, they cannot die.
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.
What is an improper/trust liferent?
Trustee has ownership so the original owner doesn’t have title anymore.
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.
What are the essentials of land leases to be valid
parties, property, rent, and duration
Define a right in security.
Any right a creditor chooses to hold to ensure payment or satisfaction of someone’s debt.
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.
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.
Distinguish between voluntary and involuntary security.
- Voluntary is when its decided and agreed on.
- Involuntary is enforced by law, implied.
Who does ownerless property belong to
The Crown if its lost, abandoned, or death with no successor.
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.
Can you abandon a right in ownership of land?
No
Name the 5 methods of original acquisition.
- Occupation (occupatio).
- Accession (accessio).
- Specification (specificatio).
- Commixtion and confusion (commixtion and confusion).
- Positive prescription.
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.
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.
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.
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).
Can you contract out of accession?
No
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.
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.
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.
If you carry out accession as the owner of the accessory without consent are you entitled to compensation?
No
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.
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.
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.
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.
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.
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.
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’.
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.
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.
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.
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.
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.
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.
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.
Does positive prescription only occur in land?
Yes
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.
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.
