Shared ownership and Possession Flashcards
What are the two forms of shared ownership?
Common property and Joint property.
Define common property.
Ownership of property by two or more people each having a separate pro indiviso share (undivided share). It is a right in common to the property. Each can dispose of own share separately. On death, share passes to owner’s executors in the same way as any other property.
Define joint property.
Joint property only exists where persons are inter-related by virtue of some trust, contractual or quasi-contractual bond (Magistrates of Banff v Ruthin Castle Ltd ).
With agreement any use is possible. Co-owners do not generally make contracts to lay out property control, though they can. In circumstances in which the parties haven’t agreed, the law comes in.
Is unanimity or majority rule preferred in common property decisions?
Unanimity is generally preferred.
“In re communi melior est conditio prohibentis” (In common property the condition of the objector is better) (Bell). This means that if there is disagreement any co-owner can veto a proposed use.
What does the law say are the basic rules of common property?
Without agreement, law gives three rules:
(i) Each owner may use whole property;
(ii) Only ordinary uses are permitted;
(iii) No acts permitted that are prejudicial to interests of other co-owners.
Explain the first rule of common property.
Each common owner may use all parts of the property as they own the whole property, not just parts of it.
- Price v Watson
- Denholm’s Trs v Denholm
Explain the second rule of common property.
Only ordinary uses are permitted.
Carmichael v Simpson – Tenement building with shared close and stair and individual flat ownership. A general purpose had to be decided upon. As it was a close it was deemed to be an access purpose as a corridor but nothing interfering with access.
Explain the third rule of common property.
No acts prejudicial to other co-owners’ interests. Generally, financial interests to do with the value of other co-owners interests.
Bailey’s Exrs v Upper Crathes Fishing Ltd 1987 SLT 405 – Shared ownership of salmon fishing rights in river. UCF proposed to use their share to sell fishing rights on a time share. Held this wasn’t allowed. Not because of excessive use or exclusion but rather that is many people by a time share then there are more fishers and less fish reducing the value of the fishing land for BE.
This rule may also be expressed as not taking excessive benefit of property, however this is only true where it interferes with other owners uses.
Where repairs and alterations are proposed in common property, what does the law say?
Usual rule is that consent of other proprietors required, however, consent issues may arise. Consent is necessary to undertake repairs and upgrades no matter how minor (Rafique v Amin).
Where repairs and alterations are necessary in common property, what does the law say?
Special rule for necessary repairs – If it is necessary, any proprioter can carry it out, none can object and may be carried out by any proprietor (Bell) (Deans v Woolfson).
The only requirement of necessary repairs is that the issue is fixed; it does not have to be the most economically sensible option (Lacey 2020).
Miller v Crichton – Co-owners are bound to pay for necessary repairs.
When a party wishes to end the co-ownership of common property, they have an absolute right to do so.
True or False?
Absolute right to end relationship of co-ownership (subject to exceptions below). Nobody can be forced to remain in the co-ownership without their agreement. Under the law, you have an absolute right to have the co-ownership dissolved.
Upper Crathes Fishing Ltd v Bailey’s Exrs – Remedy sought in bad faith but court held that this didn’t matter.
When ending co-ownership of common property, what are the remedies?
Primary remedy division, unless ‘impossible’, in which case failing division and sale will take place. This is where the property is sold and the money from sale is divided between parties.
Thom v Macbeth – On expert evidence would have had a lower overall value by dividing it. Court held that if division adversely effects financial value of the property, it cannot be insisted upon and divide and sale will take place.
Does not apply to things “of common and indispensable use” (Bell).
What powers do the court have regarding common property remedies.
McKenzie v Nutter – Held court had the right to vary how much money M could get and held M would get no profits because she contributed nothing.
Scrimgeour v Scrimgeour – Mr & Mrs co-owned home but got divorced. Proposed that court order the court transfer property rights to her to cover debt and court agreed. (Berry v Berry – Lord Ordinary refused remedy as it is very circumstantial.)
What are the restrictions on remedies for matrimonial homes?
Matrimonial Homes (Family Protection) (Scotland) Act 1981 c.59, s. 19 – Provides that where you have a married couple occupying a matrimonial home which is co-owned the court has discretion not to allow sale, to suspend the right or to only allow it on specific conditions.
- Milne v Milne
Explain ‘possession as a protected state’.
Possession may not be recovered by violence, but by order of law…a violent, clandestine, and unlawful possession may not be troubled though there be an evident right (Stair).
As the possessor you are protect. If someone else has possession of your property and under the law, you yourself may not use force to recover the possession.
- Matheson v Stewart
