DISPOSITIONS

DISPOSITIONS

Main clauses and what they do
1. standard form is a unilateral obligation
  1. runs inname of, is executed by grantor (disponer), alone
    1. Contains: inter alia - identification of the parties, consideration, identification of subjects
      1. entry clause, stating when disponee can enter into possession & warrandice clause - this warrants the title
        can be subdivided into narrative, dispositive, burdens, entry, warrandice, testing clause resctively
NARRATIVE CLAUSE
1. name and designation of grantor
  1. description of his/her status
    1. normally 'heritable proprietor of subjects hereinafter disponed'
    2. implies the grantor is registered owner
      1. grantor must have title and capacity
        if the disposition is to be effective as a title to disponee
        not necessary for land to fall within personal estate of grantor
        may hold property as trustee or some other representative capacity
        relevant to consider his powers e.g. as trustee
        for to effectively convey must be registered proprietor or have right to complete title
        example - 'I George Smith, heritable proprietor of heritable subjects and others hereinafter disponed, etc
DISPOSITIVE CLAUSE
1. divests seller of title and invests purchaser of title
  1. contains formal discription of property
    1. normal to end with following 3 clauses
      1. 1) the whole rights, parts privileges and pertinents relating to the subjects
        2) the whole fixtures and fittings, therein and thereon
        3 my whole right, title and interest, present and future, therein and thereto
      2. function of these catch all clauses, ensures respectively
        1) purchaser acquires all rights to all property sold, also rights over neighbouring properties to enjoy property in full
        2) sale includes buildings, fixtures, moveables which have built or acceded to the property, and all moveable fittings are included
        3) whole rights of seller are transferred to the purchaser
        including future rights arising
        a full and unreserved divesting of the seller and investing of the purchaser
BURDENS CLAUSE
1. How and why burdens are imposed generally (including deeds of condition)
  1. contain contractual burdens which run with the land
    1. always with and under the burdens
      1. real conditions and others specified and contained in the said disposition in my favour
      2. in which any burdens or express servituteds are stated either by repitition in full or by reference to the documents which created them
        such inclusion doesnt cerify that they are still valid or applicable
        for these issues, purchasers solicitor must use his judgement
ENTRY CLAUSE
1. states actual date of entry and occupation of the disponee
  1. entry clause warrants entry to property at specific time
    1. usually on the date the price is payable
    2. Usual for this clause to state entry is given with vacant possession and actual occupation
      1. other words: no part of the property is subject to let or occupation by any other party
WARRANDICE CLAUSE AND ITS THREE VARIATIONS
1. Guarantee of title by predecessor is transmissable to new owner
  1. Warrandice clause follows on from obligation to give good and marketable title in the missives
    1. represents personal guarantee by disponer
      1. will indemnify disponee against any loss/damage in value
        disponees real right if there is complete or partial eviction from the property
        VARIATIONS
        1) absolute warrandice
        unrestricted guarantee of title
        2) fact and deed warrandice
        normally given by a trustee or executor
        they will not act prejudicially to the purchasers interests
        3) simple warrandice
        guarantee grantor of disposition hasn't acted to prejudice guarantee
        normally used when property is being gifted
TESTING CLAUSE
1. purchaser completes, narrates place and date of signing of disposition
  1. records name and designation of witness(s)
    1. Reuquirements of Writing (Scotland) Act 1995
      1. s3(1) disposition by individual will be valid if signed by that individual
        the last page of any schedule or plan annexed)
        and same is witnessed by one witness to the signing
SPECIAL DESTINATION INCLUDING SURVIVORSHIP AND ITS PROBLEMS
1. disposition to A and B and survivor
  1. immediate conveyance of one half pro indivisio share to each of them
    1. coupled - substition of the survivor of them to succeed as substitute to one half pro indiviso vested originally in predeceaser
  2. historically title in joint names between husband & wife
    1. practitioners inserted survivorship clause
      1. survivorship destination is contractual
        cannot be evacuated by will or other testamentary writing
        Perrett's Trustees v Perrett
        survivorship clauses has no effect on the half of the property which is not conveyed
        number of awkward and sad family situations
        survivorship destination resulted in bizarre outcome
        never intended by the parties
        typcally occurs where parties separate or divorce
        matrimonial home taken in survivorship destination, then divorce
        wife conveyed her pro indivisio one haflf share & husband then dies
        held: disposition restricted in terms to wifes one half pro indivision
        result wife entitled to succeed husbands original share
        Gardiners Exor v Raeburn
        Following separation parties agreed inter alia to sell matrimonial home
        title in both names and survivor
        under agreement both relinquished rights of succession in each others estates
        held the agreement impliedly waived normal prohibition against conviction
        Redfern's Exors v Redfern
        husband, wife & survivor, husband sequestrated & died
        held wife to husbands one half share, subject to his debts
        Flemings Trustees v Fleming
        overruled Barclays Bank v McGreish
        special destination was held to be debt free

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