Fichas
Property
Fichas del conjunto (103)
- 1physical element of possession"exclusive physical control" (Reid)
- 2possession of moveablesholding and detaining them for our own proper use, and debarring others from them, either by detaining them in our hands, or upon or bodies, or keeping them in fast places, to which others had to easy access (Stair 1.1.11)
- 3possession of incorporeal propertyno physical presence so can't be detained (which is a requirement of possession)
but
Prescription and Limitation (S) Act 1973 s3(2) - servitudes can be possessed and then acquired by long use - 4mental element of possessionmust be detention of the body and detention of the mind for use (Stair 11.1.8)
must intend to exercise exclusive control of a thing and intend to possess it for one's own use - 5co-ownership distinction caseBanff Magistrates v Ruthin Castle Ltd:
Joint - not held in severable shares, ownership accresces to remaining trustees/members when any of the number resigns/dies
Common - owned by proprietors in distinct and severable shares (which can be individually disposed of or made subject of a security) - 6joint propertyright can't be disposed of or burdened by his own act
passes on death to remaining joint owners
trusts and clubs
no right to insist on division and sale - 7common interestdifferent from co-ownership
where owners of subjects owned in separate portions are united by a common interest resulting from proximity, whereby ownership of each is restricted in the interest of the orders - 8co-ownership land and moveablesMurray v Johnston 1896
same rules apply to land and moveables - 9common ownership tenement property examplesWhere A B & C own a three-storey tenement property, and each lives on a different floor, this does not mean that A owns the ground floor and B the first floor and C the second. It means that A B & C each own, pro indiviso, and have rights in, including the right to use, every inch of every floor
- 10common property anybody can leave the contractnemo in communion invitus deineri potest
- 11common property unanimityin pro indiviso ownership, the consent of all the owners is "requisite in the management, alteration, or disposal of the subject" (Bell) - later contradicts - "where parties can't agree, either the will or the majority rules, or the ordinary state must be continued"
court follow rule of unanimity - 12common property alterations and repairsgeneral rule - consent of all is required (Rafique v Amin 1997)
exception - de minimus non curat lex - law doesn't both itself with trifling matters (Barkley v Scott 1893 - repair deemed necessary) - 13common property 3 principles governing use1. each co-proprietor is entitled to use every inch of property (Denholm's Trs v Denholm 1984)
2. co-proprietors may only make ordinary use of property (Carmichael v Simpson 1932)
3. no single co-proprietor may obtain excessive benefit from the subject at the expense of others (Bailey;s Executors v Upper Crathes Fishing Ltd 1991)
Reid - 14common property remediesjudicial regulation, appointment of judicial factor, order for division or division and sale of property
- 15common property agreementmay be terminable at will
may have effect of qualifying or disapplying common law principles
not binding - enforceable as between themselves as a contract (Clydesdale Bank plc v Davidson) - 16common property real conditionsmay be used to regulate management and use of common property
- 17common property disputesPrice v Watson 1951
2 methods
appt of judicial factor and recourse to an action of division and sale
(Bailey's Executors - another remedy was allowed - interdict also used in Carmichael) - 18common property co-owner maintained exclusive possession...without consent of fellow owners must account to them for the profits of the period of unlawful possession
(Reid) - 19common property subdivision of sharesno limit
Menzies v MacDonalds 1854 - 20common property servitudesone co-owner can't constitute a servitude over the whole property, must be all owners - same with granting a lease
(Grant v Heriot's Tr) - 21common property getting out right to divisionright is necessary (Upper Crathes Fishings Ltd v Bailey's Executors 1991)
can be denied this right when personally barred or contractually obliged - 22common property getting out matrimonial propertyspouses have particular rights in matrimonial property according to 1981 act
- 23common property getting out valuecourts care about destroying economic value of things when dividing (Thom v MacBeth 1875 - physical division would adversely affect the value)
- 24common property getting out buying outone co-owner buying out the rest
modern courts say no
Berry v Berry (no 2) 1989
has been followed in Collins v Sweeney 2013 - 25ownership basic principleBrown v Lee Construction Ltd 1977
any intrusion is wrong whether it be transient or permanent
basic principle that owner's right of use of property is exclusive
can use interdict to prevent others from infringing the right - 26right of ownership extends...a coelo usque ad centrum (from heaven to the centre of the earth)
- 27restraints on ownership by statuteLand Reform (S) Act 2003
everyone has right to exercise rights for recreational purposes, to carry out a relevant educational activity, or to carry on commercially for a profit (s1(3)) – excluded land under s6 (buildings, caravans, tents, school grounds, sports fields, crop land)
act is major infringement on exclusivity of ownership
but there are caveats - can't hunt, shoot, fish by virtue of access rights alone, can't cross with motorised vehicle - 28restraints on ownership nuisance Bellobstructs the public by means of commerce and intercourse, from highways to rivers, being noxious or unsafe, renders life uncomfortable to public generally, intolerably offensive to individuals in their dwelling, by stench, noise or indecency
- 29restraints on ownership nuisance invasion of one or both of 2 distinct interests1. interest in use and enjoyment of private land
2. interest of a member/s of public in use and enjoyment of public places
(SME vol 14) - 30restraints on ownership nuisance 2 groups of casesWhitty -
1. cases involving physical damages
2. cases involving interference with use and enjoyment of land - 31restraints on ownership nuisance to be actionable...must be deemed to be plus quam tolerabile (more than tolerable) by courts
Watt v Jamieson - even if normal use, can still constitute nuisance - look from perspective of victim
serious disturbance, substantial inconvenience or material damage - 32restraints on ownership nuisance culpaculpa (fault) must be proven
RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 - lack of fault on part of D would have excluded action of nuisance - 33restraints on ownership nuisance defencesWebster v LA - no defence that nuisance was going on before P arrive at property - nor that it is in the public interest
action can prescribe after 20 years - 34restraint on ownership aemulatio vicinidistinct from nuisance
spiteful act towards neighbour
an otherwise lawful act carried out by landowner is unlawful if done for purely spiteful motives
Misses Glassford v Joseph Astley 1808 - 35original acquisitionacquiring property by operation of law
occupatio, accessio, treasure trove, specificatio, commixtio, confusion - 36OA occupatioappropriating to one's self things which have no owner, by apprehending them, or seizing their possession (Erskine 2.1.9)
- 37OA occupatio appropriationon appropriation, possessor acquires ownership
appropriation requires requisite animus (may be inferred from actions) - 38OA occupatio interloperStair - interloper is owner but may be compelled to restore
Bell - opposite
Aberdeen Arctic Co v Sutter 1862 - Bell was followed - original harpooner held to be owner - 39OA occupatio animalsnever domesticated animals (Erskine 2.1.9) - animal is free when in pursuit though - but some animals have animus revertendi (instinct to return) so can't be owned as not susceptible to occupatio
rainbow trout - treated as domestic (Valentine v Kennedy 1985) - 40OA occupatio landdoesn't apply to land - that which is owned belongs to crown (Erskine 2.1.11) - post feudal abolition, occupatio still has no role in relation to land
- 41OA occupatio moveableswhen right of ownership is extinguished by abandonment or negative prescription, quod nullius est fit domini regis applies (ownership vests in Crown, not open to first occupier - same rule applies to treasure trove - Erskine 2.1.12)
- 42OA occupatio draft billPrescription and Title to Moveable Property (S) Bill
person would gain ownership of property that had been in their possession for 20 years (dependent on conditions, e.g. GF and lacking negligence) - 43OA occupatio abandoned propertyproperty once owned but right of ownership has been given up by owner
general rule - quod nullius est fit domini regis
land can't be abandoned in Scotland (The Scottish Coal Company (In Liquidation) 2013) - 44OA occupatio lost propertyproperty the ownership of which is temporarily uncertain
Civic Govt (S) Act 1982 ss 67-69
no right of ownership conferred by finding
duty of finder to take reasonable care and deliver to authority
Chief Constable's role (s68) - care, steps to ascertain id of owner, if not found, sold and assets deposited to finder or other manner which found fit
after disposal, original owner has no remedy - but if was handed to finder then owner has 1 year to recover it (s71) - 45OA treasure troveif owner or heir can't be found the belongs to crown
Cleghorn & Bryce v Baird 1696 - if was sufficiently antique then could have been treasure trove
disposal - the Queen's and Lord Treasurer's Remembrancer deals with ownerless property - 46OA specificationova species is essential
ownership to maker if new thing is irreducible to former state (Erskine 2.1.16) - or is workman used significant degree of own materials - 47OA specificatio compensationif workman becomes owner, he must pay the value of the materials
if owner of materials becomes owner, he must pay for the workmanship - only if the workman is in GF
(International Banking Corporation v Ferguson Shaw & Sons 1910) - 48OA commixtiomixture of solids belonging to 2 or more individuals
- 49OA confusionmixture or fusion of liquid
- 50OA specificatio/commixtio/confusionErskine 2.1.17
no common ownership if elements are still separable
common ownership if mixture can't be separated into constituent parts, or if mixture is by consent
where mixture is without consent, share ownership with respect to quantity or value of contributions
where mixture results in new thing = specificatio - 51OA accessiowhen 2 pieces of corporeal property have joined together and the accessory is considered to have become subsumed in the principal thing
- 52OA accessio Reid1. physical attachment
2. functional subordination
3. permanency/quasi-permanency - 53OA accessio physical attachmentthe heavier the better
Christie v Smith's Executrix 1949 - wooden summer house acceded - 54OA accessio functional subordinationis the attachment of the article:
1. for the improvement of the land
2. a subject that had acceded to the land
3. for the better enjoyment of the article itself
storage heaters in Fife Assessor v Hodgson 1966 - 55OA accessio permanency/quasi-permanency1. is degree of attachment greater than is necessary to enjoy article and secure it to heritable property (Leigh v Taylor)
2. is adaptation of accessory to fit the principal or vice versa (Howie's Trs v McLay 1902)
3. item usually left behind by occupier (Howie's)
4. installation and removal time (TSB Scotland plc v James Mills (Montrose) Ltd (in receivership) 1991) - 56OA accessio intentionintention doesn't matter
Shetland Islands Council v BP Petroleum Ltd 1990 - 57OA accessio subjectivityBrand's Trustees v Brand's Trustees 1876
land is always the principal, existing title to accessory is wiped out - 58OA accessio constructive fixturesa moveable item which is completely designed for the benefit of another article, itself heritable, that has no utility in isolation, is considered constructively heritable – house keys, moveable parts of a heritable machine
- 59OA accessio compensation for other owneraccessio by owner of principal - owner of accessory is entitled to repayment of value (GF no defence)
accessio by owner of accessory - no compensation unless owner of accessory believed he had more of a transient right to principal (GF required) - 60OA accessio moveables to moveablesStair - consider design and value, e.g. gem in ring
Bell - if one can exist separately and other can't then one that can is principal, e.g. car has separate identity, paint doesn't - then look to bulk, then value - 61OA accessio land to land alluvionslow process
addition must not be temporary, must be gradual or imperceptible, man-made alluvion (avulsion) – Smart v Dundee Magistrates 1796, new islands in rivers - 62OA accessio land to land avulsionquick process
- 63OA accessio fruits that accedeyoung animals before birth, natural products of animals or plants until separation, trees and plants on taking root and drawing nourishment – exception – industrial growing crops that require annual seed and labour (Boskabelle Ltd v Laird 2006)
- 64OA accessio who is entitled to fruitsLiferenter always entitled to fruits
Tenant – yearly fruits – not minerals or woods, except by express clause in lease
Bona fide possessor – keep all fruits to which the possessor’s imagined title, if good, would have given right – Roxburghe v Wauchope 1825 - 65prescription and registration MINDMAPrecording of Sasine and 1617 acts
reforms of 1970s and Land Registration (S) Act 1979
Land Registration (etc.) Scotland Act 2012 - 66derivative acquisitionprocess of disposal or transmission of property
disposal can only be by one who has the right (no-one can give what he doesn't have - nemo dat quod non habet) - 67DA intentionintention to transfer property must normally be manifested in an active way (exceptionally can be inferred from circumstances)
- 68DA process of transfer2 stages: contract and conveyance
process can be analysed in 2 ways - causal or abstract
abstract = transfer is a separate and independent legal act - 69DA transfer of ownership in heritable propertyheritable equates to land but moveable things can be considered heritable through accession
sale and purchase is a 3 stage process - 70DA transfer of ownership in heritable property sale and purchase process stage 11. missives (contractual stage) - conclusion entitles seller to price and buyer to disposition and entry on agreed date - gives rise to personal rights - seller can sue for payment and buyer can sue for delivery of disposition and for entry
- 71DA transfer of ownership in heritable property sale and purchase process stage 22. disposition - formal transfer document - spells out Ts and Cs - ownership remains with seller until registration is completed - buyer's right remains personal
- 72DA transfer of ownership in heritable property sale and purchase process stage 33. registration - sees creation of real right
- 73DA Sharp v Thompson 1997disposition delivered but not registered before floating charge "crystallised"
- 74DA voidable titleMacLeod v Kerr 1965
in case of voidable title, a 3rd party in good faith will get good title – leaving the defrauded seller unable to recover the property and with only a claim for compensation - 75DA non-owner transferor caseHillary Watches
covered by s21 of SOGA 1979 - 76DA SOGA 1979only applies to sale of goods
common law applies to gifts, swaps and attempts at a contract - 77DA publicity principleChief Constable of Strathclyde v Sharp 2002 – publicity principle – person who is in possession of corporeal moveable will be held to be owner unless there is evidence to prove otherwise
- 78DA offside goalsRodger (Builders) Ltd v Fawdry 1950 – wherever an individual becomes bound to sell to one party, and another, in the knowledge of that obligation, takes a second right, this second right is ineffectual and reducible in a question with the first purchaser – in granting a second right, the seller is guilty of fraud on the first purchaser – against the seller himself the transaction would be clearly reducible – but, in taking the second right in the knowledge of the first, the second disponee becomes an accomplice in the fraud, and the transaction is reducible against both alike
- 79real securities include standard security, charging order, floating chargeright held by creditor in property in security of a debt (Reid)
Loan repaid = security extinguished – Rankin v Arnot 1680
Underlying contract of loan is void = security is also invalid – Nisbet’s Creditors v Robertson 1791 - 80standard securitiesgoverned by Conveyancing and Feudal Reform (S) Act 1970
can be created over any land or real right in land (s9(2))
can be for sum of money or performance - 81standard security requirementsmust be in writing (ROWSA 1995 s1(2)(b))
to become a real right must be registered in the Land Register (Conveyancing and Feudal Reform (S) Act 1970 s11(1))
must conform to specific form (1970 act) - if omits words, court will interpret omission in light of original conditions - 82standard conditions1-6: maintenance of security subjects
7-11: enforcement of the security
default > procedures > remedies - 83SC default (SC9)SC 9
triggers creditor's capacity to enforce the standard security
3 situations possible:
1. a calling-up notice has been served and not complied with (these are used where the creditor has the immediate right to require repayment of the whole debt and are served on the proprietor of the security subjects – creditor may sell security subjects if notice not complied with)
2. failure to comply with any other requirement in security (e.g. not paying interest payments or maintaining subjects)
3. debtor is insolvent - automatically in default - 84SC outline of processfollowing default, creditor must use appropriate procedures to enforce security, once creditor has applied to enforce security he may exercise various remedies
- 85SC procedurenon-residential properties: creditor must use calling-up notice to enforce SS (RBS v Wilson 2012)
residential properties: creditor must use calling-up notice (RBS) and a s24 warrant (Home Owner and Debtor Protection (S) Act 2010) - 86SC remedies SC103 remedies in 1970 act sch 3
1. power of sale (statutory duty on creditor to obtain best price, must distributed according to s27)
2. power to enter into possession of security subjects (up to 7 years to recoup losses)
3. right to apply for a decree of foreclosure (makes creditor owner, exceptional circumstances like failed to sell) - 87real securities floating chargeScotland in Companies (Floating Charges)(S) Act 1961
secures an underlying obligation, writing is required, can only be granted by certain commercial entities (companies and limited liability partnerships)
crystallises when debtor defaults and attaches to assets - 88real securities floating charge publicity problemBankruptcy and Diligence (S) Act 2007 still not in force
would deal with this problem by introducing a register of floating charges
but has had various objections - 89real securities pledgereal right in security over corporeal moveable property – when debtor hands thing that is to be security for loan over to creditor – no need for writing except when pawnbroker is involved (Consumer Credit Act 1974 s115) – no delivery of thing means no real right in security is created – on default, pawnbrokers power of sale arises automatically where property hasn’t been redeemed in 6 months (Murray of Philiphauch v Cuninghame 1668)
- 90real securities liena real right to retain property until the discharge of an obligation, the property not having been delivered to the retaining party for the purpose of the security
Normally only persists so long as the creditor retains possession of the thing (Goudie v Mulholland 2000)
2 types: special (specific obligation – McKichen v Muir 1849) and general (more than one obligation)
Enforcement usually depends on a court order - 91title conditionsTitle Conditions (S) Act 2003
servitudes
real burdens
distinction s2(1) - 92TC servitudes requirements1. not repugnant with ownership (can't deprive owner of any meaningful use of property)
2. on list under ss75-76 (Moncrieff v Jamieson 2008 - appropriate to develop existing principles) - list may not be closed in exceptional circumstances
3. must be b and b property (must be heritable and in separate ownership (Stair II.7.I), must be praedial and satisfy vincitas (Harper v Lindsay 1853), must be no positive duty on burdened to do anything (Stair II.7.6) - 93TC recognised servitudesAccess (Alvis v Harrison 1991 S.L.T. 64); note servitudes of iter, actus and via - Car parking (Morrison v Robertson 2008 S.C. 1) - Service servitudes – e.g. aqueduct/ watergang (Stair II.7.12) and aquehaustus (Stair II.7.11); note also electricity and gas through TC(S)A 2003 s.77; “sinks” and drainage (Todd v Scoular (1988)) (of importance for sceptic tanks, for example) - Servitudes to obtain fuel (e.g. peat); consider Harvie v Stewart (1870) - Servitudes to extract building materials; consider Aikman v Duke of Hamilton and Brandon (1832) - Servitudes of pasturage; consider Ferguson v Tennant 1978 - Servitudes to bleach linen (Sinclair v Magistrates of Dysart (1779) - Servitudes of support/ overhang (Compugraphics International Limited v Nikolic 2011)
- 94TC servitudes creationBy express grant, in writing (ROW(S)A 1995 s 1 (2)(b)) – must be registered against both properties (s75(1) of TCSA)
By implied grant (test of what is necessary for the convenient and comfortable enjoyment of benefitted property – Cochrane v Ewart 1861) or implied reservation (test of what is absolutely necessary for the enjoyment of the benefitted property – McEwan’s Executors v Arnott)
By prescription (PALSA 1973 s3) – including by prescription of 20 years of use – Aberdeen City Council v Wanchoo 2008 - 95TC servitudes enjoyment and enforcementone must have both title and interest to enforce a servitude right – title arises from the servitude right and interest is normally presumed in the case of servitudes
- 96TC real burdens requirementsPraedial
Tailors of Aberdeen v Coutts 1840, now largely restated in TCSA ss 3, 4, 5, 8:
“real burden”, not contrary to law or public policy, not vexatious, useless, repugnant with ownership, can only be enforced by those with interest to enforce and can be constituted as obligations to pay a certain sum of money - 97TC real burdens creationPost 2004 – constitutive deed required, deed must identify burdened and benefitted property and must be registered against burdened and benefitted properties
Pre-2004 – constituted through deed of conveyance, no special words required, only registration against burdened property – no need to specify benefitted property (special rules for identifying benefitted property outlined in ss52-53) - 98TC real burdens enforcementrequires title and interest (s8(1) of TCSA)
title to enforce (8(2)) - owner of benefitted property always has this
interest to enforce more complex (8(3)):
has interest if - in circumstances of any case, failure to comply with real burden is resulting in, or will result in, material detriment to the value or enjoyment of the person’s ownership of, or right in, the benefitted property - 99TC real burdens enforcement material detrimentBarker v Lewis 2008 – houses burdened to effect that they should only be used for residential purposes, one was used for B&B, burden breached so neighbours with title to enforce sought interdict, sheriff held that breach would have had to have been substantial which it wasn’t – test set high – traffic and noise held not material detriment – decision was criticised by Prof Reid and others (would any real burden ever be enforceable with the bar set this high?)
- 100TC real burdens enforcement problem of high testKettlewell v Turning Point Scotland 2011 – dealt with problem to an extent – burden was that dwelling was for use by one family only – charity desired to provide accommodation for socially excluded – did neighbours have interest to enforce – argued increased volume of traffic, behaviour of those housed might affect value of surrounding properties (by 5-15% - quantifying value makes difference) – held there was material detriment so interest to enforce
- 101TC real burdens enforcement titleS82A: A person has such title if an owner of the benefited property; but the following persons also have such title–
- (a) a person who has a real right of lease or proper liferent in the benefited property (or has a pro indiviso share in such right);
- (b) a person who–
- (i) is the non-entitled spouse [ or non entitled partner] 1 of an owner of the benefited property or of a person mentioned in paragraph (a) above; and
- (ii) has occupancy rights in that property; - 102TC real burdens enforcement interestmaterial detriment para and:
s8 (3) (b) the real burden being an affirmative burden created as an obligation to defray, or contribute towards, some cost, that person seeks (and has grounds to seek) payment of, or as respects, that cost - 103—
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- Fichas sobre Property, creado por Eilidh Murray el 25/11/2017.
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- Eilidh Murray
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