Co-ownership - Scotland

Mind Map by Terataki, updated more than 1 year ago
Created by Terataki about 6 years ago


Joint / Common, Alterations and Repairs, Matrimonial homes, Getting out

Resource summary

Co-ownership - Scotland
1 Common
1.1.1 Nature of title Common- each has a pro indiviso or undivided share in the whole subjects- no need to be equal but must be specified Joint- singe title held together - owners cannot separately carry out juristic acts
1.1.2 On death of co-owners (Because of separate shares) a. survivorship clause b. no su.clause but will c. no will - will fall under the law of succession Shares absorbed by co-owners
1.1.3 Rules of management of property Specific rules Rules set out in trust deed - unless unincorporated trust: will have a constitution
2 Joint
3 use of common property
3.1 common agreement between proprietors: any use permitted - Bailey's Exrs v Upper Crathes Fishing
3.1.1 No common agreement: a. each proprietor entitled to use whole of property b. Only 'ordinary use permitted' Caramichael v Simpson (stored wheelchare- ordinary use) Apps v Sinclair: right to have access to the path - ordinary use: look at the natural use c. no excessive benefit if a. is breached: recovery for the unlawful exclusive possession: Price v Watson: no remedy of ejection as the title of the D will be the same of the pursuer- held: the proceedings should be assisted in order to allow the bringing of an action for division and sale as the appropriate remedy in the circumstances
4 alterations (= work improve the state of the property or bring it down) and repairs (= cannot own the common property)
4.1 Anderson v Dalrymple: uncertainty- affects the ownership of the walls of the passage and stair / Rafique v Amin:practical difficulties - too liberal use of common property --- * to bind the successors must be in writing
4.1.1 if not agreed - interdict is possible
4.2 Difference is not always clear in practice: McLay v Bennett and Bennett: held: Carry our work in an elevator even if new- did not require repair- could recover cost
4.3 Repairs:
4.3.1 consent of all is required
4.3.2 necessary repairs may be carried out by any proprietor and costs may be recovered pro rata
4.3.3 Deans v Wolfson: approved the general principle of veto- no need for the agreement of the co-proprietors
5 Getting out
5.1 Transfer (of his/her own share)
5.2 (physical) Division and sale
5.2.1 Limits: a. contracting out b. Personal Bar c. Common interest
6 matrimonial homes
6.1 Family protection (Scotland) Act s,19 Crow v Crow: occupancy right held not to cease on diveorce
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