Scots Property Law (1) Cases

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When a co-owner illegally took up exclusive use of Common property, it was held that no damages were available. Andrew Steven believes this to now be wrong
Rule of first completion
Although division and sale usually takes place on the open market, one co-owner can have the right to buy out the share of another co-owner at market value
A work of art which filled a space formerly occupied by panelling could accede to the heritable property
Only ordinary use of common property is permitted
Warrandice includes constructive knowledge of what may burden the property
Obligation to convey ownership does not prescribe for 20 years
For prescription, an ambiguous conveyance favours the buyer
Common owners have right to make use of property. No owner to take excessive benefit
Each co-owner is entitled to physical division, or if impossible, to division and sale
Where a heavy object rests on its own weight, there is sufficient physical attachment for accession
If the new item is of a different species from the old, specification has occurred. It is more likely to have occurred where there is little possibility of reversing the process
The curtain principle
The right to buy out a co-owner at market value is only available if one party does not contest the action
Elaboration on 'Proprietor in Possession'
Only quasi-permanency is required for accession. Those with lease can remove acceded property during their lease
There is no specification where the original property was obtained in bad faith
Elaboration on s12(1)(d) in the LRSA 1979
Warrandice is assigned all the way back through a chain of dispositions (retrocession)
Offside goals rule
Illegible signatures possibly valid, never probative
An unknown tenant was deemed immaterial for warrandice. This is probably wrong now
By recording a security without checking the position of known prior rights, the party is facilitating a breach, so offside goals apply
A deed cannot prescribe positively if it is intrinsically null
If extraordinary use of common property has become common over time, it may be permitted
For land, risk passes on conclusion of contract
Signature and witnessing must be one continuous process
Mutual special adaptation is a sign of permanency in accession
To grant a servitude over Common property, all owners must participate
Containers: possessing item in a container requires intention to possess everything in that container
If the purpose of attachment is for the better use of the property, there is functional subordination
Salmon growing from smolts is not specification
One Common owner of fishing rights could not grant a 3rd party 'exclusive fishing rights' without consent of all other common owners
An acknowledged letter was suitable for the purposes of intimation
Servitudes will generally be material regarding warandice
Industrial growing crops do not accede to the land which they grow on
Tapestries affixed to walls did not accede to the property as they could be easily removed (English case)
If the assignor's right could be extinguished by compensation, the assignee's could too
Abandoned property belongs to the crown
Voidable title transferred to buyer in good faith becomes valid
Trees planted along a boundary are common property, so changing them needs the consent of 2 parties
Trout bought on a fish farm lost their status as fera naturae, so even when they escape, they were still the owner's property
The option to do something is not the same as a direct obligation to make a grant
Sporadic dumping and peat cutting not enough for possession (in prescription)
All sums clauses are legitimate in Scotland
Affirmation of the container case in Scotland
For rectification in the register, there had to be an act or omission on the claimant's part which caused the loss
An a non domino disposition cannot be from A to A
Two common owners cannot grant a 'lease' to one of the owners. This is a matter for contract
Assignation is not to worsen the position of the debtor
Black and white divide between personal and real rights
A buyer in possession under SOGA s25 can transfer good title, which defeats retention of title clauses
Unless there is irrevocable attachment for accession, it is necessary to consider the other two elements of the test
Judicial eviction is required before a claim arises in breach of warrandice, although exceptionally you can apply when the granter is on the brink of insolvency
Parties' intentions are irrelevant to accession
To decide if division is impossible, you have to look at the practicalities of doing so. Otherwise, you sale and divide up the proftits
Default rule of common property is that the consent of all is required
It is okay to subdivide your share of Common Property
Compensation is available when the owner of the accessory has their property accede to the principal when they mistakenly believed they had a right to the principal
Repairs may be carried out on Common property and costs recovered pro rata

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Created Apr 11, 2011ReportNominate
Tags:case, law, property, ratio, scotland