Scots Property Law (1) Cases

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

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