Derivative Acquisition in Property Law

Derivative Acquisition

• Derivative acquisition involves the process of disposal or transmission of property, distinct from original acquisition.
• The right of disposal is a core aspect of ownership.
• Ownership encompasses rights to use, fruits, and disposal of property.
• The right of disposal can be transferred, but not if the person lacks authority.
• A two-stage process is essential in transferring property. This involves a contract and conveyance.
• Real rights are available against the whole world, while personal rights are specific to individuals.
• Personal rights do not involve a right of disposal.
• The transfer of ownership is a two-stage process.
• A contract giving a personal right and the transfer of a real right involves a two-stage process.
• In contract, a personal right is created and in conveyance, a real right is transferred.
• Actual possession of property does not necessarily indicate ownership.

General Matters

• General matters apply to all forms of property.
• We are concerned with property in the sense of what is open to disposal.
• Ownership is made up of rights to use, fruits, and disposal.
• The right to dispose of property is essential to ownership.

Transfer of Ownership in Heritable Property

• Scots property law differentiates between heritable and moveable property.
• Heritable property is equated to land, deriving from 'that which goes to the heir'.
• Historically, primogeniture and male preference were rules in succession to heritage.
• Heritage could not be bequeathed until the Titles to Lands Consolidation Act 1886.
• 'Heritage' is now obsolete, with 'immoveables' preferred.
• Moveable property can become heritable by accession.
• The heritable/moveable distinction is relevant in succession and transfer of property.
• Various moveable things can be considered heritable.
• Accessory things belong to the property they accompany.

Transfer/Ownership in Moveable Property

• Ownership of moveable property is determined by contracts, acts, or law.
• A 3-stage process exists in transferring heritable property: missives, disposition, and registration.
• The general law of contract is applicable to property disputes. - The process of registering property is essential.
• Real rights are acquired via registration in relevant systems.
• Registration of acquisition marks the transfer of ownership.
• There is a period of vulnerability between completion of the contract and registration, during which the person selling the property could potentially sell or dispose of it twice.

Key Case Law and Legislation

• Key cases like Sharp v Thompson (1997) and Burnett's Trustee v Grainger (2004) illustrate the complexities of ownership transfer.
• The Sale of Goods Act (1979) is relevant to the transfer of moveable goods.
• Legislation dealing with property transfer is critical.

This quiz explores the concepts of derivative acquisition in property law, including the distinctions between original and derivative acquisition. Learn about the rights of disposal, the two-stage process in transferring property, and the differences between real and personal rights. Test your understanding of ownership and its implications.