Neighbour Law Chapter 18 G&S
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Questions and Answers

What does ownership NOT grant to an individual?

  • The right to encroach upon a neighbor's land. (correct)
  • The right to use the property as their own.
  • The right to exclude others from the property.
  • The right to enjoy the fruits of the property.

    • Which of the following is a key entitlement of a landowner?

  • The right to support from neighboring properties.
  • The right to use the property only for residential purposes.
  • The right to use land free from interference by neighbors. (correct)
  • The right to dispose of the property without any obligations.

    • How is a boundary fence shared between two owners categorized?

  • Belongs to the owner whose side it is built on.
  • Considered a common property with no ownership.
  • Owned ad medium filum, divided equally at the midpoint. (correct)
  • Owned solely by the owner who erected it.

    • What is an example of encroachment?

    <p>Roots of a tree extending into a neighbor's yard.</p> Signup and view all the answers

    What is necessary for a boundary feature that straddles two properties?

    <p>Permission from both owners to construct it.</p> Signup and view all the answers

    What does the term 'aemulatio vincini' refer to?

    <p>Spiteful acts that undermine neighbor relations.</p> Signup and view all the answers

    What is true about the act of encroachment according to legal principles?

    <p>It can be considered trivial but still affect legal remedies.</p> Signup and view all the answers

    What legal restriction could impede an owner's right to use their property?

    <p>Common law or statutory laws.</p> Signup and view all the answers

    What is a core principle regarding the powers of a pro indiviso owner in terms of servitude?

    <p>They only hold power over their own property.</p> Signup and view all the answers

    Under what condition can co-owners apply to have property divided proportionally?

    <p>When no physical split of the property is possible.</p> Signup and view all the answers

    Which of the following limits division and sale of common property?

    <p>Common interest.</p> Signup and view all the answers

    In the context of joint property, what is meant by 'elastic' title?

    <p>A joint ownership that exists as long as certain conditions are met.</p> Signup and view all the answers

    In which case was it determined that human rights do not limit division and sale?

    <p>McLeod’s Trustee v McLeod</p> Signup and view all the answers

    What is the primary basis for co-ownership in Scots law?

    <p>Ownership allows for a pro indiviso share among co-owners.</p> Signup and view all the answers

    What distinguishes common property from joint property?

    <p>Common property requires unanimous consent for alterations.</p> Signup and view all the answers

    What happens to the share of a deceased co-owner in common property?

    <p>It becomes part of the deceased’s estate subject to succession rules.</p> Signup and view all the answers

    Which principle applies when alterations to common property are required?

    <p>All co-owners must agree beforehand.</p> Signup and view all the answers

    In the context of Scots law, what is a pro indiviso right?

    <p>A shared ownership where rights are not separately defined.</p> Signup and view all the answers

    What key factor influences the rules for management in joint property?

    <p>An established trust deed.</p> Signup and view all the answers

    Which of the following scenarios would likely involve common property?

    <p>A family farm owned by multiple siblings.</p> Signup and view all the answers

    How does the principle of 'every inch' apply to common property?

    <p>Co-owners must agree on the use of the entire property.</p> Signup and view all the answers

    What is required before making improvements to common property?

    <p>Consent of all common owners.</p> Signup and view all the answers

    In which situation can a co-owner seek an interdict regarding common property?

    <p>If they feel unfairly treated by changes that benefit other co-owners excessively.</p> Signup and view all the answers

    What must occur for necessary repairs to be carried out on common property?

    <p>Consent from all common owners is necessary.</p> Signup and view all the answers

    What is suggested regarding the need for consultation among co-owners during necessary repairs?

    <p>The instructing party need not consult others but can demand compensation afterward.</p> Signup and view all the answers

    Which statement accurately describes juristic acts in the context of co-ownership?

    <p>Juristic acts related to the property can only be executed with participation from all co-owners.</p> Signup and view all the answers

    What is indicated about the prevalence of common property compared to joint property?

    <p>Common property is encountered more frequently than joint property.</p> Signup and view all the answers

    What is the role of consent in relation to encroachments between neighbors?

    <p>Consent only bars the neighbor from challenging the encroachment personally.</p> Signup and view all the answers

    Which of the following best describes the concept of nuisance in property law?

    <p>A balance between an owner's right to enjoy their property and their neighbor's rights.</p> Signup and view all the answers

    What must an owner show to prove that a neighbor's interference is more than what is tolerable?

    <p>That the interference is plus quam tolerabile.</p> Signup and view all the answers

    In the context of encroachments, what role does the case Anderson v Brattisanni’s play?

    <p>It highlighted the concept of proportionality in assessing the impact of encroachments.</p> Signup and view all the answers

    What does 'plus quam tolerabile' refer to in nuisance law?

    <p>A measure of what is reasonable for an owner to endure.</p> Signup and view all the answers

    What is one factor considered in evaluating a defender’s conduct in a nuisance case?

    <p>The social utility of the activity causing interference.</p> Signup and view all the answers

    According to the doctrine of 'cuius est solum, eius est usque ad coelum et ad inferos', what rights does a property owner have?

    <p>Ownership extends to the property above and below the land.</p> Signup and view all the answers

    What may be a legal defense in a nuisance claim if the pursuer was aware of the nuisance before moving in?

    <p>The pursuer 'coming to the nuisance' limits their ability to claim damages.</p> Signup and view all the answers

    What type of remedy is an interdict in the context of property disputes?

    <p>A court order preventing further interference.</p> Signup and view all the answers

    How does the Coal Industry Act 1994 relate to property law?

    <p>It mandates compensation for any subsidence caused by coal mining.</p> Signup and view all the answers

    What is a key consideration when evaluating the locality in nuisance cases?

    <p>Context for nuisance can vary greatly between urban and rural settings.</p> Signup and view all the answers

    What can be a consequence of a property owner not taking precautions against known nuisances?

    <p>Their claim may be weakened or dismissed in legal proceedings.</p> Signup and view all the answers

    What is the principle behind mutual walls or gables in property law?

    <p>They create a shared interest for both adjacent properties.</p> Signup and view all the answers

    Which of the following describes the right of support in property law?

    <p>Adjacent and subjacent owners must maintain support for the land.</p> Signup and view all the answers

    Study Notes

    Ownership Entitlements and Restrictions

    • Ownership grants entitlements, including the right to use, enjoy the fruits, and consume an asset.
    • Erskine defines ownership as the right to use and dispose of an asset as one's own, barring legal or contractual constraints.
    • Ownership is restricted by common law, statutes, and express or implied obligations.

    Key Entitlements of a Landowner

    • Right to Exclude: The right to prevent others from entering or using the land.
    • Right to Dispose: The right to sell, transfer, or otherwise convey ownership rights in the property.
    • Right to Use: The right to use the land in a manner consistent with legal restrictions.
    • Right of (and Obligation to) Support: The duty to ensure that one's land supports neighboring properties and vice versa.
    • Right to Use Land Free From Interference: Owners are generally protected from interference by neighbors.

    Neighbour Law (Chapter 18 G&S)

    • Boundaries: Defined by fences, walls, or other features.
    • Encroachments: Permanent or quasi-permanent intrusions onto a neighbour's land.
    • Support: The duty to support neighbouring land.
    • Nuisance: Actions that impair a neighbor's use and enjoyment of their property.
    • Spiteful Acts (Aemulatio vincini): Actions designed to harm or annoy a neighbour.
    • Neighbour's Property Use: Rules governing use of neighbour's property for drainage or repairs.

    Establishing Boundaries

    • Boundary Features: May be entirely on one property or straddle the boundary.
    • Construction of Boundary Features: Requires permission from both property owners if feature crosses the boundary.
    • Ownership of Boundary Features: Fences entirely on one property are that property owner's alone; if the fence straddles the boundary it is owned "ad medium filum" (to the midpoint) by each neighbour.
    • Maintenance of Boundary Features: Subject to agreements between neighbours. If it straddles the boundary, each neighbor pays proportion of maintenance costs.
    • Actions Preventing Adverse Impacts: Neither neighbor can adversely affect the other's construction or maintenance of a shared boundary feature.

    Encroachment

    • Intrusion (permanent or quasi-permanent) onto a neighbour's land.

    • Legal precedent (Leonard v Lindsay & Benzie 1886): No right to encroach, even trivially.

    • Examples include: walls, signposts, roots/branches.

    • Encroachment is actionable regardless of the harm caused.

    • Defences: Express or implied consent (can be personal bar), statute, common gables.

    • Remedies: Interdiction (court order for removal), removal of encroachment, damages (depending on the severity, and if neighbour's property is harmed).

    Right of Support

    • Adjacent and subjacent (below) properties, bear a duty of support, especially for undeveloped land.
    • Duty on existing buildings might be impacted if the building was contemplated at the time that the mineral rights were separated from the ownership of the surface.
    • Examples: Coal Industry Act 1994 (coal authority's responsibility for subsidence). Building to building: flats as defined by the Tenements (Scotland) Act 2004; and mutual walls/gables with shared ownership.

    Non-interference / Nuisance

    • Owners have the right to use property. Law of nuisance restricts this right, ensuring neighbour enjoyment.
    • Neighbour law maxims: Cuius est solum, eius est usque ad coelum et ad inferos, and sic utere tuo ut alienum non laedas.
    • Nuisance: Interference with neighbour's comfort, convenience, or quality of life.
    • Case Law: Nuisance divides into physical harm and interference with enjoyment. Examples could be smells, noise, or activities.
    • Bell's Principles (s 974): Example of how a brothel could be considered a nuisance.

    Plus quam tolerabile

    • Balancing act of acceptable interference.
    • A neighbour has to put up with certain minor inconveniences, but not substantial interference.
    • Case Law: Watt v Jamieson 1954 SLT 56 emphasizes the "plus quam tolerabile" test.

    Evaluation of Defendant's Conduct

    • Relevant factors in evaluating nuisance include:
    • Locality, social utility, remedial measures, the pursuer's/defendant's sensitivity, proportionality, public utility, and mitigating circumstances.
    • Nuisance: Locality: Different types of activities are acceptable in different areas.
    • Nuisance: Social Utility: Certain necessary but sometimes annoying activities, aren't actionable
    • Pursuer/Defendant Mitigation: The pursuer has to reasonably try to mitigate the effects of the nuisance themselves.
    • Pursuer coming to the nuisance: Moving into an area with an existing nuisance doesn't automatically make it acceptable.
    • Nuisance/support distinguished: Can be difficult to separate these issues in legal practice.

    Co-ownership

    • Co-ownership exists for both heritable and moveable property.
    • Common Property: A pro indiviso right in the whole subject. Individual shares are subject to legal actions. Equally shared unless specifically agreed.
    • Joint Property: Shared title, single entity, no separate shares, subject to trust deeds/constitution.
    • Common Property Rules: Each owner can use the entire property, but only within the ordinary or usual bounds of its use or nature. Owners cannot cause excessive benefit to themselves to the detriment of others.
    • Alterations/Repairs: Consent is typically required for alterations. Necessary repairs might be an exception, but require specific justification.
    • Juristic Acts: Actions affecting the whole property (leases, servitudes) need consent from all co-owners.
    • Division or Sale: Co-owners can apply to court for division (or sale) if there's no agreement. If the property cannot be physically divided, the court can order a sale and division of the proceeds.
    • Limits on Division and Sale: Contracts, a personal bar to division, common interests, and certain exceptions for matrimonial/family homes are limits on division and sale.
    • Can one co-owner insist on buying from others?: Courts often apply fairness and proportionality (though there can be circumstances that create a legal exception).

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    Description

    This quiz explores the entitlements and restrictions associated with ownership, particularly in the context of land. It covers key rights of landowners, including the right to exclude, dispose, and use their property, as well as obligations toward neighbors. Test your understanding of ownership dynamics and legal constraints.

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