Property Law Exam Notes PDF

**Lecture 1.1 -- Property Law (Rights and Things)** 1\. Classification of Property 2\. Classification of Rights 3\. The Real Rights **[Classification of Property]** **Corporeal and Incorporeal Property:** - Corporeal Property -- Physical existence (e.g., land, furniture). - Incorporeal Pr...

**Lecture 1.1 -- Property Law (Rights and Things)** 1\. Classification of Property 2\. Classification of Rights 3\. The Real Rights **[Classification of Property]** **Corporeal and Incorporeal Property:** - Corporeal Property -- Physical existence (e.g., land, furniture). - Incorporeal Property -- No physical existence (e.g., intellectual property, rights). **Heritable and Moveable Property:** - Heritable Property -- Land and property attached to land. - Moveable Property -- Anything not classified as land. - Classification by Nature or Accession: a principle in property law used to determine whether something is considered heritable or moveable. *Ramsay v Ramsay (1887)* -- Case reference for classification by nature. - the case illustrates the principle of classification by nature or accession by addressing how property is categorised based on its inherent characteristics or its relationship to other property. - The court examined whether certain items were part of the land (heritable property) by nature or through the process of accession---a legal principle where a thing becomes part of another by being attached to or associated with it. - the key issue was whether fixtures or objects physically attached to land should be classified as heritable or moveable property. The ruling highlighted that: - If an item is permanently affixed to land, it becomes part of the land (heritable property) by accession. - If the item can be removed without damaging the land or the item itself, it retains its status as moveable property. **[Intellectual property]** such as copyright, patents are regarded as real rights because they are not personal rights as there is nobody against whom they are held. **[Classification of Rights]** **Real Rights vs. Personal Rights:** - [Personal Rights] -- Rights against individuals, binding them to specific obligations. - *Justinian's Institutes (3.13):* Describes personal rights as legal ties. - [Real Rights] -- Rights in things, enforceable against everyone. - *Hume's Definition*: A right obliging others to respect possession or ownership. - The primary real right is ownership - A real right binds the owner because it is the right in the thing rather than against the person **The Real Rights** Types of Real Rights: 1\. Ownership 2\. Rights in Security 3\. Proper Liferent 4\. Title Conditions 5\. Lease 6\. Possession 7\. Public Rights **Lecture 1.2 -- Ownership** - Ownership - Acquisition, Proof, and Loss of Ownership **[Ownership]** **Definition**: Traditional Definition (Erskine, Inst. 2,1,1) -- Rights to use, enjoy, and dispose of property. Case Reference: *Stevenson-Hamilton's Exrs v McStay (1999).* This case highlights the importance of accurate land registration and the legal remedies available when ownership is obtained through fraudulent means. **Acquisition of Real Rights:** 1\. Original Acquisition -- Ownership acquired for the first time. 2\. Derivative Acquisition -- Ownership transferred from another party. **Proof of Ownership:** Ownership of corporeal moveables is presumed from possession *Chief Constable, Strathclyde Police v Sharp 2002 SLT (Sh Ct) 95* This case illustrates the legal principle in Scots law that possession of corporeal moveable property serves as prima facie evidence of ownership. To challenge this presumption, contrary evidence---such as proof of theft or a superior title---must be presented. Absent such evidence, the possessor is presumed to be the lawful owner. The presumption may be rebutted by someone showing: - that they were owner at some time in the past; and - that they lost possession in a manner inconsistent with loss of ownership Heritable Property -- No presumption. Ownership determined by examining property registers. **Remedies for Owners of Corporeal Moveables:** When an owner of corporeal moveable property is dispossessed, the legal system provides remedies to recover the property or seek damages. These remedies are designed to restore the owner's rights, prevent unjust enrichment by the possessor, and compensate for any loss or destruction of the property. **Key Remedies** 1. **Action for Delivery (Vindicatio)** - A legal action to compel the return of the property to the rightful owner. - Available when the property still exists in the hands of the possessor. 2. **Action for Damages (Actio Furti or Trespass)** - If the property cannot be recovered (due to sale, consumption, or destruction), the owner can claim damages. - Damages may reflect the value of the property or the profit made from it by the possessor. **Relevant Cases** 1. *Faulds v Townsend (1861) 4 Macq. 511 (HL)* **Facts**: - Faulds, a veterinary surgeon, discovered that a horse entrusted to him was sold by Townsend, a third party. Townsend, unaware of Faulds' interest in the horse, sold it at a profit. - Faulds pursued legal action to recover the value of the horse or the profits Townsend had gained. **Decision**: - The House of Lords ruled in favor of Faulds, establishing that even if the possessor (Townsend) acted in good faith, he was **liable to the true owner for the profit** derived from the sale. **Significance**: - This case highlights the principle that **good faith possession does not shield a possessor from liability** if the property is wrongfully sold. - It establishes the doctrine of **unjust enrichment**, ensuring that a non-owner cannot profit from the wrongful dispossession of another's property. 2. *Findlay v Monro (1698) Mor 1471* **Facts**: - Findlay owned a quantity of wine stored with Monro. Monro consumed the wine without Findlay's permission. - Findlay sought damages for the loss of his property. **Decision**: - The court found Monro liable, ruling that consumption or destruction of the property triggered liability for its value. **Significance**: - This case emphasizes that **possession leading to consumption or destruction** creates **automatic liability**. - The ruling affirms that **possession does not transfer ownership**, and the possessor must **compensate the owner if the goods are irreversibly used**. **Loss of Ownership** General Rule: Ownership is not lost by losing possession alone. - Finding lost property does not grant ownership (*Civic Government (Scotland) Act 1982, s. 73*). Abandonment: Corporeal Moveables -- Lost through abandonment. - *Mackenzie v Maclean (1981)*: Abandonment case. - *Lord Advocate v University of Aberdeen (1963)*: Relates to loss of ownership. Land -- Cannot be lost through abandonment. - *Joint Liquidators of Scottish Coal Co Ltd v SEPA (2014):* Case on abandonment of land. **[Lecture 2:1 shared ownership]** **Forms of shared ownership** 1.Common Property: - Each co-owner holds a separate and divisible share of the property (pro indiviso). - Co-owners can freely dispose of their share without requiring consent from others. - Upon death, the share automatically passes to the owner's executors (succession). - Termination: Any co-owner has the absolute right to dissolve the shared ownership arrangement at any time. - Lord Justice Clerk Cooper in Magistrates of Banff v Ruthin Castle Ltd (1944 SC 36 at 68-69) emphasized that this distinct feature allows community termination at will. 2\. Joint Property: - No divisible shares exist; all owners hold the property jointly without separation. - This form arises through specific legal relationships such as trusts, contracts, or quasi-contracts. - Essential feature: The bond between the parties is necessary to maintain the joint right. - Termination cannot occur unilaterally. **Use of Common Property** General Rule: - Co-owners may use the entire property by agreement. - If no agreement exists, specific rules apply to prevent misuse or unfair advantage. Three Key Rules for Use Without Agreement: 1. Each Owner Can Use the Whole Property: - All owners have equal rights to use any part of the property. - Exclusive possession by one party is problematic. - Case: Price v Watson (1951 SC 359) -- Exclusive use may require judicial intervention. 2. Ordinary Uses Are Permitted: - Only reasonable and ordinary uses of the property are allowed. - Case: Carmichael v Simpson (1932 SLT (Sh Ct) 16) -- Defining ordinary use can be contentious. - Rafique v Amin (1997 SLT 1385) -- Unpermitted actions that deviate from ordinary use can be challenged. 3. No Prejudicial Acts: - Any action that harms or prejudices other co-owners' interests is prohibited. - Case: Bailey's Exrs v Upper Crathes Fishing Ltd (1987 SLT 405). **Repairs and Alterations to Common Property** General Rule: Major repairs and alterations require consent from all co-owners. - This prevents unnecessary or unwanted changes imposed by one party. Necessary Repairs Exception: Essential repairs may be carried out by any co-owner without prior agreement. - Lacey v McConville (2020 SLT (Sh Ct) 237) clarified that 'necessity' does not equate to economic convenience but rather essential preservation. Tenement Properties: Special provisions apply under the Tenements (Scotland) Act 2004. Division and Sale of Common Property **Absolute Right to Terminate**: Co-owners may terminate the co-ownership arrangement, subject to specific exceptions. **Primary Remedy**: Division of the property among co-owners is the preferred remedy. - If division is not feasible, the property is sold, and proceeds are split. **Key Cases**: - *Upper Crathes Fishing Ltd v Bailey's Exrs (1991 SLT 747)* -- Sale follows when division proves impractical. - The key legal question was whether division was possible or whether a sale of the property was the only viable option. - The court ruled that physical division of the fishing rights was impractical, given the nature of the property (fishing rights cannot be easily split). - This case confirms that when division is not feasible---either due to the physical nature of the property or practical constraints---the property can be sold as a last resort. - *Thom v Macbeth (1875 3 R 161)* -- Division should be attempted first. - The key question was whether the court could order a sale immediately or whether division had to be attempted first. - The court ruled that **division must be attempted as the primary remedy**. Sale is only considered if physical division is found to be impractical. Since the property could feasibly be divided, the court ordered a **physical division** rather than an outright sale. - This case established the division is the preferred remedy as it allows co-owners to retain their shares without forcing the loss of the entire asset. **Judicial Discretion**: Courts have discretion regarding the remedy based on fairness and practicality. - McKenzie v Nutter (2007 SLT (Sh Ct) 17) - Scrimgeour v Scrimgeour (1988 SLT 590) - Exceptions -- Items of Common and Indispensable Use: - Division and sale do not apply to assets essential to all owners (Bell, Principles, s. 1082). - Example: Shared staircases, communal gardens, etc. **Matrimonial Homes Exception**: The Matrimonial Homes (Family Protection) (Scotland) Act 1981 s.19 restricts division and sale in cases involving family homes. - Milne v Milne (1994 SLT (Sh Ct) 57) confirmed protection for matrimonial homes. **[Lecture 2.2 -- Possession ]** **Possession as a Protected State** Legal Principle: Possession is safeguarded to maintain peace and order. - Stair, Inst. 2.1.22: Recovery of possession must follow legal processes, not force. - Even wrongful or unlawful possession enjoys protection against dispossession by force. - Case: Matheson v Stewart (1872) 10 M 704 -- Protects possession regardless of entitlement. **Elements of Possession** - Physical Element (Corpus): Physical control or detention of the object. - Mental Element (Animus):Intention to use and control the object. **Types of Possession** Natural Possession: Direct possession by the individual. Civil Possession: Possession held through agents or tenants on behalf of the possessor. **Acquisition and Loss of Possession** Acquisition: Requires both physical control (corpus) and intention (animus). Loss of Possession: Occurs through: 1\. Loss of Control. 2\. Loss of Intention. 3\. Adverse Possession by Another Party. - Ross's Dairies Ltd v Glasgow Corporation (1972 SLT (Sh Ct) 48): Possession continues during temporary absence (possession animo solo). **Protection of Possession** Right to Resist Dispossession: - Legal action can prevent unlawful dispossession. - Stair, Inst. 2.1.22 refers to the remedy of "spuilzie." Requirements for Action: - Proof of possession and unlawful dispossession by the defendant. Defences to Dispossession Claims: - Consent: Irving v McKartney (1662) - Lawful Authority: Scot v Banks (1628) - Self-defence: Legitimate defence of property (Stair). **Additional Rights of Possessors** Right to Fruits of Property: Possessors in good faith may retain fruits produced by the property. - Stair, Inst. 2.1.23; Erskine, Inst. 2.1.25. Right to Recompense for Improvements: Good faith possessors may claim compensation for improvements. - Barbour v Halliday (1840). Right to Recompense for Maintenance: Bankton, Inst. 1.9.42. Good Faith Requirement: Essential for claiming rights to fruits, improvements, and possibly maintenance. - Defined by Erskine, Inst. 2.1.25 **[Lecture 3- original acquisition]** - General overview of original acquisition - Key methods 1. Occupatio 2. Specificatio 3. Commixtio and confusio 4. Accession - Rights of possessors in good faith - Positive prescription 1. **Original acquisition: definition** - Ownership is acquired without reference to a previous owner. - Distinction from derivative acquisition (acquisition from an existing owner). - **Key Consequence:** Ownership through original acquisition is unaffected by defects in a prior owner's title. 2. **Occupatio (Occupation)** **Definition**: Acquisition of ownership by **taking possession of ownerless corporeal moveable property.** Primarily applies to **wild animals** (not commonly applied to inanimate property). **Scope**: Restricted to ownerless property (res nullius). **Appropriation (Taking Possession)**: Ownership occurs when appropriation is complete. - Appropriation can be considered complete even if in progress: - Bell, Principles, s. 1289: Property is vested during fair and continued attempts to appropriate. - Sutter v Aberdeen Arctic Co (1861) 23 D 465: Appropriation is valid even if the taking is unlawful. - Stair, Inst. 2,1,33: The act of possession need not follow legal processes. **Loss of Ownership (Wild Animals -- Ferae Naturae)**: Ownership **depends on control**: - If control is lost, ownership is relinquished. - If an animal returns habitually, ownership persists. - Ownership is lost if the habit of returning ceases (Stair, Inst. 2,1,33). If an animal escapes, ownership continues **if the owner actively pursues it** with a reasonable chance of recovery (Erskine, Inst. 2,1,10). If no pursuit occurs, the animal becomes **ownerless (res nullius).** 3. **Specificatio (Specification)** **Definition:** - Ownership acquired by creating a new thing (species) from materials belonging to another person without an agreement. - Reid, Law of Property in Scotland, para. 559: The key is transformation into a new item or species. **Scope and limits:** - Specificatio **does not apply if creation is done with the owner's consent or agreement.** - Wylie and Lochhead v Mitchell (1870) 8 M 552: Agreement excludes specificatio. - Kinloch Damph Ltd v Nordvik Salmon Farms Ltd (1999): Developing animals over time is **not** specificatio. **Operation of specificatio:** - A **new object** must emerge where materials cannot be returned to their previous state (Erskine, Inst. II,1,16). - McDonald v Provan (1960 SLT 231) -- The maker of the new object owns it. **Compensation:** - The original material owner is entitled to compensation for the value of the materials (International Banking Corporation v Ferguson Shaw & Sons (1910 SC 182)). **Bad faith makers:** - **If** the maker acts in bad faith, compensation rights may be stronger for the material owner (*Bell, Principles, s. 1298*). - Roman law offers differing perspectives, with ownership potentially resting with the original material owner. 4. **Commixtio and Confusio** **Definition**: - Occurs when **corporeal moveable property from two or more owners** is mixed together. - **Commixtio** -- Mixing of solids. - **Confusio** -- Mixing of liquids. **Key Principles**: - If the items can no longer be separated, they are **owned in common** based on each party's contribution. - *Stair, Inst. 2,1,36-37*: Ownership is proportionate to the value of each owner's contribution. 5. **Accession** **Definition**: When **two pieces of property become joined**, one (the accessory) becomes subsumed by the other (the principal). - *Reid, Law of Property in Scotland, para. 570*: Ownership of the principal extends to the accessory. **Effects**: If the accessory is moveable and the principal is land, the accessory becomes **heritable (landed property)**. - Severing the accessory **does not alter ownership** -- it remains with the principal's owner. **Forms of Accession**: 1\. Moveables to Land 2\. Moveables to Moveables 3\. Land to Land 4\. Accession by Fruits (e.g., crops, offspring of animals). **Criteria for Accession**: 1\. Physical Attachment 2\. Functional Subordination -- The item serves the land or another property. 3\. Permanency *Reid, para. 572*: Subjective intention is irrelevant. **Case References**: - *Dowall v Miln (1874) 1 R 1180* -- Physical attachment that causes damage upon removal indicates accession. - *Christie v Smith's Executrix (1949 SC 572)* -- Accession can occur even if the item rests by weight alone. - *Fife Assessor v Hodgson (1966 SC 30)* -- Functional subordination depends on the purpose of attachment. **Land to Land -- Alluvion**: - Gradual natural expansion of land by water increases the landowner's property. - Distinction from **avulsion** (sudden land changes that do not affect ownership). - Erskine, Inst. II,1,14: Alluvion changes ownership; avulsion does not. 6. **Rights of Good Faith Possessors** Definition: A non-owner who reasonably believes they own property can retain fruits or benefits derived from it. **[Week 4 (Part 1): General Principles of Transfer]** Content Overview 1\. Requirements for transfer. 2\. Valid, void, and voidable transfers. **Part 1: Requirements for Transfer** General Requirements To transfer property, several fundamental elements must be satisfied: 1. Title: - Governed by the principle of nemo dat quod non habet ("no one can give what they do not have"). - Case: Chalmers v Chalmers (2015 SLT 793) -- Only a person with valid title can transfer ownership. 2. Capacity: - Both the transferor and transferee must have the legal capacity to engage in the transfer. 3\. Consent: - Transfer requires the mutual consent of the parties involved. - Case: Morrisson v Robertson (1908 SC 332) -- Lack of genuine consent can render the transfer void. 4\. Identification: - The subject of the transfer must be clearly identified. - Case: PMP Plus Ltd v Keeper of the Registers of Scotland (2009 SLT (Lands Tr) 2) -- Without specific identification of the property, the transfer may be invalid. - Sale of Goods Act 1979, s. 16: Ownership cannot pass until the goods are identified or ascertained. Specific Requirements for Different Types of Property 1\. Corporeal Heritable Property: - Ownership is transferred through registration in the Land Register. 2\. Incorporeal Property: - Real Rights: Transferred by registration or possession. - Personal Rights: Transferred through intimation to the debtor. 3. Corporeal Moveable Property: - Ownership is transferred by delivery, except where the Sale of Goods Act 1979 applies. **Part 2: Valid, Void, and Voidable Transfers** Valid and Void Transfers 1\. Valid Transfers: - Occur when all requirements are met. - The transferee becomes the lawful owner of the property. 2\. Void Transfers: - Arise when any requirement is not fulfilled. Consequences: - The transferee does not acquire ownership. - The property can be recovered from anyone in possession. - The transferee may have only a contractual remedy against the transferor. Voidable Transfers - A voidable transfer is initially valid but can later be set aside by the court under certain conditions. - Voidable transfers occur when: - All requirements are met, but the law deems the transferee should be deprived of the transfer's benefits. - Protection of Third Parties: - A voidable transfer cannot typically be recovered from a third-party acquirer in good faith (Stair, Inst. 4,40,21). - Conveyancing (Scotland) Act 1924, s. 46: Codifies third-party protection. Examples of Voidable Transfers 1\. Transfers Induced by Fraud: - MacLeod v Kerr (1965 SC 253) -- Fraudulently obtained transfers can be voidable but remain valid until set aside. - Contrast: Forged transactions are void and never valid at any stage. 2\. Gratuitous Transfers by Insolvent Persons: - Transfers made shortly before sequestration or liquidation may be voidable. - Relevant statutes: - Bankruptcy (Scotland) Act 2016, s. 98. - Insolvency Act 1986, s. 242. - Case: MacDonald v Carnbroe Estates Ltd (2019 UKSC 57, 2019 SLT 1469) -- The Supreme Court upheld that gratuitous transfers made during insolvency proceedings could be reversed. 3\. Transfers in Breach of the "Offside Goals Rule": - A transfer is voidable if it breaches a pre-existing obligation. - Case: Rodger (Builders) Ltd v Fawdry (1950 SC 483) -- Breach of a prior contractual obligation (e.g., selling to a second buyer after agreeing to sell to the first). The Offside Goals Rule Requirements: 1\. Pre-existing Obligation: - The seller must have already contracted with a prior party to sell or transfer the property. - Case: Wallace v Simmers (1960 SC 255) -- No breach if no enforceable obligation exists. 2\. Grant in Breach of Obligation: - The seller grants the property to another party in violation of the prior agreement. - Rodger (Builders) Ltd v Fawdry: The seller's breach rendered the transfer voidable. 3\. Bad Faith or Absence of Value: - The transferee must have acted in bad faith or failed to provide value for the property. Summary - The transfer of property is subject to key principles of title, capacity, consent, and identification. - Valid transfers result in lawful ownership, while void transfers do not. - Voidable transfers are initially valid but can be challenged, especially in cases of fraud, insolvency, or breaches of pre-existing obligations. - The offside goals rule prevents parties from undermining prior commitments, protecting the integrity of property transactions. **Week 5: Transfer of Landownership** **Lecture Content Overview** 1\. The role of registration in landownership. 2\. Determining ownership and curing defects. 3\. Inaccuracies in registration and rectification. 4\. Remedies for failed transfers. **Part 1: The Role of Registration** **Terminology** - **Disponer**: The person transferring ownership. - **Disponee**: The person receiving ownership. **Three Stages of Transfer** 1\. **Conclusion of Contract**: Agreement to transfer the property. 2\. **Delivery of Disposition**: A formal document transferring the property. 3\. **Registration**: The disponee becomes the owner only upon registration. **Importance of Registration** - **Key Rule**: Ownership is acquired only through registration in a public register (*Burnett's Tr v Grainger, 2004 SC (HL) 19*). - Historical Background: - Registration was introduced in the *Register of Sasines* by the *Registration Act 1617* to prevent fraud. - Shortcomings: The *Register of Sasines* made ownership verification difficult. - Reforms: - The *Land Register* was introduced in 1981 by the *Land Registration (Scotland) Act 1979*. - It was later updated and replaced by the *Land Registration etc. (Scotland) Act 2012*. **The Land Register** - A **register of title** maintained by the Keeper of the Registers of Scotland. - Key Features: - Based on a **cadastral map** (2012 Act, s. 2) to plot individual properties. - Consolidates information for each property into a single **title sheet** (2012 Act, ss. 3-5). - Provides **guaranteed title** (discussed later). **Registration Requirements** - Registration must comply with the following (*2012 Act, ss. 22-26*): - Consistency with the Keeper's duties. - Exclusion of **souvenir plots**: Small plots with no practical utility (s. 22(2)). - Adequate description to enable boundary delineation on the cadastral map (s. 23(1)(c)). - Compliance with legal formalities (e.g., Requirements of Writing (Scotland) Act 1995). - Ownership only transfers upon registration completion. **Part 2: Determining Ownership** **The Problem** - Ownership depends on registration, but errors can occur. - *Nemo dat quod non habet*: A person cannot transfer greater rights than they possess. - This can lead to situations where the register lists someone as the owner who is not entitled to ownership. **Curing Defects in Title -- Positive Prescription** **Positive Prescription Requirements** (*Prescription and Limitation (Scotland) Act 1973, s. 1*): 1. **Title**: A deed registered in the Land Register or recorded in the Register of Sasines that could grant ownership. 2. **Possession**: Continuous, open, and peaceful possession for 10 years without judicial interruption. *Case*: *Hamilton v McIntosh Donald (1994 SLT 793)* -- Possession must be clear and uninterrupted. **Effect of Positive Prescription**: - The possessor acquires ownership after the 10-year period. - The original owner loses ownership without compensation. **Cutting Prescription Short -- Section 86 of the 2012 Act** - Allows earlier ownership transfer under specific conditions: - The disponer appears as the owner in the Land Register. - Possession is continuous for at least one year (by either the disponer or disponee). - The disponee acts in good faith. - If ownership transfers under s. 86, the original owner is entitled to compensation (*2012 Act, s. 94*). - **Limitation**: Section 86 does not apply to properties in the *Register of Sasines*. **Part 3: Inaccuracies and Rectification** **Inaccuracies** A title sheet is inaccurate if it: 1. Misstates the legal or factual position. 2. Omits required information. 3. Includes information that is not permitted (*2012 Act, s. 65(1)*). **Rectification of Inaccuracies** - Inaccuracies can be corrected: - By the Keeper's initiative (*2012 Act, s. 80*). - Following judicial determination (*2012 Act, s. 81*). - Distinction: - **Manifest Inaccuracy**: Clear and requires immediate rectification. - **Non-Manifest Inaccuracy**: Requires further investigation or judicial decision. **Keeper's Warranty and Compensation** - The Keeper guarantees the accuracy of the title sheet at registration (*2012 Act, s. 73*). - If rectification breaches the warranty, compensation is payable (*2012 Act, s. 77*). - Exceptions (*2012 Act, s. 78*): - Applicant's knowledge of the inaccuracy. - Inaccuracy resulting from the applicant's carelessness. **Part 4: Remedies for Failed Transfers** **Risk** - Default Rule: **Risk passes with the contract**. - *Case*: *Sloan's Dairies v Glasgow Corporation (1977 SC 223)* -- Buyer bears the risk once the contract is concluded, even if ownership has not yet transferred. **Warrandice (Implied Guarantees)** 1. The buyer will not be **evicted** from the land. - *Case*: *Clark v Lindale Homes Ltd (1994 SC 210)* -- Actual eviction is required to enforce this warranty. 2. The land is not subject to **unduly onerous burdens**. - *Case*: *Lothian & Border Farmers v McCutcheon (1952 SLT 450)* -- Protects buyers from hidden obligations or liabilities. **Contracting Out**: Warrandice can be limited or excluded by agreement. **Summary** 1. Registration is central to landownership in Scotland, with ownership only transferring upon proper registration. 2. Positive prescription allows defects in title to be cured after continuous possession, but Section 86 offers an accelerated route under specific conditions. 3. Inaccuracies in registration can be rectified, and the Keeper provides limited guarantees and compensation for errors. 4. Remedies for failed transfers include risk allocation and warrandice, offering buyers protection against eviction and hidden burdens. **Week 6: Landownership** **Content Overview** 1\. The nature of landownership. 2\. The extent of ownership. 3\. The owner's right to possession. 4\. Public rights over land and water. 5\. Common interest. **Part 1: The Nature of Landownership** **Feudal Tenure and its Abolition** - Prior to **28 November 2004**, landownership in Scotland was not absolute due to the **feudal system**. - Land was held under a hierarchical system of **superiors** and **vassals**, ultimately leading to the Crown. - Origin: Medieval system of land grants for military support. - Over time, the powers of superiors diminished to little more than charging fees for waivers of restrictions in title deeds. - Exception: **Udal Tenure** in Orkney and Shetland, which predates feudalisation (though some land there was later feudalised after 1468--1469). **Abolition of Feudal Tenure** - **Abolition of Feudal Tenure etc. (Scotland) Act 2000**: - Feudal tenure was abolished on **28 November 2004**. - Land is now owned outright. **Part 2: The Extent of Ownership** **General Rule** - Ownership includes **everything beneath the ground** and **airspace above** (*a coelo ad centrum*). - *Case*: *Brown v Lee Construction Ltd (1977 SLT (Notes) 61)*. - Exceptions: - **Separate Tenements**: Ownership of strata beneath or above the ground may be separated from the land itself. - **Tenement Buildings**: Rules differ under the *Tenements (Scotland) Act 2004*. **Separate Tenements** - Separate from ownership of land but still considered **real rights**. Two types: 1. **Legal Separate Tenements**: - Example: Salmon fishing rights (*McKendrick v Wilson, 1970 SLT (Sh Ct) 39*). 2. **Conventional Separate Tenements**: - Example: Mineral rights (*Campbell v McCutcheon, 1963 SC 505*). **Tenement Buildings** - Defined as buildings divided into multiple ownership units (*Tenements (Scotland) Act 2004, s. 26(1)*). - Default rules for ownership (*ss. 2--3*): - Internal and external walls. - Ground underneath (*solum*). - Roof and airspace above it. - Shared areas (e.g., staircases, lifts, adjacent ground). **Part 3: The Owner's Right to Possession** **Exclusive Possession** - Owners have the **exclusive right** to possess all parts of their land. - Infringement occurs if someone interferes or encroaches without permission or lawful authority. **Trespass** - Limited self-help remedies (*Wood v North British Railway Company, 1899 2 F 1*). - Normal remedy: **Interdict** (a court order to stop trespass). - Interdict is discretionary (*Winans v Macrae, 1885 12 R 1051*). - Damages are not typically awarded (*Graham v Duke of Hamilton, 1868 6 M 965*). **Encroachment** - Courts can order removal of encroachments, but this is also discretionary (*Jack v Begg, 1875 3 R 35*). - Landowners may use **self-help** within limits. - Encroachments that accede to the land become the property of the landowner. **Part 4: Public Rights over Land and Water** **Categories of Land** 1. Dry Land. 2. Land Covered by Water: - **Tidal Water**: Presumptively owned by the Crown. - **Non-Tidal Water**: Presumptively owned by adjacent proprietors. 3. **Foreshore** (land between high and low tide): - Presumptively owned by the Crown (except in Orkney and Shetland). **Access Rights Under the Land Reform (Scotland) Act 2003** - **General Rights**: - Public can access land for **recreational or educational purposes** or to cross land (*s. 1*). - Must be exercised **responsibly** (*s. 2*). - *Case*: *Tuley v Highland Council (2009 SC 456)* -- Access must not damage land or interfere with its use. - **Exclusions (*s. 6*)**: - Land near houses for privacy (*Gloag v Perth and Kinross Council, 2007 SCLR 530*). - Access by motor vehicles (*s. 9*). **Public Rights of Way** - Acquired through 20 years' uninterrupted public use (*Prescription and Limitation (Scotland) Act 1973, s. 3(3)*). - Requirements: - **Fixed Route** (*Rhins District Committee v Cuninghame, 1917 2 SLT 169*). - Between **two public places** (*Love-Lee v Cameron, 1991 SCLR 61*). - **Adverse and uninterrupted use** for 20 years (*Cumbernauld & Kilsyth DC v Dollar Land, 1992 SLT 1035*). **Public Rights Over Water** - **Foreshore and Tidal Waters**: Navigation, white fishing, and recreation. - **Non-Tidal Waters**: No inherent rights unless acquired through 40 years' use (*Wills' Trs v Cairngorm Canoeing and Sailing School Ltd, 1976 SC (HL) 30*). - Navigation defined broadly (*Crown Estate Commissioners v Fairlie Yacht Slip Ltd, 1979 SC 156*). **Part 5: Common Interest** **Definition** - Arises where one person's property use may affect another's interests (*Reid, Law of Property in Scotland, para. 355*). **Key Examples** 1. **Tenements**: - Lower proprietors must provide **support**, and upper proprietors must provide **shelter** (*Tenements (Scotland) Act 2004, s. 8*). 2. **Riparian Rights (Water Flow)**: - Adjacent landowners must not obstruct the natural flow of water (*Morris v Bicket, 1864 2 M 1082*). 3. **Lochs**: - Proprietors of parts of non-tidal lochs may use the entire loch (*Mackenzie v Bankes, 1878 5 R (HL) 192*). **Summary** 1. Landownership in Scotland shifted from **feudal tenure** to outright ownership in 2004. 2. Ownership extends **vertically and horizontally**, with exceptions for separate tenements and shared tenement buildings. 3. Owners have exclusive possession rights, but these are subject to limitations, including **public rights of access** under the *Land Reform (Scotland) Act 2003*. 4. **Common interest** governs situations where property rights interact, ensuring fairness and minimal interference among proprietors.