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Flashcards in Acquisition Deck (23):

To whom does bona vacantia fall?

It falls to the crown under common law and s1012 of the companies act


What is ownersjop

The ultimate real right
Almost limitless- usus, fructus, abusus


Ultimus haeres

Last heir
When someone dies intestate with no blood relatives , property passes to the crown who is everyones ultimus haeres.
It's administered by QLTR and net value of estate can later be claimed if heirs show up


What happens to treasure trove

It falls to the crown
Lord advocate v University of Aberdeen and Bulge


What happens to discarded property?

Mackenzie v Maclean held it falls to the crown but loss does not terminate ownership, there's an assumed negative prescription of 20 years (SCOTS LAW COMMISSION REPORT ON PRESCRIPTION)


How is ownership evidenced

Possession gives rise to presumption of ownership

Burden is on person bringing claim "ei incumbit probatio qui dictionary non qui negat"of


Common ownership

Two or more people sharing right of ownership
Share assumed to be equal (not physical division but right to equal use of every inch of the whole property- Erskine)
Only ordinary use is permitted (Carmichael v Simpson)
One co-owner can't take excessive benefit at the expense of others
Agreement to repairs or alterations must be unanimous unless emergency repair. (Rafique v Amin). If agreement isn't an option then division and sale. (Morrison v Kirk)
No one can be forced to remain in co-ownership "nemo compellitur invitus detineri"
Court can't refuse action of division or sale (Upper Crathes v Baileys Exrs)


Rafique v Amin

With common ownership, repairs or alterations must be unanimous unless it's an emergency repair.

Note that tenements aren't common ownership and are governed by separate rules


Forms of original acquisition

Specification- creation of new nova species- object so altered as to lose identity

Accession- when one thing is overwhelmed by another and becomes part of the other object

Positive prescription- when a period of time passes

Occupancy- taking control of ownerless object


Carmichael v Simpson

With common ownership only ordinary use is permitted


Erskine on common ownership

Co owners have the right to use "every inch" of the property


Morrison v Kirk

Common owner has absolute common law right to insist on action of division or sale
If division is impractical then the whole property can be sold and the proceeds split


Nemo compellitur invitus detineri

No one will be forced to remain in common ownership


Upper Crathes v Baileys Exrs

The court (subject to one exception) has no discretion to refuse action of division or sale


Bona vacantia

Ownerless goods.
Falls to crown from common law and Companies Act 2006 s1012


What are the two elements of possession

Physical element: exercising control over property
Mental element: knowledge and intention


What are two presumptions of possession

That possession is lawful
That the possessor is owner
These can be overturned through consent or court order


What are good faith possessors entitled to

The fruits
Damages for improvements they made


What is spuilzie

Old Scottish remedy
Prove former possession and unlawful dispossession
It's a court order to restor possession plus profits
Defence to action for spuilzie is the defence of lawful authority


What's a remedy when someone interferes with your possession

1) action for delivery
2) interdict available against party who trespasses on moveable property that is capable of being occupied
3) spuilzie (no longer used) for unlawful dispossession
4) action for interference w possession (but must be possessor - see nacap v moffat plant and north Scottish helicopters v united technologies)


Distinguish the two cases which deal with an action for interference with possession

In north Scottish helicopters v united technologies, the company hired a helicopter which caught fire because of a fault- they sued for damages which included lost business court held that as they were possessing for their own benefit they could reclaim for losses suffered
In Nacap v Moffat plant, they weren't the possessors of the pipes, as they didn't have exclusive use of them


What are the essentials for voluntary transfer

- capacity and consent
- agreement on parties, property and price


What is evidence of land ownership

An entry in the land register will give rise to a presumption of title but an entry in the register of sasines will not