acquisition of ownership

Question 1

what is patrimony? and an exception

Answer 1

patrimony is the totality of a persons assets and liabilities, most people only have one; exception in trusts when a trustee and their own and that of beneficiary

Question 2

list of subordinate real rights (5):

Answer 2

servitude, negative real burden, proper liferent, right in security, lease of immoveable property

Question 3

what is a subordinate real right?

Answer 3

form of real right, held by someone other than the owner; in scotland there is a closed list (5); cannot be moveable property

Question 4

what is the meaning of ‘prior tempore potoir jure’

Answer 4

earlier by time, stronger in right (e.g. more than one bank provides loan, the one that registered first will get back more of their loan in case of bankruptcy)

Question 5

who owns abandoned property, treasure, and stolen property

Answer 5

first 2 - the crown; in stolen, transfer of title is derivative - cant give what you dont own therefore no change in original ownership

Question 6

Erskine II, 1, 1:

Answer 6

defines ownership as ‘the right of using and disposing of a subject as our own, except insofar as we are restrained by law or paction.’

Question 7

differences between derivative and original acquisition of ownership:

Answer 7

derivative most common - ownership passes from person A to person B (or from someone lawfully authorised to act on their behalf);
original is where ownership acquired by some legal process (law bestows new title on acquirer), regardless of anyone’s consent but the acquirer

Question 8

examples where original acquisition takes place (4):

Answer 8

• occupancy: where ownerless object is taken into possession
• accession: where one object becomes part of another e.g. painting a car
• specification: where objected altered so it loses identity, e.g. barley into ale
• confusion/commixtion (positive prescription): mix of solids/liquids of the same type; results in co-ownership

Question 9

what is the publicity principle?

Answer 9

an external act (registration, intimation or delivery) that completes transfer of title - consent/agreement is not enough, an external/overt act is needed; acts that affect third parties should be made public

Question 10

Burnett’s Tr v `Grainger;

Answer 10

‘the disponee who has not registered his title enjoys no real right in the subjects’ (case where solicitors failed to register deed, before original seller went bankrupt and her property was sequestrated - no damages other than with own solicitor for breach of duty

Question 11

why would a void title happen? (2)

Answer 11

1. granter did not have title himself, so title itself was void
2. granter did have right, although fatal defect in the process making the act of transfer void, hence the granter’s title void (e.g force and fear, or no consent)

Question 12

what is the latin phrase for ‘you cannot give what you do not have’ / if the granters title is void, the grantee’s title is normally void?

Answer 12

nemo dat quod non habet / nemo plus rule

Question 13

how does a voidable title arise?

Answer 13

by validly acquiring property but in a way contrary to the rights of another, that other person has the option of avoiding the title

Question 14

remedies in voidable transactions? (3)

Answer 14

1. can have title reconveyed (demand re-transfer of ownership)
2. reduction (only if there is deed of transfer to be reduced, not avail in sale of goods)
3. can be made absolutely good through good faith and value

Question 15

what is the latin phrase for a non-owner?

Answer 15

a non domino

Question 16

main case in offside goals rule? and what happened?

Answer 16

rodger (builder) ltd v fawdry 1950; F concluded missives to sell with R although were unable to pay immediately; F then sells to MB who pays, registers and becomes owner.
R raised action of reduction against MB since the missives hadnt been validly rescinded, and MB knew this therefore acquired the right in bad faith; court agreed and disposition was reduced

Question 17

wallace v simmers:

Answer 17

1 of the 4 conditions of the offside rule is that buyer 1’s right must have been capable of becoming a real right (father agrees with daughter - personal right never in writing or with serious intent)

Question 18

what is accretion of title?

Answer 18

where a grant from a non-owner to another can be validated if non-owner subsequently gains title - without a further deed required; also applies to subordinate rights

Question 19

exception to nemo plus rule?

Answer 19

if an unregistered holder (someone who has the power to complete title/holds a disposition) instead of registering, dispones to another

Question 20

3 stage process to acquire ownership by voluntary transfer:

Answer 20

contract (missives); settlement (delivery of disposition); registration of disposition - real right acquired

Question 21

what is warrandice?

Answer 21

the guarentee given by the granter to the grantee that the title is good; deed generally contains an express grant of warrandice, however it is implied by law if deed is silent

Question 22

what is an advance notice?

Answer 22

covers the buyers risk between settlement and registeration where no real right is acquired yet; covered in LR(S)A 2012 Part 4, advance notice creates a 35 day period of protection where buyer’s disposition will trump any new entries (in case of seller bankruptcy e.g.)

Question 23

which statute governs corporeal moveables?

Answer 23

Sale of goods act 1979 - applies to all cases where transfer is in implement of a contract of sale

Question 24

how are personal rights transferred? (incorporeal moveable property)

Answer 24

by assignation completed by intimation (transfer of right is by indimation, formal notice to the debtor)
-upon intimation, the personal right passes from the cedents patrimony to the assignee’s

Question 25

exceptions where debtor can assign the right to pay: (3)

Answer 25

1. delegation (all 3 parties consent); 2. subcontract of performance; 3. contract itself permits transfer by debtor

Question 26

what is the assignatus utitur jure auctoris rule?

Answer 26

all exceptions(defences) competent against cedent before intimation are relevant against assignee, as payment/compensation etc

Question 27

scottish widows fund v buist:

Answer 27

assignatus utitur rule; good faith of the assignee is irrelevant as a defence - assignee in no better place than the executor would be

Question 28

binstock miller & co ltd v e coya & co ltd:

Answer 28

(shield not a sword) - can’t recover money from assignees, only seller

Question 29

what does ‘the cedent is presumed to grant warrandice debitum subesse’ mean?

Answer 29

this is a guarantee that the claim being assigned exists in the form it appears to have - however this guarentee is only that the claim is payable to the cedent, not that it will actually be paid (no remedy for assignee if debtor goes bankrupt)

Question 30

effect of negative prescription on; land, corporeal moveables, sub real rights and personal rights

Answer 30

land - no effect schedule 3, real right of ownership cannot negatively prescribe;
corp move - ditto, exception s.8 after 20 years but unclear;
sub real rights - 20 years non use
personal rights - 5 years s.6

Question 31

requirements and effects of accession? (3 each)

Answer 31

requirements; physical attachment, accessory function subordinate to principle; permanent
effect; accessory becomes part of principle, change of ownership, conversion (if a was moveable, now heritable)

Question 32

leading case in accession?

Answer 32

brands trs v brands trs - intention of parties irrelevant in accession; only quasi-permanency required (if physical attachment used greater than necessary then it has acceded.

Question 33

requirement in specification?

Answer 33

nova species - a brand new thing must be manufactured from the materials of another

Question 34

whats the difference between the two categories of co-ownership?

Answer 34

common - the standard - each co-owner has a pro indiviso share which the law presumes equal unless stated otherwise;
joint - arises in trusts and unincorporated associations, where trustees do not have separate rights (pro indiviso) but assets are of joint property

Question 35

3 principles of possession?

Answer 35

‘every inch’, ordinary use permitted only, one cannot take excessive benefit at expense of others

Question 36

rafique v amin

Answer 36

repairs and alterations require unanamous agreement from all co-owners, to avoid excessive benefit

Question 37

exception to rafique case? (2 with cases)

Answer 37

1. unless alterations are minimal e.g. brass name plate. (barkley v scott)
2. if the repair is essential then no consent required (deans v woolfson)

Question 38

what are the exceptions to division and sale by the court (termination of co-ownership) (4)?

Answer 38

1. if the thing is common and indispensible use
2. if spouse/civil partner. - family law applies
3. if one owner is sequestrated
4. if co-owner has been contracted out of the right to raise an action - but is not binding

Question 39

legal possession requires what 2 elements?

Answer 39

physical control (corpus) and intention to possess (animus)

Question 40

difference between ownership and possession?

Answer 40

ownership is a legal relationship, whereas possession is factual e.g. man that steals watch has possession but not ownership - possessor does not require legal right or validity to item

Question 41

Parker v British Airways Board (English case):

Answer 41

held it is possible to possess without knowing, provided there is manifest intention of control of property (airport did not have sufficient control since vast public access)

Question 42

what does possession animo solo mean?

Answer 42

possession can be retained by the act of the mind only, physical act not necessary

Question 43

remedies to possession?

Answer 43

1. bona fide possessor (compensation for improvements made)
2. spuilzie (must prove possession and vitiously dispossessed) is a court action compelling return of the property (very rare now)
3. compensation - ordinary profits (income) and/or violent profits (penal damages) e.g. when tenant will not move out at the end of a lease