Deck 2- Transfer Flashcards Preview

PROPERTY > Deck 2- Transfer > Flashcards

Flashcards in Deck 2- Transfer Deck (18):

What are the three steps of the transfer process and at what stage does ownership pass

Contract, conveyance and external act
Ownership passes once all three are fulfilled


When will a title be void

When the transferors title was void (nemo data quod non habet)

When the contract or conveyance is fatally flawed- no capacity, no consensus, non-compliance with formalities


When will a title be voidable

When it's based on defective consent

1. Undue influence
Requires Relationship of trust, abuse of that trust and a benefit to the dominant party

2. Facility & circumvention
Requires facility, circumvention (deceit) and loss to the deceived party

3. Offside goals rule
If second grantee knows if first, ((Rodger builders v fawdry or Gibson v rbs) then it's their obligation to check first granted doesn't have a valid title


What are the remedies for a void or voidable title

Void- restitution
Voidable- deed can be reduced and property restored to granter


What are the essentials required for voluntary transfer

Capacity and consent

Agreement about parties, property and price


What is the publicity principle

Mutual consent is not sufficient for transfer (except under SOGA 1979)
An external act is also necessary. For land this is a registered deed and for corporeal moveables it's usually delivery.
The reason for this is that acts that could affect third parties should be made public so that the third parties are aware of them.


At what point does transfer take place

Once all three steps have been completed (contract, conveyance, external act) transfer is instantaneous. At that moment the ownership of the property switches- Scots property is unititular (Sharp v Thompson)


Sharp v Thompson

Construction company which sold the Thompsons the home went into receivership before the disposition was registered. The Bank of Scotland acquired a real right (security) before the Thompson she could take ownership so the thomsons ownership was subject to that real right. House of Lords seemed to suggest that at one point there was a sort of ownership held by the seller and another buyer at the same time which is contrary to the unititular nature of scots law. Nevertheless, Burnetts Tr v Grainger held that Sharp v Thompson lacked a clear ratio and should be construed as relevant only to the very narrow area of floating charges. The unititularity of property law was therefore confirmed.


Who carries the risk where payment and title do not coincide

The buyer who pays before acquiring title runs the risk of the sellers insolvency (Sharp v Thompson and Burnetts Tr v Grainger)
If ownership passes before payment, the seller assumes the risk.


What's a warrandice

It's a warranty or guarantee
S12 of the SOGA 1979 implies a warranty as does common lawwiyj property law usually the main concern is a guarantee of good title


If a contract is void does that mean a title is also void

No the validity of a property right is not dependent on the validity of a contract on which the title is based


What remedies are there if a title is voidable

You can simply demand that ownership is retransferred to you (Short's tr v Chung)
*note that w corporeal moveables ownership can't pass without delivery unless there's a sale)

If there's a deed of transfer (won't be with sale of goods) you can move to have it reduced
Two types of reduction
1) Catholic reduction- title is avoided. If X was owner and there's a transfer to Y and Ys title is avoided, X becomes owner again
2) reduction ad hunc effectum where title is avoided only in relation to the person who has avoided it but remains valid in relation to everyone else. This means if it's one of the parties who avoids it it's effect is Catholic but if it's by a third party it's effect is ad hunc effectum (Professor Gretton)


When the granters title is good what happens

If the grabters title is absolutely good then the grantees right will likewise be absolutely good except in certain circumstances, mainly where there is an existing third party right i.e. An inhibition or where the offside goals rule applies


When the granters title is voidable what happens

* If a voidable title is avoided it becomes void *

1) if the grantee knew the granters title was voidable, the grantees title is also voidable
2) if the grant is gratuitous the grantees title will be voidable, whether or not they knew that the granters title was voidable.
3) otherwise the grantee will acquire good title. See SOGA 1979 s23, "the buyer acquires a good title to the goods provided he buys them in good fats and without notice of the sellers defect of title"


Distinguish Morrison v Robertson and MacLeod v Kerr

Morrison v Kerr- as identity went to the essence of the contract, it's effect was to void the transfer. Therefore title could not pass on as it was void.
MacLeod v Robertson- identity didn't go to the root of the contract so the effect of fraud was not to leave the title void, although it was voidable. As it was a non-gratuitious sale and the buyer was not aware of the title being voidable, the buyer acquired good title.


Nemo principle

Nemo dat quod non Habet
No one can transfer what he does not have
Someone with a void title cannot pass on a valid title
A voidable title can be passed on as it remains valid until it is voided


Prior tempore, potior jure

Earlier by time, stronger by right

Esp with securities where one became a real right first (becomes a real right by being registered) it ranks above a later real right and will be paid first, for example


To what is the grantees right subject

It's subject for the existing real rights of third parties
Nemo dat quod non habet- if someone has a real right that is encumbered they can't pass on an unemcumbered real right

Nevertheless, the grantee is only subject to real rights and won't ordinarily be subject to the grantors personal rights