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Flashcards in Essential Cases Deck (18):
1

Rafique v Amin

In the case of common ownership, agreement is required for repairs or alterations unless it is an emergency repair.

2

Nacap v Moffat Plant

In order to bring a case for loss of possession, you must actually

3

North Scottish Helicopters Ltf v United Technologies Corporation

This case held that were you can show you we're

4

Rodger (Builders) Ltd v Fawdry

The offside goals rule is a common law principle under which a transaction might be invalidated by the grantee's bad faith. The main authority for the rule is Rodger (Builders) Limited v Fawdry & Others 1950 SC 483 in which a seller entered into separate and competing sale contracts with different purchasers. The title in favour of the eventual purchaser was contested and reduced on the grounds that the eventual purchaser knew of the earlier sale contract in favour of the first purchaser and had not independently investigated its status. The Court in the Fawdry case held that a purchaser is bound to enquire into the nature and result of such a competing previous contract and cannot rely on assurances given by the seller.

5

Gibson v RBS

While in this case, the subsequent right (the security) had been obtained after the Gibsons had intimated their intention to exercise the option and a completion date for implementation had been set, making their rights under the option more analogous to a purchaser's rights under missives, Lord Emslie indicated that he would still have entertained the claim by the Gibsons if they had not exercised the option before the security was taken. The proposition that the bad faith exception could apply to options and to rights of pre-emption in general could not at this stage be regarded as unsound, and that such rights ought therefore to qualify for the category of rights capable of being made real.

6

Scottish Widows Fund v Buist

You can't assign a greater right than that which you have (fraudulent application)

7

Campbell v McCutcheon

Unless suitably qualified, a contract for the sale of land includes the minerals – with the result that if the minerals are not in fact included (as is usually the case), the purchaser can rescind.

8

Snowie v Museum Hall

Case concerning a clause in the deed of conditions relating to a flatted development of 15 apartments. The clause provided that no trade, business or profession could be carried on in any of apartments and also that each apartment could only be used as a private house and could not be used, even in an ancillary capacity, for any trade business or profession. In terms of the missives, Museum Hall were entitled to impose such conditions as they deemed appropriate in a deed of conditions subject to the qualification that the deed should contain no unduly onerous or unusual conditions.

The Snowies sought to resile from the missives on the basis that the condition restricting trade was unduly onerous, arguing that it went so far as to prevent professional people from taking work home. Lord Glennie disagreed with this interpretation taking the view that occasional use of the home for work purposes would not breach the conditions and noting that such conditions were not uncommon and featured in a standard volume of styles (Green’s Practice Styles).

9

Swift Advances Plc v Martin

pre-action requirements were aimed at protecting against the situation where a creditor takes action rapidly following a debtors default without communication with the debtor and without making any accommodation allowing the debtor to remain in occupation of the property with an adjusted payment regime. However, in this case, both parties were held to have made reasonable efforts to reach an agreement albeit those efforts had failed and Swift were found to have complied with the pre-action requirements.

10

Dick v Clydesdale Bank

Dick v Clydesdale Bank
Security: Creditor has obligation to sell for the best price, but at the time it chooses, provided it reasonably believes this will get it the best price.

11

Crieff Highland Gathering Ltd v Perth & Kinross Council

Lord Pentland found that the Council was in breach of its obligations under the lease but concluded that the breaches were not material and therefore Crieff Highland were not entitled to terminate the lease.

Not material as :
The fact that both parties were able to make full and uninterrupted use of the park which did not have to be closed to the public as a result of the condition of the property.

The shortcomings were not of such fundamental gravity to touch on the very existence of the contract. There was no evidence that Crieff Highland considered carrying out the works themselves with a view to recovering the costs from the Council or of taking an action for specific implement to force the Council to carry out the works nor even did Crieff Highland take steps to call a formal meeting (which it could have done under a procedure contained in the lease).
The lease was a long one with over 30 years left to run. The tenant had carried out repairs, had co-operated well with Crieff Highland in preparing for the Highland Gathering in 2010 and had expressed its intention to continue to run the park as a public facility and fulfil its obligations under the lease. (Indications of the Council’s future intentions are of importance because the courts have traditionally been reluctant to allow a rural lease without an irritancy clause to be brought to an end in circumstances where the tenant has made it clear that it intends to perform its side of the contract during the remaining periodi of the lease- see below.)

Lord Pentland took into account that the cost of the repairs amounted to just over £9,000 and that the overall condition of the subjects seemed to be adequate for them to be used without significant difficulty.

12

Hill of Rubislaw v Rubislaw Quarry Aberdeen

When they say a burden must carry a benefit in property they mean that it must benefit the owners from time to time REGARDLESS OF WHO THEY MAY BE
Held that condition was praedial as protected the rental value of adjacent properties- this is praedial as it's independent of the identity of the particular owner or landlords.
Considered the purpose built nature (as future owners therefore likely to use office blocks for same purpose) and proximity of the developments.

13

Moncrieff v Jamieson

Added to the fixed list of servitudes
Parking
Musnt be repugnant w ownership
May be created by acquiescence

14

Compugraphics International v Nikolic

Added projection to fixed list of servitudes

15

Drury v McGarvie

Servitudes: Burdened owner must respect the servitude- held to standard of a reasonable person using the servitude.

16

Karl Construction v Palisade Properties

Automatic grant if diligence on the dependence .
2) control of use
3) sanctioned by law as clearly set out in court rules
4) aim was effective justice
5) not necessarily proportionate, circumstances should be considered

Violation found, rules amended

17

South Lanarkshire Council v McKenna

Legislation allowing repossession without court discretion, Housing (Scotland) Act 2991 allowed termination of lease without reasons or chance to appeal
1. Was this lawful? Yes
2. Legitimate aim? Yes
3. Proportionate? As long as we read s36 as allowing the court to assess proportionality.

18

Collins v Sweeney

So, equity or fairness can form no defence to an action of division and sale - since the right to an action for division and sale is absolute