Head 13: Original acquisition

Question 1

3 cases of original acquisition

Answer 1

1. New property (manufactured by the person who becomes owner)
2. Existing but unowned property
3. Existing and owned property (e.g. prescription)

Question 2

Occupatio is…

Answer 2

Acquisition of an ownerless thing by seizing possession of it.

Question 3

Occupatio applies to…

Answer 3

moveable property - not land

Question 4

How can one abandon ownership?

Answer 4

Requires:

1. Physical act (usually throwing away)
2. With the intention of abandoning it (ie difference between leaving for safekeeping and throwing in a bin)

Question 5

Is abandoned property available for occupatio?

Answer 5

NO - because abandoned property automatically belongs to the Crown.

Similarly, since negative prescription applies to ownership of movables after 20 years - if it takes place then it becomes the property of the Crown and cannot be obtained by occupatio.

Question 6

Lord Advocate v University of Aberdeen & Budge 1963

Answer 6

Treasure found by Aberdeen Uni. Who owned it? Since it was property which once had an owner and thus had been abandoned it belonged to the Crown.

Question 7

Mackenzie v Maclean

Answer 7

Beer cans case. Held that the cans which had been thrown in the bin belonged to the Crown since they’d been abandoned.

Question 8

What is the rule with respect to occupatio and wild animals which regain liberty?

Answer 8

If a wild animal is caught then escapes the rule is that it does not fall to the Crown but is once again available for occupatio.

Contrast with the normal rule - if you find something then lose it this counts as abandoning and therefore the property goes to the Crown - thus it can’t be acquired by occupatio again.

Question 9

Valentine v Kennedy 1985

Answer 9

Shows that the distinction between wild and domestic animals is blurred. In this case involving the rainbow trout escaping from the loch it was held that they were not wild animals so when they escaped and were caught by a third party they were guilty of theft.

Question 10

What rules provide for lost / abandoned property in the street?

Answer 10

Civil Government (S) Act 1982 Part VI

Question 11

What should you do if you find lost / abandoned property in the street?

Answer 11

If you come across lost or abandoned property, you are not under an obligation to pick it up. But if you do pick it up you are under an obligation to surrender it to the police without unreasonable delay. On receipt the police must take reasonable steps to try to ascertain the owner. After two months the police have the possibility of selling the property or of giving it to the finder.

If the real owner turns up within a year then they have certain rights:

• If it has been given to the finder then you can take it back
• If it has been sold you can recover the net proceeds of sale (provided they exceed £100).

Question 12

What is accession?

Answer 12

When two pieces of corporeal property are joined together in such a way that one (the accessory) is considered to have become subsumed in the other (the principal)

Question 13

What are 3 essential elements of accession?

Answer 13

1. Physical union
2. Functional subordination
3. Permanancy

Question 14

Accession works in a way which is …….

Answer 14

Entirely mechanical - entirely without reference to the intention of the parties.

Question 15

Shetland Islands Council v BP Petroleum Development Ltd 1990

Answer 15

Oil refinery on Shetland built without ownership of the land by BP. Refinery held to have acceded to the land - the parties intentions were irrrelevant.

Question 16

What are the 3 legal effects of accession?

Answer 16

1. Accessory becomes part of the principal
2. Conversion - accessory is moveable and the principal is heritable, the accessory becomes heritable
3. Extinction of existing title to accessory.

Question 17

What happens if accession happens then the parts are separated?

Answer 17

The first and second legal effects are reversed (the accessory becomes and piece of property in its own right and there may be a reconversion of the accessory to being moveable). However the third effect is NOT REVERSED - the original owner of the accessory does not retain ownership.

Question 18

What are constructive fixtures in relation to accession?

Answer 18

Moveable property which are considered to be ‘constructively heritable’, despite not actually acceding to the heritable property. The primary example is keys.

Question 19

Brand’s Trs v Brand’s Trs (1874)

Answer 19

Held there was a unitary law of accession regardless of the facts.

The facts - 19 year lease of land. Tenant started making improvements. Court held that there was a unitary law of accession and the fixtures acceded to the land. However they held that in some circumstances the tenant will have a right to remove the thing which has been acceded.

Question 20

What is the difference between fixtures and fittings?

Answer 20

Fixtures accede, fittings don’t.

Question 21

For accession of moveables to land, what are the criteria to determine if accession has taken place?

Answer 21

1. Physical union between accessory and principal
2. Functional subordination
3. The connection between the two things must be permanent or ‘quasi permanent’

Question 22

For accession of moveables to land - the greater the physical attachment…

Answer 22

the more likely an article is to be a fixture. Articles irrevocably attached are always fixtures.

Question 23

For accession of moveables to land - articles resting on their own weight…

Answer 23

Can be fixtures, provided they are very heavy

Question 24

Christie v Smith’s Exr

Answer 24

Large summer house held to be a fixture despite the fact it wasn’t technically attached.

Question 25

(Accession) What does functional subordination entail?

Answer 25

The 'accessory' must have some function which is subordinate to the principal.

Question 26

Assessor for Fife v Hodgson 1966

Answer 26

The legal issue was whether 'storage heaters' were moveable or heritable by accession. The level of attachment was very slight but the court held that these were part of the overall house with a function of heating the house - they had no independent function. Therefore there was clearly subordination and therefore the heaters had acceded to the house.

Question 27

Cochrane v Stevenson (1891)

Answer 27

Generally speaking a painting will not be a fixture - partly because the level of attachment is so slight, and the fact that paintings have independent value.

Question 28

(Accession) What are the indicators to determine whether the connection between two things is permanent/ quasi permanent or merely temporary

Answer 28

1. Is the physical attachment greater than strictly necessary to secure the article 2. Is there mutual special adaptation (has there been an alteration to one, other, or both in order to fit the things together?) 3. Is the article of a kind which is usually left or usually taken when a building changes occupancy. 4. How long does the article take to install/remove

Question 29

Scottish Discount Co v Blin

Answer 29

Although the annexor's intention is generally not relevant, it was held that in certain circumstances intention might be relevant. In this case somebody had hired on hire purchase enormously heavy equipment which had been attached to the ground. They owned the ground but not the equipment. One of the arguments was that somebody who attaches something which is not his, cannot have the intention of accession taking place - KR thinks that this is irrelevant.

Question 30

(Accession) tenants and other occupiers on a limited title have a right of severance in respect of:

Answer 30

1. Trade fixtures 2. Agricultural fixtures (under Agricultural Holdings (S) Act 1991 s 18 3. Domestic and ornamental fixtures

Question 31

(Accession) where there is a right of severance and you separate the things...

Answer 31

Then ownership is re-invested in that person.

Question 32

For accession between movable to movable, what questions must be asked?

Answer 32

1. Has accession taken place | 2. Who owns the finished product.

Question 33

For accession between movable to movable, how do you determine which part is the principle and which part is the accessory?

Answer 33

1. If one can exist separately then and the other not, the former is the principal 2. Where both can exist separately, that which the other is taken to adorn or complete is the accessory. 3. In the absence of these indicators, bulk prevails, then value.

Question 34

What is land to land accession known as?

Answer 34

Alluvion

Question 35

What is the typical example of alluvion?

Answer 35

Soil washed from one piece of land attaches to another piece of land through the water - the soil acceded to the land it attaches to

Question 36

What is avulsion?

Answer 36

Occurs when part of the land suddenly detaches suddenly and attaches to the land of another proprietor. The land which has attached will remain part of the land of the former owner.

Question 37

How does accession by fruits work?

Answer 37

The principal produces the accessory

Question 38

What are three main examples of accession by fruits?

Answer 38

1. Young animals while still in utero are part of the mother 2. Natural products of the animal or plant kingdom (animals on trees etc) 3. Trees plants and other crops taking root (accede to the land as heritable property)

Question 39

Accession by fruits - exception for industrial growing crops:

Answer 39

Crops which require annual seed and labour DO NOT ACCEDE due to lack of permanency. So if you are a tenant farmer these remain yours even though they are in the ground of someone else.

Question 40

Boskabelle v Laird

Answer 40

Illustrated the fact that industrial growing crops do not accede to the land.

Question 41

Accesion by fruits: who owns plants on a boundary?

Answer 41

Depends on the location of the STEM. If the stem straddles both properties then the plant or tree is common property

Question 42

Accession by fruits - terminates with...

Answer 42

Severance and usually there is no change in ownership.

Question 43

Accession: is the person who has lost property as a result of accession entitled to compensation?

Answer 43

It depends on who did the joining. 1) If the joining is done by the owner of the principal, then the rule is that the owner of the former accessory is entitled to compensation to the extent of its VALUE. 2) If the act of accession is performed by the owner of the accessory then the rule is that no compensation is due. However there is one EXCEPTION - where the owner of the accessory reasonably thought that he had a right to the principal or that he would get one (but it turns out he doesn't/wouldn't.) In this case there is compensation based on U/E (quantum luctratus) = the extent to which the owner is enriched.

Question 44

Shiliday v Smith

Answer 44

A couple got engaged and moved into a house which belonged to the man. The woman spent a lot of her own money doing the house up. The couple separated and she sought compensation for the expenses on doing the house up. It was held she was entitled to a remedy in U/E as a result of accession.