Head 15: Co-ownership Flashcards
(33 cards)
Property owned by more than one person is known as…
Common property.
Each co-owner of common property has…
A pro indiviso share.
Can shared in common property be uneven?
Yes.
Is there a limit to the number of co-owners?
No.
What is the normal rule for alterations and repairs?
That the consent of all is required.
What is the exception to the rule for alterations and repairs?
For “necessary repairs” any one owner can carry out the repairs and recover pro-rate costs from all the other owners.
For tenements where are the rules on repairs found?
Tenements (S) Act 2004.
In relation to use of property, what can co-owners agree to?
They can agree whatever they want concerning use, in the form of personal rights.
In relation to use of property, how many co-owners are needed for a valid agreement in relation to use?
A majority is probably enough (but this is uncertain)
In the absence of agreement, what are each co-owner’s rights in use?
They are allowed to use the entire property
In the absence of agreement, what does the right of use encompass?
Only “ordinary uses” are permitted.
Carmichael v Simpson
Held that the ordinary use of an entrance passageway was for entrance and exit and not for storing large obstructive objects.
Black v Duncan
Held that building a dog-run in the back garden of common property was not an ‘ordinary’ use of the garden.
How much use if each co-owner allowed?
Use has to take into account that there are other co-owners, so you cannot use the property excessively in a way that makes it difficult for other co-owners to exercise their rights.
If the shares are uneven, what rights of use do people have?
The person with the bigger share is entitled to proportionately greater use.
Bailey’s Exrs v Upper Crathes fishing ltd
Co-owned right to fish salmon from a river. Parties agreed to fish on alternate weeks for the coming season. One party sold a right to fish the river on alternating weeks indefinitely. Held that this was invalid because they had tried to communicate a greater right than they own.
What if one party takes exclusive possession?
It is thought that the correct remedy is interdict (rather than ejection)
If the land has produced a profit you can recover a proportionate share.
In addition, there may be a remedy in U/E for ‘notional rent’
Price v Watson
One party took exclusive possession of common property - the other co-owner raised an action of ejection against the other co-owner. The court held that ejection was not the appropriate remedy because you can only use ejection where the defender has no right to occupy the property at all.
Juridical acts affecting the whole property require…
the participation of all co-owners.
Grant v Heriot’s Trust (1906)
One co-owner purported to grant a servitude over a property. This was held not to be competent because the participation of all co-owners was necessary.
Clydesdale Bank Plc v Davidson
A farm was owned by various people who contracted that one would have the right to use the farm who would pay rent to all the others. The question was whether this was a lease? This is important because if it is a real right it will bind successive owners. HL held that it cannot count as a lease because one person cannot have both a real right of ownership and a real right of lease.
A co-owner can transfer or burden his own share where…
This can be done without affecting the shares of others.
Menzies v Macdonald
Loch Rannoch was owned in common by two people. One of the co-owners decided to divide his half up and sell it to lots of different people. The other co-owner objected for the reason that instead of sharing ownership with one person he now shared it with a large number of other people, each of whom had a right to use the loch. HL held that there was no limit to the number of shares you could divide it into
Two ways of getting out of co-ownership:
- Each co-owner is entitled to transfer his own share
2. Each co-owner is entitled to physical division, or if impossible, ‘division and sale’
