Head 22: 1

Question 1

Ownership is coelo usque ad centrum means…

Answer 1

From the heaven to the centre of the earth (nb this isn’t really true in relation to separate tenements.

Question 2

What is a pertinent?

Answer 2

A pertinent is subsidiary heritable property beyond the boundaries of your property that you get when you own a piece of property (it is nonetheless part of your property).

Question 3

How does something become a pertinent?

Answer 3

Either the title deeds can say or it can occur by prescription (i.e. if there isn’t a clear express grant you can establish ownership of the pertinent by use - not very easy because you can’t prescribe beyond a boundary description so if it clear that the area of land falls outwith the boundary description then positive prescription is not possible).

Question 4

Three types of pertinent?

Answer 4

1) Additional piece of land
2) Rights of common property
3) Title conditions (e.g. right to enforce a servitude)

Question 5

Pertinents which are additional pieces of land must…

Answer 5

Be used in association with the principal land. In practice this required to be fortified by positive prescription where not the subject of a clear express grant.

Question 6

What are examples of pertinents which are rights of common property?

Answer 6

This is in particular a feature of tenemental property - in tenements you own the flat and also have rights in common property (e.g. the close). These rights of common property attach to the flat as pertinents.

Question 7

How are pertinents which are rights of common property created?

Answer 7

Either by express grant in original break-off conveyance or by Tenements (Scotland) Act 2004 s 3.

Question 8

What are separate tenements?

Answer 8

These are heritable property owned separately from the solum (soil)

Question 9

What are the two types of separate tenements?

Answer 9

Conventional separate tenements and legal separate tenements.

Question 10

What are conventional separate tenements?

Answer 10

Things which would not normally be separate but the parties have actively made separate tenements.

Question 11

What are legal separate tenements?

Answer 11

These are created by operation of law (they are implied).

Question 12

How are conventional separate tenements created?

Answer 12

Created in a disposition (or feu disposition before Nov 2004) either by grant or by reservation.

Question 13

Limitations on conventional separate tenements:

1) below ground
2) above ground

Answer 13

1) Below ground - available without restriction (e.g. minerals) - this means the owner of the tenement also gets the space the minerals occupied after mining takes place.
2) Above ground - generally not allowed (so you can’t own trees separately) [but one exception - if you own a flat you own the airspace]

Question 14

Crichton v Turnbull 1946

Answer 14

Held that pipes lying on the ground can’t be owned separately from the ownership of the ground.

Question 15

Compugraphics International Ltd v Nikolic 2011

Answer 15

Overhanging cable blocks couldn’t be held separately from the ownership of the land.

Question 16

Conventional separate tenements must be…

Answer 16

Corporeal

But exception for the 65 cases of sporting rights converted from feudal reservations by a notice registered under s 65A of the 2000 Act. [NO IDEA]