Head 22: 3 and 23: 1 Flashcards
(19 cards)
What are the main restraints on use?
1) By neighbour law (head 23)
2) By statute
3) By “special regimes”
4) By agreement
Examples of restraints on use by statute?
Control of Pollution Act 1974
⁃ Preventing pollution of the land of others.
Town and Country Planning (Scotland) Act 1997
⁃ You generally need planning permission to erect buildings.
Examples of restraints on use by special regimes?
A special package of mutual rights and obligations through the mechanism of statute or common interest (usually arise where people are living in close proximity). Main examples are:
⁃ flatted buildings
⁃ mutual walls and fences
⁃ rivers and lochs
Examples of restrains on use by agreement?
⁃ real rights (e.g. lease where the landlord loses the right to use the property for the period of the lease.)
⁃ personal rights (e.g. you could agree that someone can park their car on your driveway for as long as you don’t say otherwise)
Who owns trees?
Trees are owned by the person on whose land the stem is located.
Two situations where there is a wall?
1) wall built wholly on one side of the boundary or
(2) wall straddles boundary.
If you wish to erect a new wall then you must…
Pay for it yourself and erect it on your side, unless consent of the neighbour is obtianed.
March Dykes Acts 1661 and 1669
Applies to rural subjects of 5 acres or more and here you can apply to the court to have your neighbour pay half the cost of the boundary structure. The court has a discretion as to whether to make an award.
Corrie v Craig 2013
One party wanted his neighbour to pay half the cost of erecting a dry-stane dyke (a wall built up of stones.) However the other party had actually erected a stock proof fence on the boundary (so there was already a fence in place). The Sheriff held that this was good enough and it was not reasonable to expect the neighbour to pay half the cost of a more fancy boundary structure.
Where a wall straddles two people’s land, who owns it?
The part of the wall on each side is owned by the owner of the land.
Where a wall straddles two people’s land, what rights does the other party have?
There is a common interest in the part which you do not own.
What is common interest?
A reciprocal obligation by which A must support B’s part of the wall and B must support A’s part of the wall, implied by law, much like an implied community burden
In walls on one person’s land, who has to maintain them?
Only the person who owns that land.
In walls straddling two person’s land, who has to maintain them?
There is a common interest obligation (NB positive obligation) of support (e.g. they both must contribute to maintenance)
What happens if a common interest obligation is not complied with?
If common interest obligation not complied with, the other owner can carry out the work and recover cost. See Newton v Godfrey (2000)
In walls on one person’s land, who can alter them?
Only the owner of the land can alter them.
In walls straddling two person’s land, who can alter them?
Alterations to your part must not endanger support (common interest restriction).
Thom v Hetherington 1988
Involved two neighbours between whom there was a brick wall. It was a type 2 wall (straddled the boundary). The neighbours didn’t get on. The roots of the first neighbours cherry tree had spread under the wall to the second neighbour. The second neighbour poisoned the tree. The second neighbour then became worried about the first neighbours dog (which he described as uncontrolled and neurotic and thought it might jump from a coal bunker and attack his wife.) So the second neighbour threw some coal at the dog. The first neighbour then built a 6 foot fence on her side of the wall when the other neighbour was out. The other neighbour went to court and argued that the fence weakened the wall because: 1) parts of the foundation had been moved so that the fence post could be inserted, 2) the posts were bonded to the brickwork which arguably put the wall under strain.
The court found against him on - it was held to be a matter of degree. Lord Jauncey stated:
“The presence of the fence up against the wall would only have been actionable if such pressure impaired the strength or interfered with the stability of the wall .. Such impairment or interference must in my view be measurable and not merely negligible. It is beyond dispute that the owner of one side of a garden wall would be entitled to insert nails or rose ties into the mortar for the purpose of training roses up it. Theoretically every intrusion into the mortar must weaken the bond which it creates between the bricks, but it is equally clear that the court would not restrain the owner from so acting.”
Who owns common gables? (walls between two builidings)
Same rules as for walls - the rule is that you own to the midpoint of the common gable (ad medium filum).
