leases, rights in security

Question 1

what is a lease?

Answer 1

the owner of land grants someone else the right to use and possess a piece of land in exchange for rent

Question 2

4 conditions to be a lease?

Answer 2

1. must be heritable property
2. must have 2 contractual parties
3. there must be a period/duration; law generally infers 1 year if tenant has taken possession
4. must be some form of periodical payment

Question 3

gray v university of edinburgh:

Answer 3

if the tenant has entered into possession (or agreed to) then one year lease will be implied

Question 4

mann v houston:

Answer 4

payments for lease must be periodical and not a lump sum

Question 5

what is a ‘real lease’?

Answer 5

leases are personal rights until made real;

-must register under Leases Act 1449 (short), or Registration of Leases (S) Act 1857 (long) to make it into a real lease

Question 6

implications of a real lease:

Answer 6

1. tenants right to possession protected against singular successors of landlord
2. new landlord will be bound by fundamental terms of lease
3. offside goals rule - tenant can have standard security reduced if the B2 is in bad faith

Question 7

mars pension trs case:

Answer 7

to exclude the application of implied terms, there must be clear contrary provision in the lease

Question 8

main implied terms of a lease: (5)

Answer 8

• possession - tenant must be in possession and use property, landlord must not interfere
• plenishings - landlords hypothec - (tenant)
• rent; tenant obligated to pay rent under lease, including as adjusted by rent clauses
• purposes of let (landlord, reasonably fit for purpose)
• state of property (landlord liable)

Question 9

wright v wightman:

Answer 9

the tenant must plenish property sufficiently to provide security for payment of rent (landlord hypothec)

Question 10

glebe sugar refining co cv paterson:

Answer 10

landlord obliged to ensure property is assumed reasonable by tenant - does not have to be perfect

Question 11

the landlord is not liable for damage caused by an act of god (damnum fatale):

Answer 11

little cumbrae estates v sialnd of little cumbrae (storm)

Question 12

general remedies for parties: (5)

Answer 12

• specific implement - sufficiently clear or precise
• damages (standard)
• action for payment
• rescission - in face of material breach
• retention - suspend performance until action completed (self-help)

Question 13

what is the landlords hypothec?

Answer 13

the rights in security over the goods brought into the property by the tenant, for rent - restricted to commercial leases

Question 14

can the lease by assigned by both landlord and tenant?

Answer 14

yes: by landlord easy - no consent required
by tenant: yes with 2 restrictions:
-alienation clause (expressly restricting transfer)
-delectus personae (if lease is silent about restriction)

Question 15

how can a lease be terminated? (7)

Answer 15

• by end date (notice by one of the parties is required)
• tacit relocation (if no notice given, lease continues by implied re-lease
• recission
• break clause (agreement that either party can terminate early at outset of lease)
• deed of renunciation (made later in the lease)
• frustration
• death of tenant where lease cannot be transferred

Question 16

examples of frustration:

- tay salmon fisheries v speedie

Answer 16

total destruction, partial destriction (house inhabitable), or introduction of new legislation - e.g. Tay Salmon Fisheries Co v Speedie - salmon fishing ade impossible are area designated made a firing range

Question 17

notice by one joint tenant is enough to prevent tacit relocation: case

Answer 17

smith v grayton estates

Question 18

signet group case:

Answer 18

notice needs to be valid and formal, mere action not enough to end lease

Question 19

what does it mean if the loan is secured on the property?

Answer 19

if a occupier does not keep up with repayments to the lender (bank), the bank can sell their home

Question 20

what is the Gloag and Irvine definition of a right in security:

Answer 20

‘any right which a creditor may hold for ensuring payment or satisfaction of his debt, in distinction from and in addition to his right of action and execution against the debtor’

Question 21

how to make a security real?

Answer 21

• publicity principle required to warn third parties hence securities have to be registered in LR or SR
• additional requirements for companies (register at Companies House within 21 days of creation

Question 22

two types of real security:

Answer 22

voluntary (requires consent of owner of property) and involuntary

Question 23

examples of voluntary securities:

Answer 23

pledge (corporeal moveables e.g. pawnbrokers)
floating charge (company property)
standard security (heritable property)

Question 24

examples of involuntary securities:

Answer 24

• tacit securities -those arising by operation of law (lien and landlords hypothec)
• charging orders - securities constituted by public bodies over heritable property of a person who owes them money

Question 25

what is lien?

Answer 25

a real right to retain property (held as security for payment) until the discharge of an obligation e.g. a jeweller holding onto a watch until the repair bill is paid (akin to pledge)

Question 26

what is special lien?

Answer 26

(more specific)
arising in contractual obligations (mutual), and unjustified enrichment
e.g. the seller has lien over particular piece until the amount is due and paid

Question 27

mckichen v muir:

Answer 27

innkeeper case, where family attended ball and refused to pay - therefore keeper retained their clothes

Question 28

which act enables public access rights over private land?

Answer 28

land reform (s) act 2003; also directs us to Scottish Outdoor Access code (guidance, although some sections have been approved by court)

Question 29

2 purposes to be on land as in the Act?

Answer 29

1. recreational purpose (examples given in SOAC para 2.7)

2. relevant educational activity

Question 30

gloag v perth and kinross district council:

Answer 30

• criticised approach in the Code (allowing access rights in less intensively managed parts of owner land)
• well known businesswoman Mrs G obtained declarator that 14.5 acres of her estate were exempt from access rights, for the need to protect her privacy

Question 31

snowie v stirling council:

Answer 31

counters gloag; tried to exclude 70 acres are land round entire house for security purposes - held no; too extensive and not required (allowed 12.6 acres)

Question 32

3 exceptions to access rights:

Answer 32

1. privacy/sufficient adjacent land arguement
2. land subject to payment for access for at least 90 days prior to 31st january 2001
3. land exempted by local authority (or ministers) - have a duty to uphold access rights, and make bylaws

Question 33

differences between servitude and public access right:

Answer 33

1. public only has a burdened property
2. public can be excercised by anyone (not just benefitted proprietor)
3. public must connect two public places
4. public give rights of access only - no other purposes

Question 34

mackintosh v muir:

Answer 34

essential requirement of public access right that there is a fixed route, allowing access from A to B with no wandering

Question 35

how are public access rights created?

Answer 35

expressly in a deed granted by landowner

positive prescription much more common - possession for 20 years

Question 36

requirements for positive prescription of access rights:

Answer 36

1. must be along entire length
2. continuous and uniterupted
3. use must be substantial
4. possession must be adverse and not by tolerance

Question 37

difference between encroachment and trespass:

Answer 37

trespass - transient (temporary) intrusion into land of another by people/animals
encroachment - more than transient (lasts a long time) intrusion by things (building on land)

Question 38

defences to trespass:

Answer 38

1. express or implied consent
2. permitted by law
3. emergency