Property Flashcards

Question

If an owner of property dies intestate and without traceable family, what happens to their property?

Answer 1

The ownership to their property transfers to the crown.

Answer 2

If a Juristic person is dissolved still holding it's assets, the ownership to those assets transfer to the crown. ( The Queen and House of lords reprints the Crown) In the case Mackenzie v McLean, damaged cans of McEwans Export and McEavns Pale Ale were dumped in a skip, from which the locals helped themselves. This was prosecuted as theft, this is because abandoned property belongs to the crown.

Answer 3

No, lost property does not equate to abandoned property.

Answer 4

Lost property can be passed onto the crown after 20 years of being out of possession.

Answer 5

The procedure for handling lost and abandoned property is found in 'Part VI ' of the 'Civic Government Scotland Act 1982'. In the case 'Lord Advocate v University of Aberdeen and Budge 1963' students from the university of Aberdeen found some 8th century treasure in Mr Budge's land. The University intended to exhibit them in their university museum. Despite the universities defense that because the treasure was found in Mr Budges land, it should belong to him, the treasure was transferred to the Crown.

Answer 6

Derivative acquisition is when ownership is acquired through voluntary acquisition from the seller to the buyer.

Answer 7

Original acquisition is when ownership is acquired and does not require anyones consent, other than the acquirer.

Answer 8

In order to become an owner of land, one must receive a disposition (which is a deed of transfer from the seller to the buyer) and they must register the disposition in the Land Register; then they will obtain the real right of ownership of land.

Answer 9

In order to become an owner of a corporeal moveable property there needs to be an overt act, such as delivery of the the property after the contractual agreement has been completed and payment has been made. Ownership is transferred not by mere agreement but by an overt act.

Answer 10

The publicity principle is that when contractual agreements are completed for property they must be made public. Acts which can affect third parties should be made public, so that that third parties can know of them.

Answer 11

In the case Wheeldon's Ex v Spence's Ex 2014, Ms Spence signed an agreement which read that Mr Wheeldon assumed full title to the property, however, due to the lack of disposition, there was no real right, the right was simply personal and Ms Spence remained the owner. In the case Johnstone's Trustee's v Baird 2012, a formal agreement stated that 'the home shall be owned by the sole name of the first party for convenience', the parties among them agreed that the property would be owned equal share. However, since the property was in the sole name of one party that meant that he was the sole owner. Their agreement created a personal right however not a real right, their names were not in the Land Register.

Answer 12

A void contract is one which is invalid. A voidable contract is still valid, however, can be avoided and become void. An absolutely good title, is one which is completely valid.

Answer 13

When a contract has been brought about by 'force and fear' that contract will be void. This is because it was forced upon and not consented.

Answer 14

A voidable contract can arise when someone validly acquires property, however in a way which is contrary to the right of someone else. That other person then has the option of avoiding the title. For example, fraudulently inducing someone into a contract creates a valid but voidable contract.

Answer 15

A void title happens either because the granter did not have the right in the first place, so the granter's title itself was void meaning the grantee could not then obtain a valid title. In the case of Land, a transfer may have consent but a failure to register makes the title void.

Answer 16

If the granter with an already voidable title transfers title and the grantee was aware of the voidable title, then the grantee's title will also be voidable.

Answer 17

A creditor can inhibit their debtor that if he dispense any heritable property thereafter, the grantee's title will be voidable, unless she is paid what she is owed.

Answer 18

In this situation, the disposition A hands to B will be absolutely good. This is because a contract can be voidable but not the conveyance.

Answer 19

Reduction is available only if there is a deed of transfer to be reduced, so it is not available in sales of goods. In the case of a Land Register title, the decree must be registered , for the defender loses ownership only when the decree of reduction is registered.

Answer 20

If the grant was gratuitous then the grantee's title would be voidable regardless of whether the granter knew of it or not. The transfer would be voidable under s.6 of the Bankruptcy Scotland Act 2016.

Answer 21

When the seller of goods has a voidable title to them but the title has not been avoided at the time of the sale and the buyer buys them in good faith and without knowledge of the seller's defect the buyer will acquire a good title to the goods.

Answer 22

If the granter'd title is void, the grantee's title is normally also void. For example if the granter steals something then sells it to the buyer, their title will also be void, even if the buyer acted in good faith. The granter cannot transfer a right he does not have.

Answer 23

No, the right was not Sola's, so she could not transfer it. The right to be paid is owed to the Company as shareholders, and not the individuals.

Answer 24

Michel's application will be rejected because although when the deed was delivered to him, the granter, Patricia, was the owner, real rights in land arise not when the deed is delivered but on registration. At that moment Patricia was not the owner, RayeRaye was. Regardless of whether she was in good faith or not they will still have valid ownership (prior temporé potior juré). if she was indeed in bad faith, her title will be valid but voidable. (This is due to the offside goal)

Answer 25

When a grantee acquires a real right, it is subject to the existing real rights of the third parties. It is not subject to the personal rights of the third parties against the granter.

Answer 26

In this case the 'offside goal' would apply and C's title will be voidable at the instance of B. In the case Rodger Ltd v Faudry, the owner of a land concluded missives to sell to Rodger Ltd. When the company failed to pay the price, he then sold to Marjorie Bell. A disposition was granted to her and recorded in the Sasine Register. She was now owner, but the company raised an action of reduction against her. The court agreed and the disposition was reduced.

Answer 27

The offside goal only applies to voluntary grantee's. So it does not apply to creditors doing diligence or to trustee's in sequestration. In the case Burnett's Tr v Grainger, Mrs Burnett was contractually bound to give a good title to mr and Mrs Grainger. She was sequestrated. her trustee knew of the contract, but nevertheless transferred title to his own name. The offside goal could not be pled against him by Mr and Mrs Grainger. The rule also applies only if the first buyer's right was capable of becoming a real right. In the case Wallace v Simmers, William Simmers agreed with his daughter that she would occupy a cottage on his farm indefinitely and rent-free. Later, he conveyed the farm to his son, he knew of the agreement with his sister and was happy with it. Years later he sold the farm to Robert and Douglas Wallace. They asked Margaret Simmers to leave, when she refused they sued to have her removed. She plead that they knew of her right before buying. The court held that even if they did know, they were not bound thereby. Margaret's right was not a lease, it was a personal right and so was outwit the scope of the 'offside goal rule'.

Answer 28

As soon as Z's title passes to X, y's title is validated, without the need for any new deed. This is called Accretion of title.

Answer 29

An unregistered holder is someone who has the power to complete title but who has not yet done so. One must have a disposition in order to be an unregistered holder, without a disposition regardless missives being completed, one would not be regarded as an unregistered holder.

Answer 30

The law allows unregistered holders to dispose their disposition to someone else. This rule can be regarded as an exception to the 'memo plus' principle.

Answer 31

The first stage is the contract of sale. Such a contract has to be in writing, signed by the parties or their agents. It usually takes the form of a missive. Missive is a letter which means an exchange of letters. The first is an offer to buy or less commonly an offer to sell. The reply may be a qualified acceptance' which means a rejection in the eyes of the law with a counter-offer. Once a consensus has been reached the missives are said to be concluded. The buyer does not yet have a real right but a personal right. The net stage is a settlement.

Answer 32

An inhibition is an order from a court that affects an owner's power to grant deeds affecting title to heritage property, in particular dispositions and standard securities. It can be obtained by a creditor who holds decree for payment and also by a pursuer during an action as a protective measure. An inhibitor is discharged if the debtor pays.

Answer 33

The inhibition is registered in the Registration of inhibitions. This, like the Sassine Register and the Land Register is administered by the Keeper.

Answer 34

That deed will not be void, however, will be voidable at the inhibitor's option.

Answer 35

Avoidance is carried out by an action of reduction.

Answer 36

Settlement takes place at the date of entry. The buyer pays the price and the seller gives possession and delivers the disposition. On delivery of the deposition, the buyer does not acquire ownership, but rather the power to become owner, without any further co-operation by the granter, simply by registering the disposition in the Land Register. A person in this position is called an' unregistered holder of land'.

Answer 37

Warrandice means the grantee given by the granter to the grantee that the title is good. A deed (disposition) contains an express 'grant' of warrandice but if the deed is silent, warrandice is implied by the law.

Answer 38

The lowest is 'simple' warrandice. Suppose that Sanaa owns a flat and besotted by love, dispense it to her boyfriend Morris. gratuitously and he promptly registers. Nothing she could do thereafter could prejudice his title.

Answer 39

Sanaa will now become liable to morris for breach of warrandice.

Answer 40

The middle level is 'fact and deed' warrandice. Here, the granter guarantees the grantee's title against any future or past act by the granter.

Answer 41

Although Lianna is indeed the owner, since that security was granted by Lianna, then she is in breach of her warrancide to Erraid.

Answer 42

The highest level is 'absolute' warrandice. An absolute warrandice deed would normally sayI grant warrandice without specifying the type. Absolute warrandice is a guarantee by the granter to the grantee that (i) the grantee will acquire ownership (or other right being granted) and (ii) the title will be unaffected by any encumbrances (notably subordinate real rights).

Answer 43

Title conditions can only be a breach of warrandice if it was known to the grantee and materially lessens the properties value.

Answer 44

The case 'Lothian & border Farers Ltd v McCutcheon' is another exception, however, a controversial one, holding that a lease does not mean breach of warrandice.

Answer 45

The remedy for breach of warrandice in a deed is damages.

Answer 46

The buyer may not be able to register the disposition right away. So the buyer is at risk, for the seller has the money already and is still owner of the property; in the gap period, the seller may become insolvent, this could affect the buyer.

Answer 47

The Land Registration Scotland Act 2012 creates a protective period of 35days. Such notice can be placed in the Land Register in advance of settlement and provided that the disposition is registered within the protected period, it will trump adverse entries made in either the Land Register or the Inhibitions Register. -sharp v thomson

Answer 48

Subordinate real rights in land are incorporeal property and so are transferred by assignation.

Answer 49

A standard security is transferred by registration in the Land Register. Unless the property itself is still in the Sasine Register, in which case the assignment is registered in that register.

Answer 50

Otherwise the 'Common law rules' apply. If you buy a book at a bookshop, the transfer of ownership is governed by the SOGA 1979, but if you then give the book to a friend as a Christmas present, that transfer is governed by common law. If you merely tell your friend that the present is her's that is not enough, no delivery means no transfer.

Answer 51

Existing goods are those that the seller already has. Future goods are those to be manufactured or acquired by the seller after the making of the contract of sale.

Answer 52

Property is transferred to the buyer at such time as the parties intend for them to be transferred, no external act such as delivery needed. The parties are free to agree that ownership passes before delivery, at delivery or after delivery.

Answer 53

s. 18 of the SOGA 1979 provides five default rules. | s. 19 of the SOGA provides a sixth rule for the reservation right of disposal.

Answer 54

If the buyer becomes insolvent s.41 of the SOGA 1979 says that the seller, on losing the real right of ownership, acquires a subordinate real right called the 'seller's lien'. But this lien is lost as and when the goods are delivered.

Answer 55

Sellers who wish to be protected even after delivery can opt for retention of title.

Answer 56

Personal rights are transferred by assignation completed by intimation. Usually personal rights to be paid money can be transferred. Three parties are involved.

Answer 57

Most written contracts for the sale of goods have a clause of retention of title. If the buyer fails to pay the seller can rescind the contract on the ground of material breach and then demand re-delivery of the goods on the basis that the seller is still the owner.

Answer 58

A clause of retention of title can validly say that ownership is not to pass unless all sums owed by the buyer to the seller have been paid.

Answer 59

Where goods are sold by a person who is not their own, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller did. The buyer's title would be void just as the seller's title.

Answer 60

The result will be that Nick will be substituted for Maria as Leonard's creditor. Maria is the 'cement' and nick is called the 'assignee'. The transfer is called assignation.

Answer 61

Normally, a debtor cannot assign the obligation to pay. It would mean that you could borrow money, spend it and then happily assign the debt to someone else.

Answer 62

The first is that the creditor consents, so if X owes money to Y, X's obligation to pay can be transferred to Z if all three parties ao agree. Secondly, The contract itself may expressively or implicitly permit transfer by the debtor.

Answer 63

The contract to assign does not need to be in writing.

Answer 64

The Requirements of Writing Scotland Act 1995 abolished the need for the contract of assignation to be in writing. The Transmission of Moveable property Scotland Act 1862 sets out a simple style of assignation, however it is not compulsory.

Answer 65

The contract to assign does not have to be in writing, the need for the contract of assignation to be in writing was abolished by the 'Requirements of Writing Scotland Act 1995'. Transfer of claim takes place not on delivery of the deed of assignation but on intimation to the debtor. Upon intimation the personal right passes from the cedent's patrimony to the assignee's. The assignee replaces the cedent as creditor of the debtor. All exceptions competent against the cedent before the assignation or intimation are relevant against the assignee. In the case 'Scottish Windows Fund v Busit' Mr Moir took out a life assurance policy, assuring the company that he was in good health and of sober habits. In fact, he suffered from syphilis and alcoholism. He assigned the benefit of the policy to Mr Busit. When Mr Moir died Mr Buist, who had acted in good faith, sought payment of the policy proceeds. The company refused to pay, citing the assignatus utter principle. The defence was upheld. Suppose that Mr moi had not assigned the policy. Then, on his death, the company could have refused to pay his executor.

Answer 66

The assignation utter rule applies to matters as they are at the date of intimation. In 'Hugh Macpherson's JF v Mackay', Hugh was one of the beneficiaries of a large trust set p by his late father, Archie . A beneficial right in a trust is incorporeal moveable property and can, in most cases at least, be assigned. Hugh married Alice. A separate family trust , a marriage trust was established. Hugh assigned his share in Trust 1 to the extent of £1,000 to the trustees of Trust 2. The assignation was intimated to the trustee of Trust 1 and indeed the sole trustee. Over time, trust 1 paid out to Hugh the whole amount allocated to him under the trust. After Hughe's death, the trustees of Trust 2 claimed £1,000 from Trust 1. The trustee's of Trust 1 plead assignatus utitur, arguing that Hugh could not have claimed that money, and so his assignees could not either. This defense failed. At the time when the assignation was intimated, the money was there. However, the assignation utter principle is a shield not a sword.In ' Binstock Miller & Co Ltd v E Coya & Co Ltd', there was a sale of orange juice. The buyer paid part of the price and the sellers then assigned their right to the balance. When the signee sought payment, the buyers refused to pay, saying that the orange juice was disconfirm to contract and had been rejected by them. The buyers not only refused to pay the balance, but sought to claim back rom the assignees the part of the price that they had already paid to the sellers. It was held that, although the buyers were entitled to refuse to pay the balance, they could not recover their money from the assignees. They would have to claim that from the sellers.

Answer 67

In ' Binstock Miller & Co Ltd v E Coya & Co Ltd', there was a sale of orange juice. The buyer paid part of the price and the sellers then assigned their right to the balance. When the signee sought payment, the buyers refused to pay, saying that the orange juice was disconfirm to contract and had been rejected by them. The buyers not only refused to pay the balance, but sought to claim back rom the assignees the part of the price that they had already paid to the sellers. It was held that, although the buyers were entitled to refuse to pay the balance, they could not recover their money from the assignees. They would have to claim that from the sellers.

Answer 68

1. If the debt has been embodied in a fully negotiable instrument, intimation is not required and the assignation utitur rule does not apply. The rules are in the 'Bill of Exchange Act 1882'. 2. Rights under life insurance contracts are assignable, but there exists special legislation. The 'Policies of Assurance Act 1867, s.5'.

Answer 69

The right to be repaid a debt normally lasts If by the time the loan contract says that repayment must take place, the debtor pays nothing and the creditor does not acknowledge the debts existence and does not raise an action, the debt will be extinguished. This is due to negative prescription. The 'Prescription and limitation Scotland Act 1973' in s.6 sets out the cut off period of time for the right to be repaid a debt.

Answer 70

Negative Prescription extinguishes as obligation, limitation does not, but it bars the raising of an action except with the permission of the court. The limitation period is three years.

Answer 71

Subordinate real rights can also be extinguished by Negative Prescription, through non-exercise for 20 years. For example, if there is a servitude, but it is not exercised for 20years, then, at the end of that period, it is extinguished.

Answer 72

No, the real right of ownership is excluded from negative prescription.

Answer 73

No, her ownership remains.

Answer 74

Positive prescription applies to real rights in land. No.

Answer 75

The first is possession for ten years. The second is that the person has an ostensible registered title.

Answer 76

In 2025 the title would cease to be voidable but ownership does not pass. Ownership passed to Hannah from Adam in 2015 when the disposition was registered.

Answer 77

In this situation, prescription could then run in favour of the grantee.

Answer 78

Such a deed is known as a non-domino disposition. This means from a non-owner.

Answer 79

The first condition is that the property must already have been possessed by the granter or grantee for at least one year. The second is that the person who appears to be the owner must be notified, if no one else can be identified, The Queen's and Lord Treasurer's remembrancer must be notified, because the crown takes property that is ownerless.

Answer 80

No, the grantee does not need to be in good faith for prescription to run. The exception to this is forgery.

Answer 81

The disposition is void and she does not acquire ownership. Prescription will run and after years she will become owner. If she knew that the deed was forged, prescription does not run in her favour.

Answer 82

Possession by force does not count and neither does interrupted by a court action.

Answer 83

There is direct possession and indirect possession.

Answer 84

Prescription will run in Polonius' favour and after ten years his title will be good.

Answer 85

This is because the nemo plus principle is misapplied in some types of case involving the Land Register, so that Benedict will probably become owner immediately.

Answer 86

Yes, positive prescription is possible as a means of acquiring certain subordinate real rights, such as servitudes and public rights of way. The period is 20years.

Answer 87

The law makes registration a necessary part of the process of conveyancing — No registration means no real right. While the Land Register and the Sasine Register differ in many respects, both adopt that principle. Registration is compulsory in the sense that those who don't register do not acquire a real right with any effect. This principle only applies to real rights and not to personal rights. For example, Adam owns land and enters into a contract of sale with Eve. She thereby acquires a personal right to require Adam to grant her a disposition, in exchange for payment of the price. The contract creates personal rights only, and thus valid without registration.

Answer 88

Both the Sasine Register and the Land Register are public. If Fergus transfers his house to ingrid, that fact can readily be discovered by anyone and everyone else by payment to the Keeper of a modest fee.

Answer 89

A buyer is under the Land Registration Act 1979, protected against 'omitted encumbrances', such as third party rights that are not disclosed in the title sheet, but this applies only to such encumbrances as should, by specific legislative provision, have been entered in the title sheet.

Property Flashcards

Real Rights and Personal Rights (114 cards)