Week 1-

Question 1

there can be multiple real rights in a thing, idnenity 3 things where only one real right of that particular thing can exist

Answer 1

ownership

a liferent

a lease (because only one lease of the property to the same extent can exist)

Question 2

A just in re aliena

Answer 2

a right in another thing - i.e. (a subordinate real right)

Question 3

in insolvency situation- what is better to enforce, real or personal right?

Answer 3

Real right= as it is enforceable against the world, not just the debtor - this gives extra protection to the person raising the case

Question 4

example of a servitude allowing access over neighbouring land

Answer 4

incorporeal heritable (intangible right which is attached to the land)

Question 5

what is a real right?

Answer 5

a right in a thing

an absolute right

enforceable against the world, not just a particular person

examples, i.e. ownership, servitudes, real burdens, leases of land, (heritable property), rights in security

Question 6

inhibition?

Answer 6

a type of diligence that can be used by a creditor to prevent the debtor from disponing land to anyone else

Question 7

the date of settlement is?

Answer 7

the date on which a disposition is delivered to the purchaser and the purchase price is paid

Question 8

absolute warrandice

Answer 8

implied during a contract of sale

it is a guarantee that the grantee will acquire ownership and a guarantee that there are no onerous or unusual conditions

Question 9

Lothian & Border Farmers Ltd v McCutcheon

Answer 9

not every encumbrance amounts to a breach, and warrandice is breached by only material or unduly onerous undisclosed burdens

facts~ seller transferred land to the buyer with absolute warrandice, but land was subject to lease that hadn’t been disclosed

held- not every encumbrance amounts to a breach, and warrandice is breached by only material or unduly onerous undisclosed burdens

Question 10

when does a breach of warrandice occur?

Answer 10

only when there is an eviction or a material undisclosed encumbrance that significantly affects the buyer’s use of the property

Question 11

if an inhibition against an owner of land and the owner transfers title to that land in breach of the inhibition, what sort of title does the transferee recieve?

Answer 11

voidable -

Question 12

type of warrandice- fact and deed

Answer 12

scope:
guarantee against the granter’s own past and future acts that could prejudice the grantee’s title

when implied - Disposition - (Transfer deed)

i.e. owner transferring land guarantees they won’t later grant competing deeds

Question 13

simple warrandice

Answer 13

very limited- protects only against the granter’s own acts

when implied- gratuitous deeds (e.g. gifts)

example- Donor of land guarantees they won’t themselves disturb the donee’s title

Question 14

land

Answer 14

corporeal heritable property

Question 15

a landowner agrees in a contract that her neighbour can use a path across her land

if the landowner then sells her property, what principle determines whether the new owner must honour this agreement?

Answer 15

the distinction between real rights and personal rights is crucial, a contractual agreement typically creates a personal right,

a contractual right is personal and binds only the original parties, for the right to bind a new owner, it would need to be a real right, like a servitude

Question 16

example of an incorporeal heritable thing

Answer 16

a lease relating to a plot of land

a lease is a right that cannot be physically touched (incorporeal) and it relates to land (heritable) making it incorporeal heritable property

Question 17

the numerous clauses or fixed list in property law is significant because it….

Answer 17

restricts the type of real rights that can be created which provides clarity and certainty for purchasers of property

Question 18

what fundamental change did the Abolition of Feudal Tenure (S) Act 2000 introduce to land ownership in Scotland?

Answer 18

it replaced the hierarchical system of landholding with a system of absolute ownership for landowners

the act dismantled the feudal system, where land was held from a superior and converted these holdings into full, absolute, ownership (dominum plenum)

Question 19

negative real burden

Answer 19

obligation to refrain from doing something on own land for benefit of a neighbour

Question 20

McDonald v McDonald [2016] UKSC 28 - fat daughter mooching off her parents

Answer 20

facts~ private landlord sought possession against a tenant, (their daughter_. after mortgage arrears, the tenant argued that eviction would breach her Art 8 ECHR right to respect for her home

issue~ whether private landlords in possession proceedings must have their actions assessed for proportionality under Art 8

Held~ UKSC held that Art 8 does not apply to possession claims between private parties, domestic courts cannot conduct a proportionality review in such cases

KP= Art 8 proportionality is not a defence to eviction by a private landlord only public authorities are directly bound by it

Question 21

anna owns farm, has a mortgage from bank and leases farm to Colin, how many distinct real rights exist in the farm?

Answer 21

three real rights- anna’s ownership, the bank’s right in security and Colin’s lease

Question 22

difference between proper liferent and an improper liferent created through a trust?

Answer 22

a proper liferent involves two separate real rights (liferent and fee)

whereas an improper liferent, there is only one real right of ownership held by the trust

Question 23

liferent

Answer 23

real right to use and enjoy property for the duration of a person’s life without owning it

Question 24

Ali v Serco Ltd Sc 182 case law and KP - what does it suggest when a private company provides a public service under contract to the government? – Wee man shouting “I’m

going to change the locks”

Answer 24

The company’s actions may not be subject to HRA obligations if it is not deemed to be exercising a public function

Facts~ Serco contracted by the home office provided accom to asylum seekers, when claims were refused, Serco sought to evict by lock-changing without court orders

issue~ was Serco acting as a “hybrid public authority” under the HRA 1998? meaning its actions had to comply with the ECHR art 3 and 8?

held~ the Scottish courts held Serco was not a Hybrid public authority, its actions were contractual, not governmental, therefore changing lock evictions were lawful, and no court order was required

KP= when a private company delivers a public service under gov contract, it does not automatically assume public authority status under the HRA, its actions are judged by private law unless statute imposes public law duties

Question 25

primary function of a right in security, such as a standard security (mortgage) over a property?

Answer 25

to ensure a creditors debt is paid by giving them a real right over an asset which provides priority in case of the debtor's insolvency

Question 26

jus utnendi

Answer 26

the right of using

Question 27

jus freundi

Answer 27

the right of enjoying the fruits

Question 28

jus abutendi

Answer 28

the right of abusing (or disposing of) the property

Question 29

if A and B have a contractual right to use a farm track and then A sells the Farm to C, what is the primary reason B cannot enforce his right of access against C?

Answer 29

B's right is a personal rigth enforceable only against Angela a contractual right is a personal obligation between the parties, and does not attatch itself to the land itself, making it unenforceable

Question 30

ways securities are paid out when paid back

Answer 30

real rights (securities) grant priority in insolvency over personal rights (unsecured loans), regardless of when the personal right was created

Question 31

the concept of ownership being a 'unitary concept' contrasts with it being a 'bundle of rights', what does the term 'unitary concept' imply?

Answer 31

ownership is a single, complete right from which subordinate real rights like a servitude can be broken off and granted to others unitary view- ownership as a whole, and subordinate rights are temporary burdens or limitations carved out of that whole

Question 32

how does the legal effect of a lease differ from that of a license?

Answer 32

lease= real right of exclusive possession for a fixed time, whilst license= personal permission that does not bind future owners

Question 33

Karl Construction Ltd v Palisade Properties

Answer 33

KP= Art 1 ECHR 1- the right to peaceful enjoyment of possession Facts~ K sought to payment for building works using a mechanism called inhibition on the dependence to freeze the defender's assets, issue~ court considered whether freezing someone asset's automatically through inhibition was unlawful. especially under Art 1 protocal 1 of the ECHR " exclusive enjoyment of possession" held~ inhibition should not be granted automatically, instead courts must assess if there is prima facie case and justification for freezing the assets

Question 34

patrimony

Answer 34

property law is a component of a person's patrimony, concerning the real rights (assets) they hold this is the totality of a person's economic rights and obligations

Question 35

essential components of a lease

Answer 35

parties rent property duration

Question 36

defining characteristic of a subordinate real right (jus in re aliena)

Answer 36

real right held by a person in a thing owned by someone else

Question 37

South Lanarkshire Council v McKenna facts and KP - Thats not very good (south lanarkshire accent)

Answer 37

KP= determined eviction lawful and proportionate measure to achieve a legit public interest aim facts~ SLC sought to evict tenants due to persistent antisocial behaviour affecting neighbours and the community issue~ did the eviction breach the tenants right to respect for private and family life under Art 8? Held~ eviction was lawful and proportionate, the crucial factor was the serious and sustained anti-social behaviour which justified interference with Art 8 rights in order to protect the rights of others

Question 38

how is Scotland's property law typically described within tis mixed legal system?

Answer 38

it is a mixed system where property law shows strong influences from civil law traditions

Question 39

advantage for a creditor holding a real right of security- i.e. mortgage over the debtor's property?

Answer 39

they have the priority to be paid form the proceeds of specific secured asset over unsecured creditors

Question 40

what key feature distinguishes a proper liferent from a lease of land?

Answer 40

a liferent allows the use of property for the beneficiary's lifetime, whereas a lease is for a fixed term

Question 41

what is patrimony?

Answer 41

the totality of a persons economic rights and obligations, including assets and liabilities

Question 42

under the numerous clause principle, which of the following is classified as the principle real right?

Answer 42

ownership - is the main real right from which other subordinate rights can be created

Question 43

what is the publicity principle in Property law? - and why is it important for purchasers?

Answer 43

it is the principle that real rights must be made public, typically through a register, to be effective against third parties allows a purchaser to check the 'title' and discover any real rights affecting the land

Question 44

Karl Construction Ltd v Paliside Plc 2002- Karl baby, ECHR 1 -possession enjoyment

Answer 44

the granting of inhibition on the dependence to freeze a defender's assets

Question 45

example of a subordinate real right "jus in re aliena"

Answer 45

A bank holding a standard security (mortgage) over someone else's houes

Question 46

what is an affirmative real burden?

Answer 46

also a positive real burden an obligation to do something, such as maintaining a shared wall or fence