Week 10

Question 1

4 essentials of a lease

Answer 1

parties

property

rent

duration

Question 2

compare a lease and a license

Answer 2

lease= grants exclusive possession of property for a fixed period of time. Creates a proprietary interest (in estate in land)

they are generally transferrable

whereas…

licence= grants permission to occupy or use property without exclusive possession, creates only a personal right

limited protection; revocable, unless contractually restricted

Question 3

according to Duke of Buccleuch v Magistrates of Edinburgh, what is the legal status of a structure such as a portico, build projecting beyond a property’s feu boundary line?

Answer 3

the structure constitutes an encroachment as the owner does not possess real rights over the ground beyond the original boundary

the court’s decision was that the trustees did not own the projected area, as their rights were limited by the feu boundary, making the projection an encroachment

Question 4

what is the legal distinction between conventional separate tenement, and a legal separate tenement? in Scots Property law?

Answer 4

conventional tenements are created by conveyance,

whilst

the legal tenements are part of the regalia minora, and are granted by the Crown

Question 5

legal separate tenements- all part of the regalia Minora

Answer 5

granted by the crown or remaining with the crown except for coal, which is vested in the coal authority

right to fish for salmon

right to gather mussels and oysters

gold and silver mines

right to extract petroleum and natural gas

coal

surface proprietor will be compensated for withdrawal of support by Coal Mining Coal industry Act 1994

Question 6

boundary and fence walls - type 1

Answer 6

entirely on one side of boundary

Question 7

boundary and fence- type 2

Answer 7

straddles on the boundary

construction of type 2 requires consent of both land owners or its encroachment

Question 8

boundary and fence boundaries in either case

Answer 8

ownership of the wall goes with ownership of the land

construction of type 2 requires consent of both land owners or its encroachment

common interests in maintenance of type 2 (interest extends to the whole wall)

Hedges over 2m tall which obtstruct light:

Question 9

encroachment

Answer 9

this is an interference with the owner’s right of exclusive possession, generally building beyond the extent of the boundary

Question 10

Duke of Buccleuch v Magistrates of Edinburgh (1865) 3 M 528

• encroachment case

Edinburgh

Buccleuch= Bobbi Brown on George Street

Answer 10

facts~ trustees of the assembly rooms built a portico projecting beyond their fue line on George Street

issue~ did they have real rights over the ground beyond the feu line?

held~ no- the court held that the trustee’s didn’t’ own the projected area, the feu plan and charter didn’t grant rights beyond the original boundary

prospective building can be interdicted

existing building can be made subject to a removal order

Question 11

aemulatio vicini

Answer 11

abuse of right

lawful but malicious use of land to spite neighbour

“under-developed and marginalised” - Gloag and Henderson

pursuer must show malice, defence that the operation carried out for own convenience

Question 12

Access for Repairs: TC(S)A 2004- s 17

Answer 12

Hume- suggests that slight and temporary inconvenience e.g. ladders or scaffolding may arise out of necessity

Soulsby v Jones

Question 13

nuisance

Answer 13

physical damage or interference with enjoyment and use of land

which is plus quam tolerabile (more than reasonably tolerable) in circumstances tested objectively

fault (culpa) must be proven

RHM Bakeries v Strathclude Regional Council 1985 SC(HL) 17

case law=
Bakeries sued the council after floodign damaged their bakery, alleging negligence in maintaining a sewar

issue-whether the council owed a duty of care and whether the flooding was caused by their failure

held~ the court found no liability, the damage was due to exceptional rainfall, not negligence, the council was not held responsible

Question 14

house owned by Mr Banks, back garden is surrounded by a river,

the other side bought by Miss Smith,

Mr Banks has friends over who fish in the river for trout, the cottage has traditional stone walls separating the garden from the neighbours, one of the boundary walls is in state of repaid,

the Banks’s would like the wall to be repaired, then would like the trellises to grow climbing roses

Questions:
what would your advice be if Miss Smith would want to fish (might your answer be different if she wanted to fish for salmon?)

2. Assuming the title deeds are silent, what would your advice be regarding the repaid to the boundary wall?

Answer 14

1- Miss Fish may fish for trout, as it is a public right in non-tidal rivers unless expressly prohibited)

therefore Miss S may fish for trout unless Mr Banks can prove this exclusive rights
if this were salmon however, Miss S would require permission as this is part of the regalia minora

2. if the trellis does not encroach or cause damage to the wall, its likely permissible however, if it alters the wall’s character or burdens the neighbour’s property. consent may be needed

Question 15

what expanded the community right to buy, previously applicable only to rural land, to cover urban areas as well?

Answer 15

the community Empowerment (S) Act 2015

Question 16

what legal principle regarding the essentials of a lease was established in Mann v Houston?

Answer 16

Rent must be a periodical payment for a valid lease to exist- a one off premium is insufficient

Question 17

Mann v Houston

Answer 17

Facts~ concerned the nature of rent in a lease agreement, in this case 10 years in exchange for one off premium at the start of the tenancy

held~ there was no lease and the third party were not bound to honour it as it was a contractual arrangement only

Question 18

Gray v University of Edinburgh

Answer 18

facts~ dispute over contract where all terms agreed except duration

held~ the court found a valid contract, agreement on essential terms was sufficient even without duration- the court found that there was a lease for a year, and after that the lease would continue otherwise they could re-negotiate or end it

Question 19

Gyle Shopping Centre

Answer 19

M&S were anchor tenants (bring customers in) confirmed that exclusive lease could effectively include a shared right over a neighbouring properties (pro-indivisio shares)

issue~ dispute over land lord to re-develop a car park to allow Primark to move in

Held~ their right was part of a real right of lease, and therefore M&S did not have to burry their lease, the lease gave them shared possession, not just for access, meaning that they had stronger rights to use those area, and the landlord had to respect that

Question 20

Shetland Islands Council v BP Petroleum Developments - Shetland- have to imply what she is saying cause you cant understand her

Answer 20

agreement on essentials other than rent

held~ the court implied a market rent

Question 21

how does the legal remedy of irritancy differ from rescission in the context of a lease?

Answer 21

irritancy allows for automatic termination of the lease due to a specified breach, while rescission relieves both parties of future obligations following a material breach

Question 22

assignation

Answer 22

transferring an entire interest and obligation to a new tenant

Question 23

pre-emption right

Answer 23

gives the person holding it the opportunity to buy land should the owner decide to sell ti

–>The Land Owner has to offer it for sale to the community body before a third party, if they say no, their pre-emption right comes to an end and they can sell to the third party

Question 24

the case of Ben Cleuch Estates Ltd v Scottish Enterprise, highlights a critical requirement when exercising a break clause in a lease what is this?

Answer 24

strict compliance with the formalities of the break clause, including correctly naming the legal entity or serving and receiving notice, is requireed

Question 25

Ben Cleuch Estates Ltd v Scottish Enterprise

Answer 25

facts~ SE tried to exercise a break clause in commerical lease, the notice was served to the wrong company (parent company not the actual LL (Ben Cleuch) even though the LL's director's received it issue~ was the break clause notice valid even enough though it was not formally addressed to the correct legal entity> - given the LL's director was aware of it? Held~ court held the break was invalid, strict compliance with the break clause and it's formalities were required awareness by the landlord's or its director did not cure the defect

Question 26

what distinguishes the crofting community's right to buy under part 3 of the LR(S)A 2003 from the 'community right to buy' (pre-emption) under part 2?

Answer 26

part 3 right can be exercised at any time, potentially forcing a sale, whereas part 2 of the community right to buy only activates when the owner decides to sell

Question 27

in Halkerson v Wedderburn, the court

Answer 27

facts~ branches hanging from trees hung over H's garden, allegedly damaging fruit and overshadowing the space held~ the defender must prune the trees, to prevent prejudice, overshadowing and physical intrusion by branches constituted encroachment, and the pursuer had a right to protect their property

Question 28

boundary wall straddles the line between two properties (type 2) one owner wishes to make substantial repairs to the entire wall what is the legal position regarding this action?

Answer 28

both landowners have a common interest in the maintenance of the whole wall, and consent would be required for significant works

Question 29

the Register of Overseas Entities (ROE) was established by the Economic Crime (Transparency and Enforcement) Act 2022, what is the primary function in relation to UK Land?

Answer 29

to require non-UK Companies that want to transact with the UK to register and disclose their beneficial owners enhancing transparency by making overseas entities register with Companies House, and disclose who ultimately owns or controls them

Question 30

which case demonstrates that the label parties give to an agreement e.g. license is not decisive, and the substance particularly the grant of exclusive possession, determines if it is a lease?

Answer 30

Joint Administrators of Rangers Football Club agreements labelled as licenses for the use of the stadium, were held to be leases, because they granted exclusive possession, showing substance over from

Question 31

which is an example of a legal separate tenement in Scots Law?

Question 32

tacit relocation

Answer 32

implied renewal of the lease (usually for one year)

Question 33

break clause

Answer 33

allows either the landlord or the tenant to bring the lease to an end early

Question 34

section 86 LR(S)A 2012

Answer 34

ensures that positive prescription (the rule that ownership can be acquired after 10 years open, peaceable possession , found on a registered deed) applies to titles registered with the 2012 Act this section allows positive prescription to operate on registered titles under the 2012 Act, ensuring that 10 years of possession based on a registered deed ownership becomes unchallengeable

Question 35

i own a house in Dundee, enter agreement with you that says "From today, you are the legal owner of a one half share in my Dundee House, title being held in my sole name for convenience only" what is the effect of this agreement in Scots Law?

Answer 35

I remain the sole owner of of the Dundee House

Question 36

what is true about Scots Property Law?

Answer 36

property law is about the real rights that persons have in things

Question 37

a lien is an example of what type of security right?

Answer 37

an involuntary and real security: a lien is a type of security where a person has the right to retain possession of someone else's property until a debt or obligation has been paid or is satisfied it is: involuntary: A lien typically arises without the consent of the owner of the property, (i.e. its not a voluntary agreement between parties) real security: It relates to a real right over a specific piece of property (real right) rather than a personal right

Question 38

which one of the following situations would result in joint rather than common property (as these terms are understood by Magistrates of Banff v Ruthin Castle Ltd)

Answer 38

Andy Beth, and Callum start a basketball club together and they purchase balls and bibs, for the club, using the money that they have put into the club as membership fees

Question 39

joint property

Answer 39

the co-owners hold the property together as a single unit, without individual divisible shares, ownership is collective and undivided

Question 40

common property

Answer 40

each co-owner has a distinct share (often equal, unless otherwise agreed), even though the property itself is indivisible in practice

Question 41

Magistrates of Banff v Ruthin Castle

Answer 41

facts~ mansion house and adjoining park were gifted to two neighbouring burghs, "jointly and to their joint assignees" intended for the benefit of their communities issue~ whether the proeprty formed part of each burgh's common good (i.e. divisible shares) or whether it was held jointly as a single undivided unit held~ that is was joint property, owned collectively, by both burghs together, not as separate divisible shares KP= joint property arises when co-owners hold property together as one whole, without severable shares common property= involves divisible shares, even if the property itself cannot be physically divided the case clarified that wording such as "jointly and to their joint assignees" creates joint ownership, not common ownership

Question 42

which of the following statements is an accurate statement about real rights in Scottish property law?

Answer 42

only a certain number of real rights are recognised by Scots Law, this sit he concept of the numerous clauses or closed list only a fixed list of real rights is recognised, you cannot invent new ones real rights include: ownership servitude securities leases burdens

Question 43

section 3 TC(S)A 2003?

Answer 43

it regulates real burdens, but within a closed list

Question 44

what is the legal position when the originally agreed duration (or term) of a lease of office premises comes to an end?

Answer 44

the lease will only come to an end if the correct period of notice has been given (by either the landlord or the tenant) to prevent the lease from being impliedly renewed for leases of a year or more, the lease will be impliedly renewed for one year

Question 45

what is the right to roam?

Answer 45

allow the public to cross land, use it for recreation, and enjoy the countryside responsibly, subject to certain exclusions (e.g. private gardens, land under crops

Question 46

public right of way

Answer 46

separate common law concept: they allow passage from one public place to another across private land, but are much narrower than the statutory access rights

Question 47

part 1 of the LR(S)A 2003

Answer 47

the right to roam is established here

Question 48

a standard security is an example of what type of security right?

Answer 48

a voluntary and real security

Question 49

how is a public right of way established?

Answer 49

two public places= the route must connect one public place to another (e.g a road to a village) continuous use by the public = the public must use the route openly and peaceably, and "as of right" (not by permission) for at least 20 years definite route= the path must be reasonably identifiable and capable of being followed public character= use must be by the public generally, not just by a limited group of individuals

Question 50

what is an example of a separate tenement in Scots Law?

Answer 50

separate tenement is a natural part of land that Scots Law recognises as capable of being owned separately from the land itself classic examples= minerals, (like coal), salmon fishing rights and certain other incorporeal rights

Question 51

what is the difference between a servitude and a public right of way?

Answer 51

a servitude is the right to make limited use of a neighbour's land, in your capacity as a landowner of the benefited property a public right of way is a right of access over land to allow travel from one public place to another

Question 52

example of a statutory right from operation of law

Answer 52

Lien arises by operation of law- i.e. a tradesperson who has repaired goods may retain them until paid, it is not created by an agreement but automatically recognised by law in certain circumstances

Question 53

what is a statutory pledge?

Answer 53

type of real security introduced by the Moveable Transactions (S) Act 2023, it allows a borrower to grant security over assets without handing them over physically, by registering the pledge in a public register

Question 54

Mann v Houston, what is the court's conclusioin regarding the existence of a lease?

Answer 54

The arrangement was deemed a contractual license, not a lease, because the payment was not periodical the judgement established that the rent must be a periodical payment for a lease to exist= a single premium creates only a personal, contractual right

Question 55

what is a crucial factor that distinguishes a lease from a license?

Answer 55

the granting of exclusive possession of the property

Question 56

landlord sells a shopping centre subject to existing leases, one lease contains an exclusivity clause preventing another jeweller from trading, based on the conflicting case law. which statement best describes why this might not bind the new landlord?

Answer 56

the clause could be viewed as a collateral commercial bargain, not a natural condition of the lease

Question 57

tacit relocation

Answer 57

the automatic renewal of a lease on the same terms when neither party serves proper notice to terminate before the ish

Question 58

coco wants to sublease to Jas, what is her ongoing legal position in respect to her landlord Jessie?

Answer 58

Coco becomes Jas's landlord and remains liable to Jessie for the original lease terms

Question 59

what is the difference between legal irritancy and conventional irritancy as remedies for a landlord?

Answer 59

legal = remedy implied by statute or common law whereas conventional irritancy= written into the lease agreement

Question 60

Shetland Islands Council v BP Petroleum Dev= a lease was found to exist, despite the parties not having an agreed on the rent, how did the court resolve this?

Answer 60

the court implied a term that a reasonable or market rent should be paid where parties have agreed on all other essentials and intend to be bound, the court can imply a market rent to prevent the contract from failing

Question 61

what is the legal status of an exclusivity clause in a lease according to the ruling in Optical Express (Gyle) Ltd v Marks and Spencer Plc?

Answer 61

it was held to be inter naturalia of the lease because it related to the tenant's use and enjoyment of the premises the court decided that the clause was so integral to the tenant's ability to operate profitably in that specific location that it ran with the land, and bound the new land lord

Question 62

tenant wishes to make a claim for abatement of rent, under which of the following circumstances would this right most likely arise?

Answer 62

the landlord has failed to maintain the property in a tenantable condition, making it partially unusable

Question 63

abatement

Answer 63

the right to abatement is the tenant's self-help remedy when the landlord fails their obligation to provide the property in the agreed condition

Question 64

Gyle Shopping Centre v Marks and Spencers- what key right of the tenant did the court uphold?

Answer 64

a real right of shared possession over common parts, preventing the landlord's redevelopment

Question 65

Anderson v Brattisani

Answer 65

attaching a permanent or quasi-permanent object to a neighbour's property constitutes encroachment

Question 66

what happens if a tenant in a commercial lease vacates the premises before the ish but fails to serve a valid and timeous termination notice?

Answer 66

the lease is renewed by tacit relocation, and the tenant remains liable for rent as established in Rockford Trilogy Ltd v NCR Ltd, failure to give valid notice triggers an implied re-lease, continuing the tenant's obligations

Question 67

if lease is silent on the matter, what is the landlord's implied obligation regarding the condition of an urban property?

Answer 67

to ensure the property is wind and water tight

Question 68

a residential tenancy agreement is informal and lacks certainty on rent and duration, based on Sheriff v O'Rourke, what is the likely legal status of the occupier's arrangement?

Answer 68

a license, granting only a personal right to occupy which can be terminated by the owner the court in this case held that the lack of the essential requirements for a lease meant the arrangement was only a license, conferring no real right or security of tenure

Question 69

what is the primary purpose of the Register of Persons Holding a Controlled Interest in Land (RCI)?

Answer 69

to disclose who has a significant influence or control over land, even if they are not registered owner RCI's goal of transparency by revealing the ultimate decision makers or beneficiaries behind trusts or companies that own land

Question 70

what is the difference between encroachment and trespass in Scots Property Law?

Answer 70

encroachment is a permanent or quasi-interference, whereas trespass is temporary

Question 71

a coelo usque ad centrum- what does ownership of land in Scotland Vertically include?

Answer 71

everything from the heavens above down to the centre of the earth, subject to exceptions

Question 72

which of the following is classified as a 'legal' separate tenement, part of the Regalia Minora?

Answer 72

the right to fish for salmon in a river the right to fish for salmon is one classic example of a legal separate tenement that originally belonged to the Crown

Question 73

if the boundary wall straddles the line between two properties (type 2) what is the legal position regarding its construction and maintenance?

Answer 73

ownership of the wall follows ownership of the land it stands on, and there is a common interest in tis maintenance

Question 74

Halkerson v Wedderburn established a remedy for what type of encroachment?

Answer 74

overhanging tree branches causing overshadowing and physical intrusion

Question 75

if conveyance of land is silent about a conventional separate tenement, e.g. minerals, what is the effect on the purchaser?

Answer 75

the purchaser does not acquire ownership of the separate tenement, because the tenement is a separate parcel of property, its ownership is not transferred unless it is explicitly included in the conveyance

Question 76

what is a pertinent in the context of land ownership?

Answer 76

a right that is exerciseable beyond the boundaries of the principal property covering additional rights (corporeal or incorporeal) that benefit the primary property

Question 77

pertinents

Answer 77

something that is accessory, and included with, the principal property it is not the main subject of ownership, but it is attached to and passes with it when the property is transferred examples include: rights of access outbuildings (e.g. a garage or shed) servitudes (rights over neighbouring land) fixtures

Question 78

According to *Duke of Buccleuch v Magistrates of Edinburgh*, what was the legal status of the portico built beyond the trustees' feu boundary?

Answer 78

anything built beyond the fue boundary does not vest in the builder but remains on the landowner's property and the landowner can demand its removal the portico did not become part of the trustee's property and it was treated as an encroachment on the Duke's Land, which the Duke was entitled to have removed

Question 79

example of a corporeal pertinent

Answer 79

a share in a commonly owned garden or drying green this involves a right to a physical piece of land, making it a corporeal pertinent

Question 80

with respect to coal as a separate tenement, what right does the surface proprietor have under the Coal Industry Act 1994?

Answer 80

the right to be compensated for damage caused by the withdrawal of support this Act specifically provides compensation mechanism for subsidence or other damage resulting from coal mining operations

Question 81

what is the difference between conventional separate tenement, and a legal separate tenement?

Answer 81

conventional tenements are created by deed between parties, while legal tenements originate from the crown conventional tenements are created by landowners, e.g. selling flats whereas legal tenements are part of the regalia minora

Question 82

if a prospective building will certainly encroach upon your land, what is the most legal remedy to seek?

Answer 82

an interdict to prohibit the construction from taking place an interdict is a court order that prevents a party from carrying out a specific wrongful act, making it the correct prospective remedy

Question 83

the High Hedges (S) A 2013 is relevant in neighbour disputes when a hedge over 2 meters tall has what specific effect?

Answer 83

it obstructs light to a neighbouring property

Question 84

what is presumed to be the boundary in non-tidal river separating two properties according to the source material?

Answer 84

the boundary is the 'medium filum' or the mid point of the riverbed this is the established common law presumption, meaning that each owner is presumed to own the riverbed (alveus) up to the centre line