Property Law Y2S1 Week 1: L1 Intro & L2 Real Rights and Things

Key terms and cases (Issue / Facts / Held), made from my OneNote notes. All cases and 'Added' notes are from outside the notes (Gretton & Steven).

What is property law, and what does it deal with?

The law of THINGS (res), moveable and immoveable, and the RIGHTS people have in them (jus / jura). It deals with the NATURE, CREATION, TRANSFER and EXTINCTION of those rights (e.g. ownership, servitudes, leases). In a broader sense it also covers rights in RIGHTS (incorporeal property, e.g. contractual rights), as long as the right is PATRIMONIAL.

What legal tradition is Scots property law based on, and what complicated it?

It is CIVILIAN (Roman-based). It was complicated by a long 'dalliance' with FEUDALISM: you did not own land outright but held it from a superior, ultimately the Crown. Feudal tenure was abolished on 28 November 2004 (the 'appointed day') by the Abolition of Feudal Tenure etc. (Scotland) Act 2000. Today it is increasingly STATUTORY and policy-driven (e.g. land reform, and the statutory right to roam under the Land Reform (Scotland) Act 2003).

Name the three statutes that came into force on 28 November 2004

All three were Scottish Law Commission projects:

1. Abolition of Feudal Tenure etc. (Scotland) Act 2000
2. Title Conditions (Scotland) Act 2003 (real burdens and servitudes)
3. Tenements (Scotland) Act 2004

Name the more recent property law reform statutes

• Land Registration etc. (Scotland) Act 2012 • Long Leases (Scotland) Act 2012 • Moveable Transactions (Scotland) Act 2023 (assignation of claims and the new statutory pledge) • Trusts and Succession (Scotland) Act 2024 • Digital Assets (Scotland) Act 2026 (as recorded in your notes) Sources of property law: common law + statute. Much reform comes from Scottish Law Commission projects or government policy prepared by the civil service.

How does the ECHR protect property in Scots law, and through which statutes?

Scotland has no written constitution with a property clause. That role is played by the ECHR, especially ARTICLE 1 OF PROTOCOL 1 (A1P1, added 1952). ARTICLE 8 (respect for home and private life) can also be relevant. It takes effect through the HUMAN RIGHTS ACT 1998 and the SCOTLAND ACT 1998 (Acts of the Scottish Parliament and the Scottish Ministers must be Convention-compatible, so an incompatible ASP is outside competence).

A1P1: what are its three rules?

1. Peaceful ENJOYMENT of possessions (the general principle).
2. DEPRIVATION of possessions by the state only in the public interest and subject to conditions provided by law.
3. The state may CONTROL THE USE of property in the general interest. Added: this three-rule reading comes from Sporrong and Lönnroth v Sweden (1982).

A1P1: what steps do you work through to decide whether it has been breached?

1. Is the thing a protected 'POSSESSION'?
2. Has there been an INTERFERENCE, and of what kind (deprivation, control of use, or other)?
3. Is the interference a BREACH? It is a breach if ONE OR MORE of these is established: (i) it lacks a basis in DOMESTIC LAW (fails legal certainty); (ii) it is not justified in the GENERAL / PUBLIC INTEREST; (iii) it is not PROPORTIONATE: no FAIR BALANCE between individual and collective interests. Added: states get a wide margin of appreciation. Deprivation without compensation will normally be disproportionate (James v UK).

Article 8 ECHR: why is it relevant to property law?

It gives the right to respect for private and family life, HOME and correspondence. A public authority may interfere only if it is IN ACCORDANCE WITH THE LAW and NECESSARY IN A DEMOCRATIC SOCIETY for a listed aim: national security, public safety, the economic well-being of the country, prevention of disorder or crime, protection of health or morals, or the rights and freedoms of others. In property law it matters for evictions and repossessions of homes.

Patrimonial right

A right with ECONOMIC VALUE, i.e. an ASSET (sometimes loosely called a 'property right'). Examples: • ownership of moveable or immoveable property • servitudes • contractual rights • a right to damages (even if the underlying interest, e.g. bodily integrity, is non-patrimonial)

Patrimony: definition, who has one, and the trust exception

PATRIMONY = the totality of a person's (i) ASSETS (patrimonial rights) AND (ii) LIABILITIES. A company's balance sheet sets out its patrimony, or 'estate'. • EVERY person, natural or juristic, has a patrimony. Legal personality implies patrimony. • Norm: one person, one patrimony. • Exception: a TRUSTEE has two, the general patrimony and the TRUST patrimony. Trust property is ring-fenced from the trustee's personal creditors. Added: Heritable Reversionary Co v Millar (1892) is the classic authority.

Personal right vs real right: definitions and Latin terms

• PERSONAL right (jus in personam): a right against a PERSON or a determinate group. It is 'relative'. Examples: contract, delict, unjustified enrichment, a beneficiary's right against trustees. • REAL right (jus in rem): a right directly in a THING, enforceable against the WORLD (erga omnes). It is 'absolute'. It can be analysed as a bundle of personal rights against everyone. The principal real right is OWNERSHIP.

Why does the real/personal distinction matter in practice? (two scenarios)

1. INSOLVENCY: a secured creditor with a real right (e.g. a standard security) can sell the asset and is paid ahead of unsecured creditors, who have only personal rights.
2. SUCCESSORS: a contract allowing you to park on your neighbour's land binds only that neighbour. If they sell, the new owner is not bound. A SERVITUDE is a real right, so it binds successors. Also, a real LEASE of land survives the landlord's sale; hire of a car or boat does not.

The four traditional classes of property (things)

1. CORPOREAL HERITABLE: land and things forming part of land (partes soli), naturally (soil, stones) or by ACCESSION (buildings).
2. CORPOREAL MOVEABLE: all other corporeal things (tables, cars).
3. INCORPOREAL HERITABLE: (a) rights connected with land (leases, standard securities, servitudes); (b) certain permanent rights not connected with land, i.e. titles of honour and peerages, coats of arms, and rights with a TRACT OF FUTURE TIME (e.g. an annuity).
4. INCORPOREAL MOVEABLE: all other incorporeal things (shares, patents, contractual claims, and digital assets).

Why is 'heritable vs moveable' a misleading label?

MOVEABLE property can be inherited just as much as heritable property. 'Heritable' essentially means IMMOVEABLE: land and rights connected with land. Exceptions to the land link: • some heritable rights are NOT connected with land: peerages, and rights with a 'tract of future time'; • some land-connected rights are treated as MOVEABLE for some purposes. Your notes mention security rights. Added: in the creditor's succession, heritable securities are generally treated as moveable (Titles to Land Consolidation (Scotland) Act 1868 s.117); check this detail.

Corporeal vs incorporeal property

• CORPOREAL: physical and tangible (land, a chair). • INCORPOREAL: everything else, i.e. RIGHTS (both real and personal), plus some 'odds and ends' such as electricity. Because one can have rights in things, one can have rights in RIGHTS (i.e. in incorporeal property). This is a traditional but disputed analysis.

Real right and 'principal real right'

REAL RIGHT = a right IN a thing (jus in rem). PRINCIPAL real right = OWNERSHIP (dominium). Civilian texts describe it as the right to USE, ENJOY, CONSUME and DESTROY the thing. The holder is the owner or proprietor. For CORPOREAL MOVEABLES, ownership is almost always the ONLY real right (apart from security by pledge).

Subordinate real rights (jura in re aliena)

A real right in a thing held by someone OTHER than the owner. They are also called 'secondary' or 'subsidiary' real rights. The Latin means 'rights in the property of another'. Where one exists there are ALWAYS at least TWO real rights: X's ownership and Y's subordinate right. They are common for immoveable property. They reduce the value of the ownership (e.g. land burdened by many servitudes is worth less).

Numerus clausus

'Closed number': the list of real rights is (probably) FIXED. Parties cannot invent new real rights by contract, because real rights bind third parties (the world). The NOMINATE subordinate real rights are: (i) SERVITUDE (ii) NEGATIVE REAL BURDEN (iii) PROPER LIFERENT (iv) RIGHT IN SECURITY (v) LEASE of immoveable property Possible additions: public rights (public rights of way, the public's rights in the foreshore), exclusive privileges / IP, and possession.

Servitude

A subordinate real right to make LIMITED USE of a neighbour's land. It benefits a 'benefited property' and burdens a 'burdened property' (added: traditionally called the dominant and servient tenements). Examples: a right of access on foot, with animals or with vehicles; a right to lead pipes or cables. Typical scenario: selling off part of your land but keeping access over it. Because it is REAL, it binds SUCCESSORS in ownership of the burdened land, unlike a contractual permission. Added: governed now by the Title Conditions (Scotland) Act 2003 Part 7.

Real burdens: NEGATIVE vs AFFIRMATIVE

A real burden is an obligation affecting land for the benefit of other land (Title Conditions (Scotland) Act 2003). • NEGATIVE: a PROHIBITION, e.g. no trading or no further building (e.g. no shop, no large garage). This is a SUBORDINATE REAL RIGHT, enforceable against everyone. • AFFIRMATIVE: an obligation to DO something, e.g. maintain a boundary fence 50/50. It is NOT a real right. Clarification: it is a REAL OBLIGATION, a personal obligation that binds whoever is OWNER for the time being, so it passes to SUCCESSIVE owners.

Proper liferent vs improper (trust) liferent

LIFERENT = the right to use and enjoy property (and take its fruits) for life, without destroying its substance. The Roman equivalent is USUFRUCT (the notes spell it 'usufract'). • PROPER liferent: a SUBORDINATE REAL RIGHT held directly in the property. • IMPROPER (trust) liferent: the property is held by TRUSTEES, and the liferenter has only a PERSONAL right against them. The outcome is similar, but it is not a real right. Added: in practice most modern liferents are improper (trust) liferents.

Lease of land vs hire of moveables: which is a real right?

A LEASE of LAND (immoveable property) can be a SUBORDINATE REAL RIGHT. If the landlord sells, the tenant can stay, because the lease binds the new owner. Added: at common law this requires the Leases Act 1449 conditions (writing if over a year, rent, an ish (end date), and possession), or registration for long leases. HIRE of MOVEABLES (a car, a boat) is only a PERSONAL (contractual) right.

Rights in security: examples and why they matter

A subordinate real right that SECURES a debt. It lets the creditor enforce against the ASSET (sell it) if the debtor fails to pay, and gives protection in the debtor's INSOLVENCY. • Land: STANDARD SECURITY, the Scots 'mortgage' (added: Conveyancing and Feudal Reform (Scotland) Act 1970). • Corporeal moveables: PLEDGE (delivery to the creditor, e.g. a pawnbroker) and the new STATUTORY PLEDGE (registered, no delivery needed) under the Moveable Transactions (Scotland) Act 2023. The loan itself is a contract (a personal right). The security is the real right backing it.

Prior tempore potior jure

'Earlier in time, stronger in right.' The PRIORITY (ranking) of competing REAL rights is determined by the date each became REAL (e.g. the date of registration for land). It is not the date of the contract.

How does a right become REAL? (the publicity principle)

Added (a key Gretton & Steven point, examined in Burnett's Tr v Grainger): A contract only gives a PERSONAL right. The real right needs a PUBLIC act: • LAND: REGISTRATION in the Land Register (LR(S)A 2012 s.50). Delivery of the disposition is NOT enough. • CORPOREAL MOVEABLES: DELIVERY. The exception is sale of goods, where property passes when the parties INTEND (Sale of Goods Act 1979 ss.17–18). • INCORPOREAL MOVEABLES (claims): ASSIGNATION + INTIMATION to the debtor, or registration under the Moveable Transactions (Scotland) Act 2023.

Personal rights: four main sources

1. CONTRACT (e.g. a buyer's right against a seller who fails to deliver)
2. DELICT (e.g. a right to sue in negligence: Donoghue v Stevenson)
3. UNJUSTIFIED ENRICHMENT (e.g. getting back money paid into the wrong account by mistake)
4. TRUST: a beneficiary's right against the trustees They are enforceable only against a particular person or determinate group.

Beneficial interest (trusts)

A special kind of PERSONAL right that a trust beneficiary has AGAINST THE TRUSTEE in relation to the trust property. It is NOT a real right in the trust property. This is a key contrast with English law's 'equitable ownership'. Scots law has no split between legal and beneficial ownership.

Real obligations

Obligations that sit between real and personal rights. They are PERSONAL obligations, but they run with the land, binding whoever is the owner for the time being. The main example is the AFFIRMATIVE REAL BURDEN (e.g. a duty to maintain a fence).

Public property: common good, Crown property and the regalia

• COMMON GOOD property: local authority property held for the community. Essentially it is like private ownership, but with RESTRICTIONS on its sale and management. • CROWN property is divided into the Crown PUBLIC estate and the Crown PRIVATE estate. • REGALIA: the Crown's property rights, corporeal and incorporeal. Added: regalia MAJORA are inalienable rights held in trust for the public (e.g. public rights in the foreshore and sea). Regalia MINORA can be transferred (e.g. salmon fishings, gold and silver mines).

What CANNOT be property?

• RUNNING WATER, the WIND and the air: they belong to no one (res communes). • HUMAN BEINGS: no property in persons. Grey areas: separated body parts (e.g. a child's lost tooth probably becomes property). Incorporeal 'odds and ends' such as electricity and gases can be property.

A holds a lease of B's land. What rights do A and B have, in what?

• B: the REAL RIGHT OF OWNERSHIP in the LAND (corporeal). • A: a REAL RIGHT OF LEASE in the LAND, i.e. a subordinate real right. • A also has OWNERSHIP of the LEASE itself, which is incorporeal property. How you describe A's position depends on which 'thing' you focus on (the land or the lease). Personal rights (e.g. contractual claims) can also be owned. The ONE right that is not itself property is OWNERSHIP: you cannot 'own ownership'.

Digital assets (Digital Assets (Scotland) Act 2026, per your notes)

• Broad, everyday sense: crypto, domain names, emails, social media accounts, etc. • Narrow statutory meaning (s.1): a thing that ARISES FROM AN ELECTRONIC SYSTEM that makes it RIVALROUS (only one person can hold it, which rules out photos and files), and that EXISTS INDEPENDENTLY of the legal system (which rules out patents and other purely legal rights). Your notes also say this excludes cryptocurrencies, which seems inconsistent: crypto is the main example the Act was designed for. Check your lecture slides. • s.2: digital assets are INCORPOREAL MOVEABLES. Check section numbers and wording against the Act or lecture slides.

Key Latin terms for Week 1

• res: thing • jus / jura: right(s) • jus in rem: real right • jus in personam: personal right • erga omnes: against everyone • dominium: ownership • jura in re aliena: rights in another's thing (subordinate real rights) • numerus clausus: closed list of real rights • partes soli: parts of the soil • tractus futuri temporis: tract of future time • prior tempore potior jure: earlier in time, stronger in right

CASE: Burnett's Trustee v Grainger 2004 SC (HL) 19

Added. This is the leading case on real vs personal rights, central to Week 1–2 and the heart of Gretton & Steven ch 4. Issue: Does a buyer who has paid and received a delivered (but UNREGISTERED) disposition have a right in the land that prevails over the seller's trustee in sequestration (bankruptcy)? Facts: The Graingers bought a flat, paid the price, and received the disposition, but did not register it for over a year. Meanwhile the seller was sequestrated, and the trustee (Burnett's Tr) completed title by registering first. Held: The TRUSTEE won. Ownership of land passes only on REGISTRATION, so until then the buyer has only a PERSONAL right against the seller. The HL rejected Sharp v Thomson's 'beneficial interest' reasoning as a general principle, reaffirming the strict real/personal divide and the civilian 'unitary' concept of ownership.

CASE: Sharp v Thomson 1997 SC (HL) 66

Added (read with Burnett's Tr v Grainger). Issue: Did a flat still count as part of a seller company's 'property and undertaking', so as to fall under a floating charge, after the price was paid and the disposition delivered but before registration? Facts: The Thomsons bought a flat from Albyn Construction Ltd and received a delivered disposition. Before they registered it, the company's floating charge crystallised on the appointment of receivers. Held: The flat was NOT caught by the floating charge. The HL held that, on delivery of the disposition, the seller no longer had a beneficial interest in it. This was heavily criticised as importing English 'equitable' reasoning. It was confined to its facts by Burnett's Tr v Grainger (floating charges only).

CASE: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35

Added. This is the source of the A1P1 'three rules' in your notes. Issue: Did long-running expropriation permits and building bans on the applicants' Stockholm properties breach A1P1? Facts: The properties were subject to expropriation permits (for 23 and 8 years) plus building prohibitions. They were never actually expropriated, but they could not be developed and were hard to sell. Held: A BREACH of A1P1. The ECtHR set out the THREE RULES and the FAIR BALANCE test. Leaving the owners in uncertainty for so long with no compensation upset the fair balance between the general interest and individual rights.

CASE: James v United Kingdom (1986) 8 EHRR 123

Added (A1P1: deprivation in the public interest). Issue: Did UK leasehold enfranchisement legislation, which let long leaseholders compulsorily buy the freehold, breach the landlords' A1P1 rights? Facts: The Duke of Westminster's trustees lost freeholds in Belgravia under the Leasehold Reform Act 1967, at prices below market value. Held: NO breach. Social justice in housing is a legitimate 'PUBLIC INTEREST' even when property goes to private individuals. States have a WIDE MARGIN OF APPRECIATION. Compensation need not be full market value, but taking property with no compensation would normally be disproportionate.

CASE: Salvesen v Riddell [2013] UKSC 22

Added. A Scottish example of A1P1 invalidating an Act of the Scottish Parliament. Issue: Was s.72 of the Agricultural Holdings (Scotland) Act 2003 compatible with A1P1? Facts: s.72 was a transitional anti-avoidance provision. It converted certain limited-partnership agricultural tenancies into secure tenancies, but its date-based rules treated landlords arbitrarily depending on when notices had been served. Held: s.72 was INCOMPATIBLE with A1P1. The aim was legitimate, but the means were arbitrary and disproportionate (no fair balance), so the provision was OUTSIDE LEGISLATIVE COMPETENCE (Scotland Act 1998 s.29). The court suspended its order to let the Scottish Parliament fix it.

CASE: Heritable Reversionary Co Ltd v Millar (1892) 19 R (HL) 43

Added (the trust / dual patrimony point in your L1 notes). Issue: Was property held by a person in trust available to their personal creditors on their sequestration? Facts: McKay held title to heritable property as a trustee (nominee) for the Heritable Reversionary Company. He was then sequestrated, and his trustee in sequestration claimed the property. Held: The property did NOT pass to the creditors. Property held in trust is not part of the trustee's personal estate. This is the root of the Scots idea that a trustee has a SEPARATE TRUST PATRIMONY.

CASE: Brand's Trustees v Brand's Trustees (1876) 3 R (HL) 16

Added (accession: how moveables become part of land, i.e. corporeal heritable, class 1 in your notes). Issue: Did machinery installed by a tenant become part of the land (heritable), so that it belonged to the landowner? Facts: A tenant under a mineral lease installed engines and machinery for the coal workings, and later became owner of the land. On his death, the heir (entitled to HERITABLE estate) and the executors (entitled to MOVEABLE estate) disputed who owned the machinery. Held: The machinery had ACCEDED to the land and was HERITABLE. The test for accession is OBJECTIVE: physical attachment, functional subordination to the land, and permanence. The tenant's privilege to remove 'trade fixtures' is only a personal right against a landlord, so it did not apply he