Property 5-7

What is co-ownership?

Ownership of property by more than one person.

What are the two types of co-ownership in Scots law?

Common ownership and joint ownership.

What is joint ownership?

Unitary ownership held by a group acting as one legal person.

When does joint ownership arise?

Trust property and unincorporated associations.

What happens to a joint owner’s share on death?

It extinguishes and vests in the remaining joint owners.

What is common ownership?

Ownership in distinct pro indiviso shares.

What does pro indiviso mean?

Each owner owns an undivided share of the whole.

What is the presumption regarding shares in common ownership?

Shares are equal.

Does a pro indiviso share form part of the owner’s estate?

Yes.

What is the “every inch” rule?

Each co-owner is entitled to possess every part of the property.

What limits apply to use of common property?

Ordinary use only and no excessive benefit.

Can a co-owner make alterations to common property?

Only with unanimous consent.

Are necessary repairs an exception to unanimity?

Yes.

What happens to a pro indiviso share on insolvency?

It vests in the trustee in sequestration.

Can a co-owner sell their pro indiviso share?

Yes, in principle.

Can a co-owner grant a subordinate real right over their share?

Generally no if it prejudices others.

What is the remedy for an unhappy co-owner?

Action of division or sale.

What does “communio est mater rixum” mean?

Common property is the mother of disputes.

Can common ownership always be ended?

Yes, subject to limited exceptions.

What is a tenement?

A building divided horizontally into two or more separately owned flats.

Which statute governs tenements?

Tenements (Scotland) Act 2004.

What is the solum?

The ground on which the tenement stands and related land.

What are sectors in a tenement?

Flats, closes, lifts, or other three-dimensional spaces.

What is the general boundary rule in tenements?

Ownership extends to the median between sectors.

Who owns external walls and the solum?

The owner of the relevant sector.

What is a pertinent?

A part of the tenement that belongs to a flat.

What statute provides default rules for tenement boundaries?

Tenements (Scotland) Act 2004, ss 1–3.

What obligations exist regarding shelter and support?

Owners must maintain parts providing shelter or support.

What is the Tenement Management Scheme (TMS)?

A statutory default management scheme.

When does the TMS apply?

Where titles are silent or incomplete.

What is scheme property?

Common property or parts maintained by multiple owners.

Who can make a scheme decision?

A majority of owners entitled to vote.

Are meetings required for scheme decisions?

No.

What costs are scheme costs?

Costs for maintenance and management of scheme property.

How are scheme costs normally divided?

Equally, unless otherwise provided.

What are emergency works?

Urgent works necessary to prevent damage.

Can one owner carry out emergency works?

Yes.

What is possession?

Physical control with intention to possess.

What are the two elements of possession?

Corpus and animus.

Can someone possess without owning?

Yes.

Can someone own without possessing?

Yes.

What is civil possession?

Possession retained without physical presence.

What is natural possession?

Physical control of a thing.

What happens when possession is lost?

Intention ceases or another takes control.

What presumption arises from possession of corporeal moveables?

The possessor is presumed to be the owner.

What is spuilzie?

Protection against unlawful dispossession.

What is the Register of Sasines?

A register of deeds established in 1617.

Is the Sasines Register a register of title?

No, it is a deeds register.

What is required to obtain a real right in Sasines?

Recording of a valid deed.

Is recording in Sasines always sufficient?

No.

What role does positive prescription play in Sasines?

It resolves uncertainty of title.

What is a foundation writ?

A deed sufficient to found prescriptive possession.

How long is the prescriptive period for land?

10 years.

What happens if a deed is a non domino?

The title is void.

Can positive prescription cure a void title?

Yes.

What is the Land Register?

A register of title introduced under the 1979 and 2012 Acts.

Which statute governs the modern Land Register?

Land Registration etc. (Scotland) Act 2012.

What is the key advantage of the Land Register?

It shows who owns the land.

What is the cadastral map?

A map showing legal title boundaries.

What does each title sheet contain?

Property, proprietorship, securities, and burdens sections.

When did Sasines close to dispositions?

8 December 2014.

What is Keeper-induced registration?

Registration initiated by the Keeper.

Why is the Land Register being completed?

Transparency and certainty of land ownership.