PTS Compiled

Property Law

The rights individuals have in things, with ownership being the most significant right.

Servitudes

Other types of property rights, such as the right to use someone else's property for a specific purpose.

Nature, Creation, Transfer, and Extinction

The key aspects of property law, including the characteristics, establishment, transfer, and termination of property rights.

Contractual Rights

Rights that behave like property rights, often considered patrimonial assets.

Patrimonial Assets

Both contractual rights and rights in physical property that are considered as assets.

Succession Law

Deals with property upon death and is sometimes seen as part of property law.

Trust Law

Closely linked to property law but treated separately.

Scots Property Law

Primarily based on Roman law with some English influence.

Feudal Law

Had a significant impact on property law in Scotland but has been gradually abolished.

Udal Law

Applies in Orkney and Shetland and is non-feudal in nature.

Property law in Scotland is a combination of these two legal sources.

Statute Law and Common Law

Estate Act 2019

Established the Scottish Land Commission and introduced property protection clauses.

Patrimonial Rights

Rights with economic value, such as ownership of land or moveable property.

Personal Rights

Rights against a person, such as rights arising from contracts or liability in the law of delict.

Real Rights

Rights directly in a thing, with ownership being the principal real right.

Distinction Between Personal Rights and Real Rights

Personal rights are rights against a person, while real rights are rights directly in a thing.

Corporeal Property

Physical items like bicycles and houses.

Incorporeal Property

Everything else, including contractual rights, copyrights, and shares in a company.

Heritable Property

Refers to land and rights connected to land.

Moveable Property

Refers to everything else, including corporeal items and intellectual property rights.

Categories of Property

Corporeal moveable property, corporeal heritable property, incorporeal moveable property, and incorporeal heritable property.

Constitution, Transfer, and Extinction of Rights

The three events in property law involving the creation, transfer, and termination of rights.

Principal Real Right

Ownership, also known as dominium or proprietorship.

Servitude

A subordinate real right that allows someone to use another person's property for a specific purpose.

Contractual Right

A personal right that can be revoked if the property changes ownership.

Encumbered ownership

Ownership of a property with multiple servitudes and limitations that can decrease its value.

Real rights

Fragments of ownership held by someone else, but the owner retains the overall right of ownership.

Subordinate real rights

Additional rights held by someone other than the owner of the property.

Liferent

A subordinate real right that allows the holder to possess a property for their lifetime.

Numerus clausus

The fixed list of nominate real rights recognized in property law.

Absolute rights

Rights that are legally enforceable against others and are not limited to physical property.

Intellectual property rights

Real rights pertaining to intangible property.

Possession

A quality that sometimes classifies as a real right.

Crown property

Property owned by the Crown, divided into Crown Public Estate and Crown Private Estate.

Common-good property

Property governed by specific acts and regulations related to local government and community empowerment.

Transfer of rights

The passing of a right from one person's patrimony to another's.

Capacity

The necessary legal ability for both parties involved in a transfer of rights.

Specificity principle

The principle that only what can be identified can be transferred.

Separation principle

The distinction between the contract and conveyance in property law.

Publicity principle

The requirement of an external act to make acts affecting third parties public.

Registration

An alternative to delivery in modern law for the conveyance of property.

Transfer of Ownership

The process of acquiring ownership rights in property.

Instantaneous Title Completion

The moment when ownership rights are fully acquired.

Real Rights

Rights that are valid against the whole world, not just between the parties involved.

Floating Charge

A security right that extends over the entire property of a debtor company.

Beneficial Interest

A disputed term referring to a person's interest in property outside of trust law.

Voidable Title

A title that can be avoided or invalidated due to certain grounds.

Remedies for Voidable Titles

Actions that can be taken to address voidable titles, such as re-transfer or reduction.

Reduction of Voidable Titles

The process of avoiding or invalidating a voidable title.

Granter's Title

The legal status of the person transferring ownership rights.

Grantee's Right

The legal status of the person receiving ownership rights.

Nemo Plus Principle

The principle that one cannot transfer a right they do not possess.

Acquisition by Voluntary Transfer

The process of acquiring rights through voluntary transfer, such as assignation.

Prior Tempore, Potior Jure

The principle that the earlier acquisition of rights takes precedence.

Real Rights of Grantees

The rights acquired by a grantee in a property transfer.

Grantee's right

Subject to the existing real rights of third parties.

Personal rights of third parties

Generally do not affect the grantee.

Exceptions to personal rights

Can arise if the granter's title is voidable and the grantee was aware of the third party's right and acted onerously.

Trust law

If trustees transfer trust property in breach of trust and the transferee knows of the breach or acquires gratuitously, the transferee takes subject to the rights of the beneficiaries.

The Trusts (Scotland) Act 1961

Modified the rule, stating that when trustees sell, the buyer's title cannot be challenged, but the common law still applies to gratuitous transferees.

'Offside goals' rule

Refers to the idea that an acquisition made in bad faith, knowing it's in breach of a contractual right, can be reduced.

A case of a personal right prevailing over a real right.

Applies only to voluntary grantees and does not apply to creditors doing diligence or trustees in sequestration.

Marjorie Bell's disposition

Reduced because she knew of the first set of missives regarding the sale to Rodger (Builders) Ltd. The court deemed her acquisition to be in bad faith.

Differing opinions on the rule

Some argue for its abolition due to complexity and uncertainty in the law.

Conditions for the rule to apply

Further details not provided in the given text.

Wallace v Simmers

The court held that even if the buyers knew of the prior right, they were not bound by it.

Timing of personal rights and registrations

Crucial role in determining the application of the "offside goals" rule.

Alex Brewster & Sons v Caughey

Upholds the more severe form of the rule, but its soundness is questionable.

Not every breach triggers the rule

Advice Centre for Mortgages v McNicoll.

Acquisition by voluntary transfer

Margaret's right was not a lease but a personal right incapable of becoming a real right.

Trade Development Bank v Warriner & Mason (Scotland) Ltd

Bank sought to reduce a lease agreement due to breach of agreement. The bank had a real right, not a personal right.

Doctrine of accretion of title

Title of the granter becomes void, validating the title of the grantee if the granter acquires title from the true owner.

Scope of accretion of title

Application to immoveable property and requirement of absolute warrandice.

Infeftment

Feudal term that should not be used.

Unregistered holder

Someone who has the power to complete title but has not yet done so.

Examples of unregistered holders

Executors who have obtained confirmation to immoveable property but have not completed title.

Deeds by unregistered holders

Can grant certain types of deeds as if they were the owner.

Midcouples or links in title

Breach of Warrandice

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

Eviction

In the context of warrandice, eviction refers to a successful assertion of the true owner's right, not physical removal.

Contractual Warrandice

In contractual warrandice, the buyer has a stronger position and eviction is irrelevant. The buyer can refuse to settle until the agreed terms are met.

Assignment of Warrandice

The benefit of warrandice can be assigned, allowing the assignee to have the benefit of two warrandices.

Gap Risk

Gap risk refers to the period between settlement and registration of a property transaction, during which the buyer is at risk if the seller becomes insolvent.

Letter of Obligation

A letter of obligation used to be given by the seller's solicitors to cover the gap risk in property transactions.

Advance Notices

LR(S)A 2012 introduced advance notices as an alternative to letters of obligation to address the gap risk in property transactions.

Transfer of Real Rights

Subordinate real rights in land are transferred by assignation, while registered leases are assigned by registering the assignation in the Land Register and unregistered leases are assigned by taking possession and notifying the landlord.

Transfer of Standard Security

Standard security is transferred by registration in the Land Register or the Sasine Register.

Transfer of Ownership

The transfer of ownership in common law requires delivery, which is the transfer of possession, and mutual consent.

Sale of Goods Act 1979

The Sale of Goods Act 1979 applies to transfers in implement of a contract of sale, while common law rules apply to non-sale transfers.

Existing Goods

"Existing" goods are those the seller already has at the time of the contract of sale.

Future Goods

"Future" goods are those to be manufactured or acquired after the contract of sale.

Specific Goods

"Specific" goods are existing goods identifiable at the time of the contract.

Unascertained Goods

"Unascertained" goods cannot be identified at the time of the contract.

Registered Moveable Property

Motor vehicles, ships, and aircraft are classified as registered moveable property.

Retention of Title

Retention of title clauses allow ownership to pass when the buyer pays, and the seller can rescind the contract for material breach if the buyer fails to pay.

Exceptions to Nemo Plus Principle

The Sale of Goods Act 1979 has exceptions to the nemo plus principle, including second buyers who take delivery in good faith and buyers who deliver or transfer the property to a third party before paying.

Transfer of Personal Rights

Personal rights are typically transferred through assignation or cession, and exceptions exist in cases such as retention of title.

Assignation of Contract

Assignation of contract refers to the transfer of contractual rights, not the entire contract itself, and requires both assignation of rights and delegation of duties.

Transfer of Property

The transfer of property involves a contract to assign, intimation to the debtor, and the replacement of the cedent as the creditor of the debtor.

Assignatus utitur principle

The assignee can only have the same rights and benefits as the assignor at the time of assignment.

Warrandice

The guarantee that a claim being assigned actually exists in the form it appears to have.