Property Law

Property Law

Land, buildings and rights associated with them (e.g. burdens and servitudes) are heritable property. Christie V Smiths Executors – A large summer house became heritable. Some moveable items may become heritable when attached to a property. For this to happen they require; a physical attachment, functional subordination and a degree of permanency. Scottish Discount Co V Blin 1985 – Parties could decide whether a moveable object accedes or not.

Heritable property is transferred through a disposition. Ownership does not transfer until this is registered in the Land Register or the Register of Sasines. This gives the owner a real right.

Transfer of ownership is regulated by the Sale of Goods Act 1976. Section 16 says that ascertained goods do not transfer ownership until they become ascertained. Section 17 details the transfer of specific goods, These pass when the parties intended them to e.g. through contract or conduct. Woodburn V Motherwell Ltd- On purchase of haystacks it was agreed that Woodburn would leave hay in his yard for Motherwell to bale then Woodburn would deliver it to the rail-head to be weighed. Some bales were destroyed in a fire at the yard. Held that parties intended transfer when hay was at the disposal of Motherwell when it was left in Woodburn's yard to be baled.

Section 18 contains the rules for ascertaining ownership:

Rule 1: Goods are in a deliverable state and marked as yours.

Rule 2: Goods have been altered to your specifications

Rule 3: Goods have been weighed.

Rule 4 (on approval/sale or return): Ownership passes when the buyer notifies the seller he's accepting the goods, acts in a way consistent with acceptance, doesn't reject the goods within the time limit and retains the goods for a reasonable time. Pool V Smiths Car Sales - Poole left his car with Smith on a sale or return basis in August. The car was returned in November in a bad state. Held that ownership had passed.

Under Section 29 of the Consumer Right Act goods remain at the traders risk until they are delivered to the consumer unless the consumer is responsible for choosing a courier.

The occupiers Liability (Scotland) Act 1960 means that occupiers of land now have a duty to take reasonable care to avoid injury of others that is due to the state of the premises. This doesn’t matter whether the person is an invitee or not. This cannot be adjusted or reduced in business property. Taylor V Glasgow Corporation 1952 – Children injured by eating poisonous red berries in a park. Held that it was reasonably foreseeable that the children would wish to eat them as they looked attractive. Section 2 of the Unfair Contract Terms Act 1977 does not allow liability to be excluded for personal injury or death.

Feudalism was a system of land holding which was abolished by The Abolition of Feudal Tenure etc (Scotland) Act 2000.

The Land Register of Scotland was brought in with the Land Registration Scotland Act 1979 to replace the Register of Sasines which had been in place since 1613. The Land Register has 4 Sections; property, proprietorship, charges and the burdens.

Register of Sasines

Title not guaranteed until after 10 years due to prescription.

Inaccurate descriptions

If the title deed is faulty the register does not cure the defect

Land

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