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Property Rights in Land Notes
General




Ownership of land must always be in writing
...

Heritable property is more closely regulated than moveable
...
Personal rights can only be
enforced against a specific person
...

Real rights- rights in things- Can be enforced against anyone
...
The right attaches upon the thing itself
...

Example of real rights- If someone forges the signature of a homeowner and transfers the house to
an innocent third party, the original owner can get the house back through the real right of
ownership which can be enforced against anyone
...
It applies to situations where the land lord becomes insolvent
also
...

 Only gives personal right against the seller
...

 Usually there is qualified acceptance until an acceptance is reached
...

 There is usually a series of offers and counter offers
...

 Missives have to be signed to be valid although this is usually done by an agent such
as a solicitor on behalf of the parties
...

 Gibson v Hunter Home Designs Ltd 1976 SC 23-Gibson agreed to buy house in
Dunfermline
...

The builders became insolvent and went into liquidation
...
Gibson claimed he had
ownership due to the missives but the court held that he had no right in ownership,
and only had a personal right against the seller
...

Content of missivesThe main terms define the price, the subjects (the property) and the date of entry
...
g
...

Condition of property (e
...
if the buyer complains within a certain time the seller
will fix the problems with the property
...
)
Risk- If accidental damage is done to the property after contract is made, but before
buyer becomes owner- who carries the risk and when is it transferred?- Sloan's
Dairies v Glasgow Corporation 1977 SC 223- Glasgow Corp entered into contract to
buy buildings from Sloans dairies
...
GC
refused to pay full price but Court said this was not allowed- the common law rule is
that risk passes to buyer after contract is made
...

The missives continue to be enforceable after delivery of the disposition (Contract
(Scotland) Act 1997, s
...


2) Disposition Formal deed of transfer need to become owner- also known as conveyance
...

Bind parties on delivery but does not transfer ownership (s50(3) Land Registration
(Scotland) Act 2012)
Usually grantor signs on right, witness on the left
...


Narrative Clause- Identifies seller, states the subjects to be transferred
...
Also lists price and identifies the seller
...
All and whole
means everything on property
...
Identification- Can give a description or refer to
description in a previous deed
...




Entry Clause- States date of entry



Warrandice Clause- In sales of land two guarantees are implied:
1) The buyer will not be evicted from the land
...
it emerges that Lindale homes had bulilt part of the block
of flats on land that did not belong to them
...
Miss Clark was trying to sell the flat without owning all of it
...
She sues lindale homes for not giving
her ownership of the whole flat
...
(someone establishing a better right to the property)
Therefore had the neighbour turned up and sued her for the land, she could
successfully sue Lindale Homes, however as the neighbour took no steps at all to
enforce their right there had been no eviction
...

2) The land is not subject to any unduly onerous burdens
...

Lothian & Border Farmers v McCutcheon 1952 SLT 450- There was an
agreement for sale of area of land which it turns out had a tenant
...
The buyer
finds out that there is a tenant and sues the seller for breach of warrandice due
to an unduly onerous burden
...

NOTE: Warrandice can be contracted out of or restricted- In a sale the clause
"and I grant warrandice" implies full warrandice
...

Simple warrandice- used in gifts of land- says nothing about title- between now
and time if ownership I will not do anything to get you evicted from this
property



Testing clause- Details the signing of the deed and the process used
...


Execution of deeds
Making the disposition valid:








Scots law is vague on criteria required to validate the disposition
...
(s7
...
3
Definition of a signature has been brought up in court- Park and anor
...
[2009]
CSOH 122-There was a document that had been sent by fax machine
...
The fax machine copy is not signed by the granter as it is a
copy of the signature- photocopy is not enough
Legibility?- Stirling Stuart v Stirling Crawfurd's Trs (1885) 12 R 610- Had medical
condition which made it hard to hold pen
...

Court held it was not valid as a signature, it is a copy
...
There is a reason why you
should sign legibly- if it is not legible no one will be able to know if it is a genuine
signature
...
7(2)):
(a) with the full name with which he is identified in the document;
(b) with his surname, preceded by at least one forename (or an initial or abbreviation or familiar
form of a forename); or
(c) with a name (not falling within (a) or (b)) or description or initial or mark, as long as it is the
granter's usual method of signing or was intended as a signature of the document in question
...

Note that a document signed using method (c) cannot be made probative
...
2 which apply to non-human granters:





Partnerships (para
...
3)- should be signed on company's behalf by one of the directors,
company secretary or someone authorised
...
3A)- signed by a member of the LLP
...
4)- proper officer of the authority should sign
...
5)- member of companies governing board, secretary of the
body, a person authorised to sign on the body's behalf
...
61



the deed contains words of incorporation; and
the earlier document is described in such a way that it can be identified_ such as referring
back to earlier deed
...
When you sell it on, you
can just refer back to earlier description in earlier deed for convenience
...
Where it is used to describe land, it must be signed
...

Procedure:
-granter subscribes (using method (a) or (b) in s
...
3(4)(c)); and in addition
⦁
must not be another granter (s
...
3(7)Cumming v Skeoch's Trs (1879) 6 R 963- The granter of the deed was ill in bed and had already
signed when the witness entered
...
He never directly said it was his signature, but court held this
to be enough
...

Lindsay v Milne 1995 SLT 487- The granter was said to have been present during the whole process
of the transfer
...
Although the granter was
present she had not in any way acknowledged the signature
...
Witness signs (using method (a) or (b) in s
...

7(5))The signature must be "one continuous process" with the event witnessed (s
...
3(4)(e))
Thomson v Clarkson's Trs (1892) 20 R 59- Court flexibility- witnesses visited the granter at home and
then without signing the deed they took the deed back to their office and signed as witnesses
between 30-45 minutes later
...
It
was held to be allowed
...
Allowed as soon as it is done as soon as is
practically possible
...


Proof of validityA disposition may or may not have been signed by the person who has appeared to sign it, so how
do you know? It can be impossible to tell
...

ProbativityProbativity=presumption of validity
Does not mean deed is valid, just looks like it on the surface
...
3(1) it bears to be subscribed by the grantor; (looks to have been signed by grantor
...

In the case of testamentary documents, s
...

Probativity doesn't make the deed valid, it can turn out to be invalid
...

 limited liability partnerships- two members
 local authorities and other bodies corporate- LA if subscribed by proper officer and sealed
with common seal
...

General rules of probativityName and address of a witness may be added at any time before the document is acted upon or
registered
...
4
Probativity means that the deed is presumed to have been validly executed- not proven to be validly
executed
...

In addition, if a probative document bears to state the date or place of subscription, that statement
is presumed to be accurate (s
...

To convert an improbative deed into a probative one, there can either be acknowledgment of the
granter or application to the Sheriff court under section 4
...
It removes probativity and reverses burden of
proof
...

Includes "interlineation, marginal addition, deletion, substitution, erasure or anything written on
erasure" (s
...
5(1)(a))
Alterations made after subscription are not part of the deed unless signed by the granter (s
...
5(4)), as long as the deed is probative (s
...

Morrisson v Robertson 1908 SC 332- sale of two cows
...
M takes him to be acting
as an agent and hands over the cows
...
Morrison believes he
handed the cows to W but he didn't intend Telford to become the owner
...

Chalmers v Chalmers 2015 SLT 793- The signature on the deed was a forgery
...

Consent- both parties must consent
...
He
gives it to the servant to deliver but he gives it to Monro on mistake
...
The
intentions of both parties did not meet and so there was no transfer of ownership
...
(Scotland) Act 2012
Section 50
...
Price was paid and they
moved in
...
Then Mrs B went bankrupt and the
trustees try to claim that the house was part of the estate and as the Graingers had not
registered the disposition they were not the owners
...

The property must be capable of identification
Macdonald v Keeper of the General Register of Sasines 1914 SC 854-There was an attempt
to record in the register a deed that described the property as the house at number 140
McDonald Road the title to which is in my name
...
The keeper rejected
this deed but the court backed the keeper saying that the keeper had an obligation to exercise
some kind of quality control over the description of properties
...
The homeowners refuted this
...

The property must be capable of being put on the cadastral map in the land register-Land
Registration etc (Scotland) Act 2012 Act, ss
...
61

Contract and Conveyance
A transfer of ownership usually has two stages:
 The contract which creates a legal obligation to transfer ownership
 The conveyance which is the actual act of transferring ownership
...

The agreement to transfer ownership and the actual transfer of ownership must be distinguished
...

Ownership may pass on the basis of a void contract- as long as the transfer of ownership is valid
...
2,3,14- we follow not that subtlety of annulling deeds- if you have a disposition you
don't need to annul the transfer because the contract is void- conveyance can stand on its own
and should be considered on its own
...
If
the act states what the consequence is or the policy behind it then the transfer may still be valid
...

Cuthbertson v Lowes (1870) 8 M 1073- agreement for sale of potatoes
...
The contract itself was void but the
seller had delivered the potatoes and the buyer refused to pay the price
...

Look at the conveyance individually and see if the requirements of conveyance have all been met
...

Void- requirements have not be fulfilled and transferee does not become owner
...

The transferee only has a potential remedy for breach of warrandice by the Transferor, as seen in
Clark v Lindale Homes
...

Voidable- May be set aside by the court
...
The remedy is
reduction or possibly unjustified enrichment
...
46
...

Stair, Inst
...


With voidable transfers you do become owner but the transfer is challengeable
...

If the deed is forged, the transfer is absolutely void
...
If fraudulent means have been used to coerce the owner into the transfer, then it
will be voidable and can be challenged
...
If they are all fulfilled then the transfer is valid but may be voidable
...
Inducing someone into the transfer makes it voidable
...
Wanted to sell motor vehicle and approached by
fraudster who pays with a stolen cheque book
...
Because all requirements were met, he become
owner and by the time the fraud was realised he had sold the vehicle to a third party in good faiththe third party became owner
...
34- deals with the situation where someone who is on the verge of bankruptcy gives away
property in an attempt to protect assets from insolvency
...

Transfers based on void contracts- Transfer can be voidable, but this is not always the case, it
depends why the contract is void
...

Rodger (Builders) Ltd v Fawdry 1950 SC 483- Rodger had entered into contract to buy land from
Fawdry
...
Court held he could not rescind and should
have given R more time to pay
...

On registering Bell became owner but when he agreed to buy the property he knew about the
contract with R- he bought it in bad faith so the transfer was voidable
...

Marshall v Hynd (1828) 6 S 384- Older case- almost identical to R v F except with movable property
...
- Agreement to sell or agreement to grant other real right
...

Wallace v Simmers 1960 SC 255- There was a family with property owned by the father who
gifts the land to his son on the agreement that the son will allow his parents and his sister to
stay there permanently
...
The court rejected the
sister's argument because the contract between the brother and sister created only personal
rights between the siblings and did not effect the third party- must be a real right or right
that is capable of becoming real for the off-side goals rule to apply
...
Rodger (Builders) Ltd v Fawdry- Had Bell known nothing at all about the
earlier agrement he would have been safe, but because he did know he was in bad faith
...


The Registration Process
Land must be registered for the transfer of ownership to be completed
...
3, 9)
The 2012 Act applies the nemo dat rule, subject to protection for acquirers in good faith
...
Register of sasines did no more than creating the register- did not cure any defects in
conveyance
...

The land Register
A register of title under the management of the Keeper of the Registers of Scotland ("the Keeper")
(s
...
2)- map
divided up into property units
...

The extent of ownership and other real rights is plotted on the cadastral map
...
3(1)
A long lease may also have a title sheet s
...

Each sheet has a title number
The structure is defined in s
...

Any disposition of land must be registered in the Land Register to be effective (s
...
22-26, which require (in s
...
6)- refer to these sections in
exam
...
22(2))- waste of keeper's time
The disposition must be valid (ss
...
23(1)(c); see also s
...
26(1)(c))

Effect of RegistrationRegistration of a valid disposition transfers ownership
...

Any encumbrance wrongly omitted from the title sheet is extinguished, as long as (s
...
67
Sometimes administrative mistakes are made or the keeper decides to leave a burden out and is
wrong
...
91 is entitled to be compensated (s
...


Inaccuracies and Rectification
In principle you should be able to rely on the land register as being correct at the time you acquire
property
...
65(1))
Any inaccuracy will normally be rectified, either on the Keeper's own initiative (s
...
81)
2012 act states that if the register is inaccurate it is to be rectified
...

The Keeper warrants the accuracy of the title sheet at the time of registration (s
...
75(1)(b))
Following rectification, the Keeper must compensate anyone for whom this breaches the Keeper's
warranty (s
...
78
The most important exclusions are where the applicant knew or ought to have known about the
inaccuracy (s
...
78(c))

Positive prescription
Positive prescription is the acquisition of rights by the passage of time
...
After a certain length of time if certain criteria is met the
occupier can be immune to change
...
Title is just an apparently valid deed in the
register which appears to give you ownership
...

Purposes of positive prescription:




To render a void or voidable title unchallengeable
...

To promote ease of conveyancing
...

Land Registration etc (Scotland) Act 2012, s
...
Allows registration of a non domino registration but must show you have
been in possession of the land for at least a year and that you have made efforts to track down the
actual owner of the land, which failing you have notified the crown
...
The purpose is undermined if the register contains titles that are not valid, giving the
impression that one person is the owner when in fact it is another
...
It would be unfair for someone's
title to be challenged if it has changed hands over the years
...

If the boundries of the property are unclear and a part of the land belonging to someone else is
included in the register
...
The rule is usually that the first to register gets the land, but what about
if that doesn't match the actual land? Like what if there is a fence? Prescription can fix this
...

Positive prescription prevents the need for both of these
...
Governs acquisition
through positive prescription
...


Land must be possessed
...


The possession must be founded on a recorded or registered title capable of constituting a real right
in the land
...
(on its face)
In the case of a registered title, the registered proprietor must not be aware of any forgery
...

For prescription to operate you must possess the land and the possession must be open, peaceable,
without judicial interruption and continuous for the last ten years
Possession is the physical occupation of the property with the intention to hold on one's own behalf
(Stair, Inst
...
2,1,13- possession requires two things- 1) you have to
control the property with critical occupation and 2) you must intend to hold the property on your
own behalf
...

Possession of land is different than possession of movable property in that it is impossible to have
control over all the land at all times
...

The Court will look at actions of the possessor which make it look like you own the property, as seen
in Bain v Carrick 1983 SLT 675- There was a physical boundary and the land inside that fence was
certainly possessed by the person claiming and the land outside the boundary was in dispute over
who possessed it
...

Possession Animo solo- Once the property has been acquired, possession can continue without
committing further physical acts
...

2) Loss of control- the ability to control the property is lost or you are restrained from returning
(imprisonment)
3) Loss of intention to possess- if you abandon the property, you cease to possess it
...
The level of openness required depends on the land and its level of use
...
Not
capable as it stood for much productive use
...
This was accepted
...
There
must be a right of ownership being asserted to the outside world
...


Stevenson-Hamilton's Exrs v McStay (No 2) 2001 SLT 694- Urban gapside- gap between two houses
...

Urban land- easier to get witnesses along so more is required than rural land
...

Judicial interruptionDefined in s
...

Includes both court proceedings and arbitration
...

Continuity of possessionNo need to exercise possession at all times – possession animo solo will be presumed, as long as
there is not too long a gap
...

Need for habile titleThe title must be capable of constituting the right in question
...

Suttie v Baird 1992 SLT 133- shape of area conveyed was different from ground- court was flexible
and allowed this
...
They then
conveyed their share of the land and how they prescribed they said that their several shares
...
One of the
owners said that they only had three 7ths share
...
Can mean anything up to and including
100% shares
...

There can be no prescription beyond a title
...
A to A prescription used to be a method of
prescription where you dispone to yourself but Aberdeen college disregarded this
...
The defender had come



along with an ex facie valid title, and so it was ruled in his favour and held that Watson could
not be the owner with an invalid title
...
- Taken in law as
someone signing with a false name, not signing your own signature on a disposition for
property that is not yours
...
(applies to long leases etc
...

Servitude’s and public right of wayS3 deals with this
...


Cutting prescription short
If the land is registered, under s86 of the Land Registration etc
...

This does not apply to property in the register of sasines
...
94 2012 act)
But if someone loses possession due to positive prescription, then they are not entitled to
compensation
...

Stair, Inst
...
Own
the ground below in theory all the way down and the air space above your land
...
The interdict was granted, as the Court held that the airspace did belong
to Brown, and that the intrusion on his property was wrongful
...
76- they have a defence as long as they
are conducting a reasonable manner of flying
...
g
...
)
Exception for “Separate tenements”- items of heritable property which can be owned separately
from the land of which it is a part of
...

Two types- Conventional and Legal
Conventional- separated by agreement- it is not automatically separated
...
g they can be
sold off or retained by seller when they sell the land itself
...
M then wanted to withdraw from the sale as he had believed that the minerals
were included in the sale, as there was nothing to state otherwise in the disposition
...
(included unless expressly excluded)
Legal- automatically separated from the land in law
...
McKendrick v Wilson 1970 SLT
(Sh Ct) 39- The pursuer bought a piece of land with a salmon fishing river on it
...
He took it to court stating he believed the sale included both
the land and the fishing rights, arguing primarily that he thought because the seller owned
both, they were both being included in the sale
...

(Excluded unless expressly included)

Tenement buildings



A tenement building is made up of a number of units which may be owned separately
...
26(1) separates buildings into a number of self contained
units and defines the boundaries of each sector
...
2 and 3): destinctions made between
Internal and external walls up until the mid point (outside wall you own all the way out)
Ground underneath (known as the solum) owner of the bottom unit directly above
...
– not usually owned individually
...

Adjacent ground – owner of the ground floor unit immediately adjacent
...
By default
...
On principle they can exclude everyone else from the property
because ownership is a real right
...

It is possible for a neighbour to have right of way over your land, but there are limitations
...


1) Trespassing
Private law liability for trespassing without right to be there or without permission
...
Technically action of assault is permitted if you can show reasonable force
was used, but this is not recommended
...

Wood v North British Railway Company (1899) 2 F 1- Establishes principle of self help
...
The owner of the station was happy
to allow the driver to drive into the station to drop people off
...
He picked up the passenger, but the station owner did
not permit him to collect passengers- he was only happy for them to be dropped off
...
The staff then physically pick up the driver, and carry him to the police
station
...
There are two points to be taken from this case; 1) it
demonstrated that you can use a reasonable amount of force to remove someone from your
property 2) You could be trespassing even if you were initially there with permission- permission can
be withdrawn if you attempt another act
...
Argument- when beyond
boundary, no longer using force to end the trespass as the act has finished
...
The court does not readily approve of the self help remedy
...
However unfair to pursuer to be put to full
proof of ownership if the defender has no stateable case
...

What title must the pursuer show?
Irvine v Robertson (1873) 11 M 298- pursuer had possession of an area of land on the sea shore- he
had right to access
...
The defenders could show know right to the land which allowed
them to trespass and the interdict was granted
...


Court held that the pursuer must also show a valid title (which in this case W could not) as well as
the defender
...

Colquhoun v Paton (1850) 21 D 996 at 1001- There was a dispute over the use of a pier
...
The defender broke the barrier to use the pier on a Sunday
...
Either defender has no apparent title or when both have apparent
title the pursuer must show in addition 7 years possession
...
If one had good title and the other doesn’t,
the one with the good title will be preferred
...

There was not enough proof for the pursuer to have the interdict granted, due to the discretionary
nature of the remedy (court does not have to grant an interdict) only when they decide it is
appropriate
...

Winans v Macrae (1885) 12 R 1051- Pursuer owned a 200,000 acre estate
...

Court refused the interdict as it was a stupid idea, and the lamb was allowed to wander and eat the
grass
...

Graham v Duke of Hamilton (1868) 6 M 965 – trespass gained financially by the trespass – no
damages payable as no damage is actually being caused to the land
...
This occurs when
someone builds something that goes over their boundary and encroaches on their neighbour’s
lands
...

Jack v Begg (1875) 3 R 35 – new building built in Edinburgh
...

N raised action to have it removed
...

Important point – lord lay principle – yes could order to be removed
...

In these cases, the court can award an equivalent – they can say upon what equitable conditions the
building can remain there although it has no legal right
...

Because done in good faith and it was disproportionate, court allowed to stay so long as the p can
use as a common gable wall
...
P petitioned for removal
...
Court

refused the removal on the grounds that it was hidden out of sight, so it would not affect enjoyment
of the property, and the fact that without the duct, the chip shop would need to be closed down
...

However if it is good faith, the court will weigh up the benefits for either party
...

Duke of Buccleugh v Edinburgh Magistrates (1865) 3 M 528- an arcade was built on the Dean’s land,
but its pillars encroached on the magistrate’s land by two feet
...

Can take action yourself but depends on extent and if it will harm the other party
...
Use of demolish etc
...

If can remove without harming rest, can do so
...

Recovery of possession- when someone takes your land from you, there are two options:
1) Recovery based on ownership- demonstrate the property is yours
...

2) Recovery by prior possession- until disputes are settled by the court, the current possessor
is the owner
...

Matheson v Stewart (1872) 10 M 704 – resolving disputes of entitlement
...
P sell part to D
...
Disputed area
...
Could be the case that was entitled but court to decide if
dispute
...

Common Interest- restriction by the rights of other people such as neighbours
Arises where "a single thing
...
355)- how the management of one section effects the other
sections
...
8) – subject to contrary provisions in the
title to the property
...
Do not have to show will actually but that it might
...
What you do with river, effect other areas
...
Each owner has a common interest in the whole river
...
Allowed to take water for domestic use but not anything that will alter flow
...
MacKenzie v Bankes
(1878) 5 R (HL) 192- entitles all owners to fish and sail on the whole loch
...

General restrictions on Owner’s rights
Restrictions on ownership
Restrictions arising from extent of right- e
...

Restrictions arising from the existence of subordinate real rights- other may have real rights, such as
a right of way across land- owner of the land is not entitled to interfere with this
...
g lease over the property- as long as the lease continues, the
owner is not entitled to use the property
...
g
...

Land Reform (Scotland) Act 2003 – public certain rights of access to most lands
Matrimonial Homes (Family Protection) (Scotland) Act 1981 – restrictions on the case of mh
...

Nuisance is an ongoing activity that causes disturbance to a neighbour to the extent that the
neighbour cannot reasonably be expected to tolerate it
...
wont grant interdict
2 – must cause a disturbance to a neighbour
...
Not enough just to show that there is a
disturbance
...

Kind depends on the circumstances
...
Eg keeping of pigs – n in city
but not in countryside
...
Will be noise from
other flats
...
H
held was a nuisance as there was a common air vent – damage caused to P prop by the discharge of
sulphur water due to the d storage heater
...


Webster v Lord Advocate 1984 SLT 13- Flat overlooking royal mile castle- annual Edinburgh tattoo
...
No defence
that she knew about the nuisance before she moved in
...
Defenders tried to say it would be less noisy if she closed the windows- held
this was not relevant either- not up to the victim of nuisance to mitigate it
...

Building work had to be restricted in its hours
...
They alleged that the damage was
caused by flooding following heavy rain fall which was caused by the collapse of a brick sewer which
was owned by the Council
...
The action was dismissed by the
court and was appealed to the Sheriff Principal, who allowed the pursuers a proof before answer
...
The appeal was successful and damages were not rewarded as there was no proof of fault
...

1) Can get damages if intentional harm is caused
2) A continuing disturbance does not need to be shown
3) Need to show intention to harm
Ritchie v Purdie (1833) 11 S 771- An interdict was sought to prevent a new doorway being built from
a flat to a common stair in a tenement building
...

Campbell v Muir 1908 SC 387- defender had salmon fishing rights and fished right in the middle of
the water to deliberately interfere with other owner’s rights
...

More v Boyle 1967 SLT (Sh Ct) 38- row of houses with water pipe running through gardens
...
Dispute about repair costs
...

Defender argued they were not liable because what they were doing was interrupting their use of
the water pipe so they didn't acquire a right to the water supply so they never achieved positive
prescription
...

Matrimonial Homes
Common law position: if matrimonial home owned by one spouse only, other spouse has no rights in
it
...

Changed by Matrimonial Homes (Family Protection) (Scotland) Act 1981: "non-entitled spouse"
given "occupancy rights" – married couples treated separately
...

Provides protection for spouses in this situation - distinguish between two spouses
...
– given occupancy rights
...
101-111

Importance for conveyancers: necessary to ensure seller's title not affected by occupancy rights
...
The rights in principle are enforceable against the enquirers of
the property
...

Nature of occupancy rights – specifically when one is sole owner and the other has none
...
1:
applies where only one spouse (the "entitled spouse") holds the title
the spouse without title is known as the "non-entitled spouse"
the Act gives the non-entitled spouse "occupancy rights"
Regulation of occupancy rights (ss
...
22):
“
...
”
Definition (1981 Act, s
...
any house, caravan, houseboat or other structure which has been provided or has been made
available by one or both of the spouses as, or has become, a family residence and includes any
garden or other ground or building attached to, and usually occupied with, or otherwise required for
the amenity or convenience of, the house, caravan, houseboat or other structure but does not
include a residence provided or made available by one spouse for that spouse to reside in, whether
with any child of the family or not, separately from the other spouse
...
22):
“
...
”

Restriction and ending of occupancy rights
Occupancy rights are rights of a spouse, so ended by end of marriage
...
Marriage ends occupancy rights end
...

The non-entitled spouse can consent to a dealing

The Act also provides protection to good faith acquirers – important – difficult balance in enacting
81 act – one hand protect non entitled spouses who would otherwise have no rights – but how
would be good to be defeated by a sale BUT on the other hand potential unfairness to acquirers
...

What is a dealing?
Occupancy rights can survive “dealings” (s
...

Occupancy rights of non entitled not effected by a sale of the property
...

Protecting the acquirer
1981 Act, s
...
6(3)(e)(i), inserted by Family Law (Scotland) Act 2006, s
...

Prescription
Occupancy rights are extinguished by negative prescription if (s
...

9A)
Occupancy rights are also extinguished if (s
...
5):
-

the spouses have not co-habited for two years; and
the non-entitled spouse has not occupied the house during that period

Dispensation by the court
Section 7 allows the court to dispense with consent where:
-

the spouse cannot be traced;
the spouse is incapax; or
the spouse has unreasonably withheld consent

In these situations – court dispense – transaction go ahead without the consent from the non
entitled When is it unreasonable to withhold consent? – to show this – have to show that the none entitled
had no proper basic to be unreasonable
...

Unusual case – both spouses owned houses – she owned a house in Edinburgh – couples main
residence – in addition there was a house in Dundee solely owned by the husband,
Husband want to sell house in Dundee – at time separated – wife refuse consent
Court said not reasonable as she has alternative accomm and no interest to occupy house in Dundee
– only stayed there a handful of times
Withholding consent as a bargaining procedure for divorce procedures
...

The court may dispense with consent in advance of negotiations with a purchaser, subject to a
minimum price and a deadline for concluding the contract (s
...
What steps do you need to take to protect your client –
important - don’t want situation where the buyer can suffer a non entitled spouse – likely liable for
failing to protect client
...
May be
as it is not a home at all – eg commercial building – or by someone who cant be married eg a
company
...

If co owned by both spouses, don’t need to worry as neither can have a non entitled spouse –
If dealing with a single owner of a house – can be subject to occupancy rights
...
g
...
6(1A),
6(3)(e) and 1(7))
Also does not cover previous spouses of a past owner

Servitudes
A servitude is a burden on land or houses, whereby the owner of the burdened property must
submit to certain uses to be exercised by the owner of the other dominant property
...
This could take several forms, such as a right of way
...
344)
Recognised servitudesList in Section 76 Title Conditions (Scotland) Act 2003 this is not a complete fixed list, as the court
have shown they can be flexible
...

S 76 – says that there is no fixed list as long as you use it in writing – no fixed for ser created in
writing
...
77) – expressively allows any kind of pipe line carrying anything – eg gas or
phone line over neighbours land
...
Right to park vehicles on neighbours
land – wasn’t done in writing - deed just said right of way from public road- assumed here that
means right of access by vehicle
...
The only way to get to the property was to park on the burdened propertywhether servitude access could carry right to park on burdened property
...

Overhang (Compugraphics International Ltd v Nikolic 2011 SLT 955) – building built right up to the
boundary of neighbours land – ducks attacked outside wall – overhung land – held servitude right to
do this even though it was not in writing
...

 Burdens on contract only binds the two parties that agree upon it , but servitude’s run with
the land and pass to new owners
...
Does not require any form of transmission- no requirement
for transfer to be in writing or anything
...

Braid Hills Hotel Co Ltd v Manuels 1909 SC 120- There was no mention of the servitude in the
disposition, but they still became the benefitted proprietor
...

Must be exercise for benefit of the property- not to benefit any other property you may also
own
Irvine Knitters Ltd v North Ayrshire Co-operative Society Ltd 1978 SC 109 – bought land on
either side of their building and expanded but benefitted proprietor said ok to use land to
stock shop in the middle, but not the other sides of the buildings as not part of the ben
...
Right of access is to a specific prop and not to any other land
that they may happen to own
...

If land is split, will new owners benefit from servitude?- Keith v Texaco Ltd 1977 SLT (Lands
Tr) 16 – servitude right of access in favour of the owner of a house – had attached a large
amount of rough land – servitude granted to serve one house
...
Property




Q – do the other houses get servitude benefit- CANNOT INCREASE BURDEN SUBSTANTIALLY
Dividing the land won’t necessarily always increase the burden- Alba Homes Ltd v Duell 1993
SLT (Sh Ct) 49- one house subdivided into 2 houses- doesn’t necc increase burden – would
have to show evidence that there is an increase as may not have a car etc
...


The burdened proprietor Doesn’t have to do anything- the burden is only on the land
...

 Allan v MacLachlan (1900) 2 F 699 – not compelled to maintain the road
 Can use their property however they like but they are not entitled to interfere with the
servitude
...
The servitude involved one of access but problem –
benefitting property on shore so not accessible by car – had to park on the burdens property
– dispute whether carry with it the right to park – Held – interpreted in accordance of
circumstances when created – q is ancillary right – reasonably necessary for enjoyment of
servitude and 2) would be anticipated at time of creation- allowed as ownership would not
be feasible without being able to park near the house
...

 Special provisions set out in section 90 Land registration etc
...
–
(3) The conditions are that—
(a) the land has been in the possession of A, openly, peaceably and without judicial
interruption, for a continuous period of at least 1 year,
(b) at no time during that period did the Keeper become aware that the register was
inaccurate as a result of A not being the proprietor,
(c) the proprietor of what is to be the benefited property is in good faith,
(d) at no time during the period mentioned in paragraph (a) was the title sheet subject, by
virtue of section 67, to a caveat relevant to the creation of the servitude, and
(e) the Keeper warrants (or is to be taken to warrant) A's title
...
Facts- Dispute of





pipes for sewage by a purchaser of land that had been sold off- held it was necessary for
enjoyment and therefore could be implied
...

Implied reservation on severance of property- there is some doubt as to whether the same
rule applies
...
Water supply ran under property
...
The owners of the house said
they had no right to use the pipe so they cut it off
...
Sheriff disagreed because by selling the house they never mentioned
servitude's
...


Creation by prescription





Section 3 of the Prescription and limitations (Scotland) Act 1973- 20 years of use adverse to
the burdened property for servitude’s
...

Aberdeen City Council v Wanchoo 2008 SLT 106- access taken over council land and council
said they didn't mind
...
- The right you get is only the right you have exercised during prescription
...


Acquiescence







Implied consent, whereby the owner took no action whilst the use of their property was
taking place
...

Cowan v Lord Kinnaird (1865) 4 M 23-claim servitudes
...
New owner didn't find out
about it for several years
...
- has to be obvious or successors bill not be bound
...
8 Prescription and
Limitation (Scotland) Act 1973)
Confusio- when the same person becomes owner of both the benefitted and the burdened
properties
...
Governed by the Title Conditions (Scotland) act 2003 s1
...
”
2003 Act, s
...

Main types: neighbour burdens and community burdens
Neighbour burdens – two areas of land – one benefit and one burdened
...

You as a neighbour enforce the burden as the owner of your land- usually occurs when land is sold
off into pieces
...

Used most commonly when a plot of land is sold off from a larger area
...

Example- a housing development- almost all properties are effected by some type of burden
...

Usual way is through deed of conditions- imposes a real burden
...

They are usually imposed on a development either in a deed of conditions before any units are sold
off, or in the disposition of each unit when it is sold off (not as common due to technical difficulties
...
(2003 act section 2(1))- there is an exception for ancillary burdens in section 2(3) as
they might have the right to enter or make use of a property to allow use of their own property
...
g, if the person who owned the top floor flat had the obligation to maintain the roof, and they
needed to put a ladder up on the surrounding property to do so, this would be an ancillary right and
it would be excluded from the rule regarding the requirement for affirmative or negative burdens
...
Sections 34 give definition (has to benefit community as a whole)
...
They imposed a burden limiting what types of plays
could be put on
...

Burden was terminated in this case
...
Burdened property was commercial development whilst benefited
property was an office block next door
...
It was argued it was for commercial gain, but court held this burden
to be reasonable
...

Therefore, what is done in one property will not affect another if there is a significant distance
between them, however when both properties are next to each other, the purpose for the burden is
to protect the benefited property
...

Illegality- burdens cannot be illegal- s
...

Unreasonable restraint of trade (s3(6))- Under s3(7) there can be no monopolies- cannot have a
burden that provides for a single service provider
...

Question whether the restraint on trade is unreasonable as this restraint is common
If it is unreasonable – there is a 2 stage test
1)
look at whether reasonable between the parties
2)
consistent with the public interest
...

2 – on the face of it it restricts but actually on the facts, why imposed? – reason is because this was
the price of the coop of the neighbours
...

Held – so in fact, if it had not been for burden, development wouldn’t be possible at all
...

Competition act 1998 s
...
1 applies to real burdens when they restrain trade
...

Repugnancy with ownership- Under 3
...

Moir's Trs v McEwan (1880) 7 R 1141 at 1145, per Lord Young – cannot make a man a proprietor
but yet prohibit him from ownership
...

Negative burdens are more likely to be accepted by the court because restriction of one allows for
the liberty to do other things
...
Held – cannot have burden that prohibit of co owners of the land to
dispose of their share or have divided between the owners
...


Rules on form and drafting that all burdens must take
1) Must use the term “Real burden” or the name of a specific burden such as a community
burden
...

3) Must contain all terms of the burden within the deed itself- it is not permissible to have
people search outside of the deed to find the terms of the burden
...

Aberdeen Varieties Ltd v James F Donald (Aberdeen Cinemas) Ltd 1939 SC 788 – Theatre also failed
for another reason – how the restriction was identified
...
(could not tell by looking at deed at
what was prohibited) – needs to be stated within the 4 corners of the deed
...
It was impossible to know what was
occupied as a lawn 50 years ago, so the burden was not upheld- if you want to say something like
that, you should include a plan or some other method of easily identifying the property
...
Often burdens in
tenement deeds allocate maintenance costs
...
4(5)) – addition to having to ID the benefited property etc
...
Why you use the deed of conditions – only need to then
to register one
...
4(1)) – unless the deed postpone to a later
date
...
7) – rare
...
6(3)) – a share of common prop cannot be a burdened
property
...
8(1)- “A real burden is enforceable by any person who has both title (the right to enforce
burden) and interest to enforce it”
Who has title to enforce?- Section 8(2)
1) owner of benefited property
2) tenant of benefited property
3) proper liferenter of benefited property

4) non-entitled spouse of owner under Matrimonial Homes (Family Protection) (Scotland) Act
1981
Division of benefited property? (2003 Act, s
...

Variant of rule for community burdens – appointment of manager (2003 Act, s
...

Identifying the benefited propertyProcess of identification of the benefited property depends on when the burden was created
...

2) Pre-2003 Act burdens – the register is full of burdens before the 03 act – sometimes did id
benefited property but didn’t usually
...

Post 2003 burdens- It is necessary to identify both the benefited and burdened properties- s
...

Implied enforcement rights (2003 Act, ss
...

Need to mention both 52 and 54
...

How to find out what the ben property is
...
Rules for different
kinds of burdens
...
49,
50) (if one – the NB – 03 act – says these are abolished unless expressed rights or bP reserved a
notice as id the ben prop – in order to do that had 10 yrs expired in Nov 2014
...

Community schemes before 2003-

States this is how identify the ben property
...
52 – duplicates the common law rules before 2003 act - mutual enforcement rights
where:
1 - burdens imposed under a common scheme effecting 2 or more properties, and
2 - existence of common scheme express or implied in constitutive deed creating the burden , and
(done 1 – created in the deed of conditions that imply there is a common scheme or 2 – for when
developer to say in each dispos
...

If all identical and at the same time –then ok
What it is about –single overall plan for a single development
...
Can be explained still as a single overall plan
...

In 1873 – sold off an area of land at the corner of these two roads subject to the burden of a req of
the building of a specific number of dwelling houses
...
Building on corner will be diff
specif – any differences do need to be explicable on a clear overall plan
...

Differences not capable of being explained
...
These are two sep ways in which you have
enforceable community burdens
...
Success in 53 which allows if there is a common scheme
and the properties are related properties
...
53 - mutual enforcement rights where:
-

burdens imposed under a common scheme
on related properties

What are "related properties"?
Eg common features, shared ownership, or flats in the same tenement building
...
122
...

Eg a roof of a tenement building
...


Service burden - real burden relating "to the provision of services to land other than the burdened
property"
Eg an obligation to provide a water supply
...
56)
READ OVER

Interest to enforce under s8(3)aWhilst title is about showing you are the owner, interest is showing why you should be entitled to
enforce the burden
...

Concern of community of 5 houses in rural area of st Andrews
...
Domestic use for one family
Began using one house as a B&B – breach – not use as a private dwelling house – no disputed
Neighbours sue – in breach of burden – want interdict to prevent from happening in future
...

Clarke v Grantham 2009 GWD 38-645 – two houses with courtyard between them – divided
between the two houses
...

Held – non enforceable and there was no interest as the neighbour suffered no detriment
...

Housing development – each house subject to a burden – no residential use except for one family
...
With adults with learning diff
...
Work in shifts
...

Defenders accepted proposal breach of burden – argued no interest to enforce burden
Sheriff disagreed – 1 – the sheriff said not material detriment having the adults there but there was
on 2 grounds
1 – this is, with careers, rep increase of traffic – is MD to the value and enjoyment to the other
houses and
2 – neighbours able to show in other places where defenders were, decreased the value of the
houses for 5-15% - put people off buying the property
...

Does suggest if provided evidence to value of property, then chance of success can better
...

Liability-

Negative burdens (9
...

Affirmative burdens (9
...

Joint and several liability in affirmative burdens (10)- Where burdened property is divided all of the
property remains burdened unless the burden specifically relates to one part of the property such as
the garden
...

S 33 + 35
Express consentMinute of waiver- may be a variation or discharge- must be in formal writing
...

Sections 33 and 35 are completely separate- cannot use both at the same time
...
33 – intended to provide a more convenient
procedure
...
So have to send to all non consenting form – schedule 4 of act – each
have 8 weeks to object by applying to the lands tribunal - need to show cause why the burden
should be maintained
...

Effect will be discharge the burden as appropriate
...
34
Registration procedures – 2003 Act, s
...

Community burdens 2Variation or discharge by neighbours- 2003 act 35- variation by immediate neighbours- adjacent,
within 4 metres typically and measured horizontally
...
Or excluded by the deed creating the real burden
...
It is not necessary to send
everyone a notice, you can use the lamp post rule instead
...
, or




where these are not possible, advertising in a newspaper – if no LP – circling in the area
effected
...


The “Sunset Rule”
If the property has a time limit on it such as 100 years, then the burden will be automatically
extinguished after this period
...

2003 act s20-24
Applies to burdens older than 100 years
...

Intimation to benefited proprietors
...
16) – suppose RB prohibiting any building on the property
...

So even though has RB – build anyway – in breach – in principle entitled to have it removed
...
In the breach the burden will be extinguished to the extent of the breach
...

2)
Enforcement of burden force to lose benefit of the expenditure
...
91) –
the burden extinguished unless the BP knew about it
...
18) – the loss of rights after the passage of time
...
To the
extent of the breach
...
106 and 107) – acquired by public body – any burdens ext
...
19)
The Lands Tribunal- Benefited P to apply for burden to be retainedCan also ask for burden to be discharged1) If you can’t get the majority
2) One neighbour within 4 metres objects
3) Burden is not in your control
Variation and discharge by Land Tribunal is covered by part 9 of act- also covers servitudes
...


Notice must be given by the land tribunal themselves to anyone they see fit
...
93

What they will consider:
2003 Act, s
...

Allowed because – changes in circumstances (others in the area) and the impact on the bp will be
minimum so allowed
...

Jensen v Tyler 2008 SLT (Lands Tr) 39 – allowed variation of routes in servitude of right of access as
it would not affect the BP in a detrimental manner
...
It was allowed, as it had not been used as a church in 1957, and it was not likely to be used
as one again, as there were other churches in the area and substantial costs would be occurred
undergoing the significant alterations
...
of
specific route
...
Building – apply to allow building
which was allowed
...

McClumpha v Bradie- lands tribunal 2009 LTS/TC/2007/34- Varied plots and rent
...
B was original developer
...
No immediate neighbours objected
...


Compensation is payable on two grounds1) where discharge results in significant loss to benefited proprietor
2) where burden had effect of reducing consideration payable at the time of the creation
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 59 – damages claimed in respect to
building works
...
also it was
inconvenient from time to time and could not constitute substantial loss
...
Three categoriesPublic rights over water Tricky as water moves around, the shoreline doesn’t stay in the same place etc
...

 People should have the right to roam and private areas should not be fully excluded
...

 It doesn’t matter why you are there, whether for educational or recreational purposes
...

Two types of exclusions1) S9 list- excluded conduct (hunting, shooting, fishing etc
...
5(3))
General public right of access- section 1
- Excluded conduct (s
...

Exercisable over land generally
...
6)- various restrictions such as buildings, school playgrounds, owners of
houses etc
...
She had fenced off a bit of land around the castle for privacy
...
They used the reasonable objective
test and decided to rule in her favour
...
2- depends on circumstances and reasonable man test
...


Tuley v Highland Council 2009 SC 456- T owned part of woodland area
...
One path was deemed unsuitable for heavy use by horses, so he
put up a gate to stop this but it was still suitable for light use
...

Forbes v Fife Council 2009 SLT (Sh Ct) 71- there was a housing development near Fife which had a
path owned in common by all of the owners of the houses
...
One owner suggested they put up a gate out of fear for anti-social behaviour
...

Access code prepared by Scottish natural heritage under section 10
...

Right of passage held by public at large- can be created voluntarily but mostly acquired through
prescription
...
3
...

Requirements- Fixed route- Rhins District Committee v Cuninghame 1917 2 SLT 169 – doesn’t have to visible
on the ground but has to be a definite path
...

- Must be between two public places that 1) public have the right to be at and 2) public
habitation or resort, such as a road
Love-Lee v Cameron 1991 SCLR 61- post office in private house (failed 1st ground)
Duncan v Lees (1870) 9 M 274 – rock formation near st Andrews
...
On
foreshore so right to be
...
So there was no habitation and
resort – have to do something there
...

Court pointed out owners did nothing at all to indicate that the use was by tolerance – inference
that the use was as a right - so should also need to show objections
...

Question of whether bicycle counted as use of vehicle
...
Own power to use aids to pedestrianism so does
not count as vehicles
...
Land Reform (Scotland) Act 2003 section 14
...

Foreshore- navigation when tide is in, “white fishing” (not salmon), recreation (not clear on what
counts, but walking and riding is fine)
...

Tidal waters- navigation and white fishing
...

Wills' Trs v Cairngorm Canoeing and Sailing School Ltd 1976 SC (HL) 30- dispute over use for canoe
...

What is navigation?- if you can show the right has been acquired, then it is not restricted to
particular use
...

Can be made difficult due to ancillary activities, but as long as it does not affect the water it covers
then it should be fine
...


Leases
Nature of a lease
A lease is a form of contract which grants real and personal rights for the right of the land for a
specified period in exchange for payment of rent
...

But a lease in certain circumstances can be turned into a real right
...

Within these categories there are some provisions under statute
...

Form- must be in writing if it is for more than one year- Requirements of writing (Scotland) Act 1995
s
...

S
...


Requirements for content1)
2)
3)
4)

Parties (landlord and tenant)
Subject
Rent
Duration

Parties
Landlord and tenant
1) Landlord must have legal right to grant lease (cannot give someone a right you do not have)
...
Tenant can only grant this when they have express or
implied permission from the land lord to do this
...
3,
standard condition 10(4))
2) Land lord and tenant must be two different people- you cannot owe rent to yourself
...
They granted the lease to one of themselves,
and it was held by the court it was not a valid lease as the tenant was also one of the landlords
...
Owners to agree by
contract arrangement of occupation of the land but cannot create contract which is binding
...
In theory the company was a separate person, but it
was only holding the property as a nominee of the landlord for tax purposes
...
(it was sham) The court
are prepared to look behind supposed reason for the lease
...
The court said that although the lease was void with regard
to the landlord itself
...

Dickson v MacGregor 1992 SLT (Land Ct) 83- Questionable- Limited partnership- partner
played no part in the management of the firm and has no liability in debts
...

Instead of giving notice at end of lease, they can instead just give notice terminating the
partnership and subsequently the lease
...


Subjects

Must be heritable property and identifiable
...

Also held that subjects did nt have to stay the same throughout the lease
...


Conway v Glasgow City Council 1999 SCLR 248- No lease where Conway was put into shared room in
a homeless hostel (not exclusive)
...

Mann v Houston 1957 SLT 89 – Only payment made was lump sum made at beginning of
occupation- no valid lease
...
Issues arise with service occupancies
...
Temporary employee was offered permanent employment and
said he would only accept if accommodation was provided for him
...

What if rent is omitted? - Shetland v BP parties agreed on subject and duration (20 years) but
not rent- court could not fix rent for long lease, but could for a year long lease
...

Scottish Residential Estates v Henderson 1991 SLT 490-Grant of a lease indefinitely until the owner
needed it
...

The omission of a duration may not be fatal to the lease where the other three requirements are metcourt will apply one year duration where the parties intend there to be a duration but just
cannot agree upon it
...

No lease longer than 175
...

Long leases Scotland act 2012 s
...

Acquisition of a real right



How you get real rights depends on the duration of the lease
...





Millar v MacRobbie- Tenant took possession of property after lease granted but before the
date of entry the owner sold the land
...

Long leases- real right on registration regardless of entry date
...

Parties can contract out of agreement being a lease- state it’s a licence
...

Brador Properties Ltd v British Telecommunications plc 1992 SC 12- sub lease entered into
by tenant
...
Wording will not be
used necessarily
...

–

–

Obligation does not go beyond just being in possession- with a shop there is no
obligation to open as a shop unless expressly stated as an obligation in the lease
...


Whitelaw v Fulton (1871) 10 M 27- Tenant for shop is not required to open up as a
shop unless specifically mentioned in the lease- keep open clause
...


Obligation to take reasonable care of the property
–
–

•

Mickel v M’Coard 1913 SC 896-Left house empty during winter without turning off the
water or telling the land lord
...
- plenishing order
...


•

Obligation not to derogate from the grant- cannot disturb possession
–

–

•

Huber v Ross 1912 SC 898- top flat let, landlord carried structural operations to lower
flats causing damage to the flat
...
Landlord was liable to pay for the structural damage
caused and also the damage caused to the tenant’s furniture
...
Because of this, commercial leases usually contain a clause preventing
this
...
Different for
non standard use
...


Tenant’s negligence
–

•

Allan v Robertson’s Trustees (1891) 18 R 932- House was rendered uninhabitable
when land subsided because third parties were mining minerals- landlord not liable

Lack of notification
–

•

Little Cumbrae Estate Ltd v Island of Little Cumbrae Ltd 2007 SC 525

Hardie v Black (1768) Mor 10133- damage caused by fire as result of inappropriate
furnace installed by tenant
...
Landlord was

not liable- T could remain in house (acquiescence) or give notice to L to have the
defects remedied then leave the house after reasonable time has expired
...


Landlord does not guarantee property will remain in suitable condition- only that it will be repaired if
it is not in suitable condition
...
Holder of
right over incorporeal property transfers that right to someone else
...

•

Assignation means transfer by tenant of interest in lease to another person (the assignee)

•

Process:
–

to obtain personal right against landlord – intimation- informing the land lord
...


•

Tenant needs to actually hold a lease- slight exception for non-tenants
...
88)- where someone has registered as tenant but does not hold a valid
lease, assignation will be valid as long as the assigning tenant has been in possession for a
year, openly, peaceably, continuously and is in good faith
...
It is difficult if the lease
says nothing

•

If the lease provides that consent is required or that it is not required, that will be decisive

•

If the lease is silent, the answer will depend on whether there is an element of delectus
personae (choice of person)- where the tenant has been chosen for particular characteristics,
the the lease cannot be assigned without landlords consent
–

Scottish Ministers v Trustees of the Drummond Trust 2001 SLT 665 at 668- lease of
land for forestry purposes (forestry commission) Held no DP:

–

1) not agricultural lease (more personal)

–
–
•

2) use clause limits use to forestry- since tenant was forestry commission, this clause
would be unnecessary unless the tenant might change
3) Long term lease (99 years) The longer the lease, the less likely DP is
...


•

Difficult to generalise when landlord is entitled to withhold consent

•

Giving of reasons

•

Collateral benefits
–

Lousada & Co v JE Lesser (Properties) Ltd 1990 SLT 823- Held landlords were not acting
unreasonably when withholding consent condition on conducting annual rent reviews

–

Renfrew District Council v AB Leisure (Renfrew) Ltd (in liquidation) 1988 SLT 635- Held
to be reasonable to require payment of arrears of rent as a condition to obtaining
consent-

–

Scottish Tourist Board v Deanpark Ltd 1998 SLT 1121- not allowed to demand payment
of premium- cannot give consent on condition of adding new things to the lease
agreement
...


•

Liability for Rent

•

Assignee takes place of cedent (original tenant) and so has to pay all rent and fulfil all
obligations under lease
...

– Burns v Martin (1887) 14 R (HL) 20- It is possible to have express provision in leas
making original tenant liable for rent also
...


•

However, this does not apply where the condition is not inter naturalia of a lease- where it is
fundamental to the landlord tenant relationship
...


–

Advice Centre for Mortgages Ltd v McNicoll 2006 SLT 591- term held not inter
naturalia- option given to tenant to purchase the property- term does not transmitoption to purchase property is a different relationship from the land lord tenant
relationship
...
In sublease, the original tenant
remains the tenant and is still fully obliged to the landlord but acquires a tenant of their own- can
have a chain of tenants and sub-tenants
...
, 1916), p
...

No direct relationship between Landlord and sub tenant

Terms of head lease can only be enforced against sub-tenant if expressly incorporated into
sub-lease
–

Fergusson v Brown (1902) 9 SLT 341- head lease contained restrictions on sale of
spirits which was not in the sub lease
...


Termination
Premature termination
•

A lease is a contract, and so each party is bound unless the other consents- not just a matter
of rights to the land, there are obligations- noth parties are bound unless the other arty
consents
–

Salaried Staff London Loan Co Ltd v Swears and Wells Ltd 1985 SLT 326- lease of 35
years
...
Court said that the land lord had two options- 1) accept
repudiation and agree contract was at end- sue for damages 2)they could sue for
implementation of the lease
...


–

Landlord is entitled to hold tenant to their end of the contract
...


–

In commercial contracts there may be a break clause
...
g
...
g
...


•

Crieff Highland Gathering v Perth and Kinross Council 2011 SLT 992- Lease of sports ground
...
This was not a
material breach because it did not effect use of the subjects and they agreed to put it right
...


•

frustration

•

Duff v Fleming (1870) 8 M 769- damage to building- was contract frustrated?- test is
whether without rebuilding the subject was suitable for the prupose for which it was letminor damage does not lead to frustration
...


•

Howgate Shopping Centre Ltd v Catercraft Services Ltd 2004 SLT 231- there was a lease of
shopping centre and court upheld idea that of the owner and the tenant become the same
person, it is terminated
...


Irritancy
•

A landlord may also be able to bring the lease to a premature end through "irritancy",
meaning forfeiture of the lease
...

–

contained in contract- must be careful how it is worded
...


effect of payment of rent after irritancy proceedings begun?- generally irritancy
cannot be stopped by payment once it is begun, unless landlord agrees
...
Here,
some payments were made by oversight in bank transfer and other were
rejected- no intention shown to continue lease- irritancy allowed
...
4-7

•

Tenant has no right to property after irritancy
...
2,6,35)

•

If no notice is given then it is presumed the parties intend to continue the lease
...
Can also be rebutted on facts
...


Notice to quit
•

Common law period 40 days
–
–

Statutorily defined as 28th of May and 28th June

–
•

Erskine, Inst
...
21)

–

Land exceeding 2 acres: 1-2 years, unless the lease is for less than 3 years, in which
case the notice period is 6 months (Sheriff Courts (Scotland) Act 1907, s
...

38; Rent (Scotland) Act 1984, s

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