Property 1 Cases

Wallace v Simmers

A allowed B to use cottage (personal right). A then sold the cottage to C. The court upheld the classic view of contract law, the offside goals rule did not apply because B's personal right was just an ordinary personal right, whereas in Rodger (Buildings) Ltd v Fawdry it was a personal right to a real right, i.e. a personal right capable of being made real.

Gibson v Royal Bank of Scotland Plc

Authority for the idea that an option can be breached and it does satisfy the offside goals rule. Opposite to the advice Centre for Mortgages Ltd v McNicoll.

Lothian & Border Farmers Ltd v McCutcheon

Claim made for breach of warrandice due to a short lease being attached to the property. Held - No breach of warrandice. This case is authority for the fact that LEASES are not covered by WARRANDICE.

Advice Centre for Mortgages Ltd v McNicoll

Concerns a lease with an option to buy land from A. A then transferred the property to C, who was in bad faith. Held - An option does not prevent A from transferring the property. There was, therefore, no breach so offside goals could not operate.

Parker v British Airways Board

Container case no.1 Establishes the rule that you have to be in full control of the the container in order for the doctrine to work. Here it was a question of whether jewellery in Heathrow Airport could be said to be in the possession of the British Airways Board as they were had general control of the airport. Held - No. They were not in complete control.

Harris v Abbey National Plc

Container case no.2 Here, Harris was in possession of a house and it was held that they were therefore in possession of something that was within a locked cupboard. Held - as cupboard was in their complete control, the contents were in their possession also.

Sloan's Dairies v Glasgow Corporation

Default rule that risk passes on the conclusion of missives. But almost always there is a provision in the missives saying that risk passes on the date of entry.

Carmichael v Simpson

Entrance Hallway is common property. This case hinged on what the ordinary use of the hallway was. Held - entrance hallway was for the purpose of people coming and going and as such it was not permissible for someone to use it to park their wheelchair.

Hamilton v McIntosh Donald Ltd

Establishes fairly low quality of possession. Farmland where claimants had allowed people to shoot and dump waste on the land. This was held to be sufficient for possession.

National Employers Mutual General Insurance Assoc Ltd v Jones

Establishes that where the seller is in the process of buying goods from the owner, and has possession but not ownership, he can pass a good title to a bona fide third party.

Rodger (Buildings) Ltd v Fawdry

Establishes the narrow rule that the grant of a real right is voidable if: - the grant is in breach of the terms of an obligation binding on the granter. - and the obligation must pre-date any right to the grant personal or real in the grantee.

Burnett's Trs v Grainger

Establishes the rule of 'Prior Tempore Potior Jure'. Therefore is A transfers property to both B and C, then whoever registers that right first is the winner. There are exceptions, but this is the general rule.

Whyte v Lee

Establishes the rule that the seller guarantees a good title and guarantees that there are no encumbrances, other than those which are very trivial.

Burnett's Trs v Grainger

Failure of solicitors to register a disposition timeously, and the seller subsequently became bankrupt. In Sharp v Thomson the purchaser was nevertheless held to be the owner even without registration. But here the trustee in sequestration became the owner of the house, the purchaser lost the house and was instead held to have a claim against the solicitors for negligence.

Clark v Lindale Homes Ltd

For warranties with no title, eviction is required before the claim can be made. For warranties with an encumbered title, then eviction is not required.

Rafique v Amin

Joint property. For alterations or repairs consent of all owners is required, but personal bar may operate if other co-owners knew and chose to do nothing.

Brewster and Sons v Caughey

Knowledge matters at the time you have registered. That is the relevant date!

Scottish Widow's Fund v Buist

Leading Case. Person lied about health regarding life insurance contract. They subsequently assigned the contract to someone else. The fact that it was assigned made no difference. However, the law imposes a cut off point - the date of intimation.

Price v Watson

One co-owner took up exclusive possession while other co-owner took up an action to have him ejected from the property. Held - ejection was not the appropriate remedy as the co-owner had the right to be in the property, just not the exclusive right.

Menzies v MacDonald

Owner of a 50% share divided his off and sold it off to many others and then they all proceeded to exercise their rights. HL - said that you are allowed to this without limits. Even ludicrous divisions remain within the boundaries of the law. Held, however - someone who owns cannot also have a subordinate real right in the property that is his.

Parishioners of Aberscheder v Parish of Gemrie

Positive Prescription. Church bell loaned from one to another. Held - in order for positive prescription you need to believe that you are the owner. As he knew that it was a loan, he was, therefore, not in a frame of mind in which positive prescription could occur.

Houston v Barr

Possession must be based on the foundation writ and therefore adverse to any other claiming the land such as the original owner. Here, the person had a lease, the tenant was attributable to the lease but not the foundation writ, therefore it did not amount to possession.

Alex Lawrie Factors Ltd v Mitchell Engineering Ltd

Question of whether an assignee can end up with an assignation which is a liability. Held - that there cannot be liabilities, you cannot assign liabilities, you can only assign your rights.

Craufurd v Royal Bank

Rule that money is simply transferred by delivery. Therefore, if money is given without a title then it doesn't matter so long as the person receiving it is in good faith.

Trade Development Bank v Warriner & Mason (Scotland) Ltd

SS granted to TDB and a lease granted to a Third Party C. Warriner granted the lease without TDB's consent, thus breached SS condition 6, and the tenant, C, knew of this breach. Wallace v Simmers implied that this would not be sufficient for the offside goals rule, but this case extended it to include rights which are not only capable of being made real, but those rights which are already real, as was the case with the SS.

Bailey's Exrs v Upper Crathes Fishing Ltd

Salmon fishing case. In this case the right to fish in a particular stretch of a river was held as common property. Therefore, when one of the co-owners tried to time share their rights an interdict was awarded from the court. Time sharing was a perpetual right and the co-owner in question only had the right to fish on alternate weeks for a year.

Gemmell v BoS

Spuilzie case SS granted, house owner unable to keep up the mortgage payments and was subsequently ejected from the house. The owner here had left behind all of his movable property which have since disappeared. So he raises an action of spuilzie. Held - as the Bank was acting under a court order it meant that there was no spuilzie and the action failed.

Wallace v University Court of St. Andrews And Lovelee v Cameron

The HOOVER ANALOGY. In these two cases two fields were sold, but the granter remained in possession of one of them. As such, after 15 years he became the owner of it.

Bailey's Exrs v Upper Crathes Fishing Ltd

The right to division and sale doesn't apply to things of common and indispensible use. Classic example would be that the common stairwell cannot be divided.

Welsh v Russell

There was a servitude of access they didn't know about because servitudes aren't on the register. Held - material, the triviality standard has to be very high - it must be very trivial indeed in order for it to be allowable. The ONLY REMEDY for a claim in WARRANDICE is DAMAGES!

Sharp v Thomson

This has been marginalised - confined to its facts. This case concerned a brother and sister who concluded missives to buy a house, but they failed to get a disposition. The seller went into receivership and a floating charge attached. Held - that delivery of the disposition, even without registration did in a sense make the purchaser the owner.

Black v Duncan

Two separate houses shared a back green. Held - the ordinary use of a back green was not for having dogs run around and use the toilet. Therefore an interdict was successful here.