Property

Strathclyde Regional Council v Persimmon Homes (Scotland) Ltd

Builders built a housing estate and applied to council for road consent, planning permission. Council then replied that the roads would be on their property, and asked for money raising an action for damages. No action for removal, just damages. Court allowed this.

Gloag v Perth and Kinross Council

Businesswoman obtained declarator that 14.5 acres of her estate at a castle in Perthshire were exempt from public access rights, by reason to protect her privacy. s6(1)(b)(iv) Land Reform (S) Act 2003.

Lothian and Border Farmers Ltd v McCutcheon

Buyer found out the property was leased, went to sue under warrandice. The Outer House ruled that the existence of a lease was not a material encumbrance, as a lease is an ordinary way of using property and since the tenant was still paying rent the buyer was still getting the value out of the property.

Advice Centre for Mortgages v McNicoll

CSOH Davidson v Zani case is wrong. There is no breach of obligation where the option to buy is not followed.

Irvine Knitters Ltd v North Ayrshire Co-Operative Society Ltd

Co-op was a building that straddled two plots. Plot 1 was the benefited property in a servitude right giving access along a lane to the rear of the building. Front was a busy high street. Plot 2 was not part of the benefited property. Burdened proprietors sought to interdict the co-op for using the access to bring in goods to plot 2. They succeeded. Only the benefited property can take benefit. Lord President Emslie '[T]hey [the benefited owners] may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non-dominant subjects.'

International Banking Corporation v Ferguson Shaw and Sons

Cotton seed oil manufactured into lard. Held to be a new thing, lard is different in kind from oil.

MacDonald's Trustees v Cunningham

Court held the landlord had not waived the right to irritate and had only accepted rent as a pre-condition of assignation of the lease.

Neill v Scobbie

Court unwilling to extend the list of servitudes to admit a servitude for overhead electricity cables.

Compugraphics International Ltd v Nikolic

Courts accepted a servitude of projection whereby part of a building may overhang into a neighbouring landowner's airspace. Air conditioning in an industrial building mean a pipe was hanging over neighbouring land. Court confirmed that Scots law recognises servitude rights of both projection and support. Property that has become heritable by accession cannot be made into separate tenements.

Barker v Lewis

Deed of conditions required houses to be used as domestic dweling houses by one family only, no other purpose whatsoever. Homeowner began to run B&B which disturbed neighbouring householders. There were approx 250 visitors a year, more increased noise, traffic, loss of privacy and taste. Breach of real burden restricting trade. Neighbours sought interdict but were unsuccessful as the sheriff equated material with substantial. Sheriff Principal held the test was not so strict but on the facts agreed with the Sheriff's conclusion that interest was not proven.

Shetland Islands Council v BP Petroleum

Defender built oil refinery. After years of finalizing documents the issue of rent came up. What basis should rent be calculated - rent of empty land or rent of oil refinery as that had acceded to the land? The CS found that the clause that stated the refinery was owned by defenders was irrelevant as accession operates regardless of parties. The council owned the refinery, rented out the land that it was on. Council went to court for a declaration there was a long lease and for it to be held that the defenders pay a fair rent. Court cannot fix the rent in a long lease, can only fix the rent for an annual tenancy. Held this was a one year lease, fix market rent.

Walford v David

Defender had a lease to moor fishcages along the seabed. It was alleged this interfered with a ferry route. Interdict was sought, not granted. There has to be material interference not just inconvenience. Public can enforce rights over water and the foreshore by means of an action known as actio popularis.

Aberdeenshire County Council v Lord Glentanar

Held that bicycles may be ridden where the public right of way was created by pedestrian use - 'pedal cycle is only an aid to pedestrianism'. Use by bicycle cannot establish general vehicular use, these are powered by engines.

Franklin v Lawson

Held that material means the opposite of immaterial.

NB Storage co v Steele's Trustees

Held that while a drainage system could have been upgraded to a higher standard it was adequate for the purposes of the lease. Landlord standard is not of perfection when under obligation to provide subjects for purposes of let.

Renfrew District Council v AB Leisure

Held unreasonable for a landlord to insist on new conditions being written into the lease in return for permission for the tenant to assign the lease.

Nisbet's Creditors v Robertson

Heritable security had been granted by a merchant in Scotland to his supplier in Holland for the price of smuggled goods. Contract illegal = security failed.

Mackenzie v Maclean

Hotel in Stornoway ordered consignment of beer, arrived bashed. Manager explained problem to the brewery who said to sort the beer out into good cans and bad, throw the bad out. Outside the hotel there was a skip, damaged cans placed there, news spread of the events and a crowd gathered to take the cans, some members paid others did not. The people who received the money for the cans were then charged with theft and the property belonged to the crown. Court held that in principle there was the appropriate actor reus of theft, but no proper mens rea and so there was no conviction.

J A Mactaggart and co v Harrower

If A sells part of land to B and does not say they can enforce then the law implies the part retained is the benefited property. Rule 7; non feudal burdens which are not part of a common scheme. Rule is that the benefited property is implied to be the land retained in the neighbourhood at the time that the burdens were imposed.

Trade Development Bank v Warriner and Mason

If the landlord grants a lease after a standard security and does not have the consent of the creditor then the creditor can have the lase set aside.

Royal Bank of Scotland v Wilson

In any case where a creditor seeks repayment of a monetary debt, failing which, the sale of the security subjects, it must first serve a calling up notice. Cannot validly enforce without a calling up notice.

Scottish Parliament Corporate Body v Sovereign Indigenous Peoples of Scotland

Indycamp. Human rights were not infringed by persons not being allowed to express their views by camping on another's land.

McLellan v J and D Pierce

Inner House case considering an appeal from the sheriff court. The sheriff granted an order requiring defenders to remove encroachments it had built on neighbouring. The extent of the encroachments had been agreed (as being 4 to 6 metres) by the parties in a joint minute and noting that the boundaries of both properties are specified in the land certificates and that the defenders had knowledge of what had been built. Court did not use their discretion.

Keith v Texaco

Benefited owner wanted to turn a field into 20 houses. This was held to be too great an increase on the burdened property. A real burden against building also existed.

Fixed list of servitudes

1. Way ~ distinguished between pedestrians = iter, cattle = actus, vehicular = via and railway 2. Parking vehicles 3. Service media ~ distinguish between aqueduct = right to lead water through burdened property and aquaehaustus = right to take water from stream or other source on burdened property as well as sinks = right to send burdened property water other than in its natural state - includes sewage 4. Support ~ distinguish between oneris ferendi = right to be supported by adjacent building and tigni immittendi = right to insert beam into neighbouring building 5. Stillcide (eavesdrop) ~ right to allow water to fall from eaves 6. Pasturage ~ right to pasture animals on burdened property 7. Extracting materials ~ distinguish between fuel, feal and divot = restricted to the needs of the benefited property and building materials = right to take stipulated materials for purposes of building on benefited property 8. Bleaching and drying clothes 9. Overhang/Projection

Thomson's Executor, Applicant

5 houses in a road. Owner of no.9 sought declarator that there were no benefited properties. They wanted to build a new house which was against the burden. Court said that s53 applied only in relation to no.7 because there was a mutual wall between the two properties, both bound to share maintenance. Only no.7 had title to enforce, even though there was a common scheme.

Low v Scottish Amicable Building Society

A burden prohibiting trade, business or profession is not breached if that use is ancillary to the residential use. e.g. person giving a piano lesson.

Brown v Richardson

A conveyance of the whole site was equivalent to deed of conditions. One deed over the whole development.

Probative

A document complies with S3 ROWSA. It is a document which is presumed to be validly executed. This is all about appearance.

Aviemore Highland Resort v Cairngorms National Park Authority

A fence had been put up before the Land Reform 2003. Held this is not in breach of the act as the purpose of erecting the fence was not to distort statutory access rights.

Axis West Developments Ltd v Chartwell Land Investments Ltd

A had granted to C an heritable and irredeemable servitude right to install services under land. A objected to the installation of a particular pipe, and sought damages to the cost of a grant of similar rights. All conditions restricting the use of land must be very clearly expressed, the presumption being always for freedom. Here the clause was sufficiently clear, and the servitude was granted. Appeal dismissed. The right to use a pipe for services extends to the full length of the pipe.

Waydale Ltd v MRM Engineering

A landlord who sought to instigate rent review 16 months after the review date was held to have waived the right.

Robson v Chalmers Property Investment co ltd

A landowner who acquiesces to a servitude will be personally barred from objecting later.

Gyle Shopping General Partners Ltd v Marks and Spencers plc

A lease of land can include a pro indiviso share in other land. This binds successor landlords.

Ross v Duchess of Sutherland

A provision for a reduction in rent in return for services performed by the tenant will not bind a successor landlord. Lease had a clause which stated the rent to be £12 a year, the tenant was allowed a £5 reduction in consideration for working on the estate. The estate was sold and the new landlord did not need work done, said the tenant was to pay £12. Court held the reduction clause was not inter naturalia and did not bind the successor landlord.

Patrick v Napier

A right allowing a landowner to fish for trout on a nearby river failed the test of praedial benefit and so was not a servitude.

Will's Trustees v Cairngorm Canoeing and Sailing School Ltd

A right of navigation of non tidal waters can be achieved by 40 years use. Pursuer owned rights along river Tay including salmon rights. They banned canoeing as that caused damage. However, there was a right to canoe as 40 years use had been established.

Aberdeen City Council v Wanchoo

A servitude can be created by positive prescription. Possession must be adverse, that is to say as of right, meaning the possession is as if the servitude right was actually held. the court has had difficulty with this. Also lack of tolerance can be inferred from a high volume of use of the servitude.

Ferguson v Campbell

A servitude of aqueduct was held to have been impliedly reserved in favour of a watermill, because the mill could not function without water. The servitude was utterly necessary.

Carstairs v Spence

A servitude right of access had been established by prescription. Benefited property was a market garden which subsequently became a building site. Held that the benefited proprietor could carry building materials along the access route. There was no increase in the burdened property due to carrying building materials and not vegetables.

Kerr v Brown

A servitude to carry waste water from sinks was established by prescription. It was held it could not be extended to cover sewage. In passage servitudes such as access or aqueduct, a change in the type of thing passing may be an unwarrantable increase in the burden. Tantum praescriptum quantum possessum = prescription is measured by possession. A servitude cannot be greater than what prescription established.

Cochrane v Ewart

A servitude will only be granted where this is 'necessary for the reasonable enjoyment of the property'. Lord Campbell 'When I say it was necessary, I do not mean that it is so essentially necessary that the property could have no value whatsoever without this easement, but I mean that it was necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant'. Tanyard and garden owned by the same person, tanyard drained into the cesspool in the garden. When the tanyard was sold separately, it was held a right of drainage had been impliedly granted in the conveyance.

Jute Industries Ltd v Wilson and Graham Ltd

A tenant who stays on without agreement after the ish is liable for violent profits. Tenant stayed on for 2 months, liable for double rent.

ASA International Ltd v Kashmiri Properties (Ireland) Ltd

Access through the back of property was a quasi servitude. The properties were separated and the issue was whether a servitude had been impliedly granted. It was held there was no impliedly granted servitude as it as fairly easy to use other routes.

Gow's Trustees v Mealls

Access to A through B. Servitude was not impliedly granted as there was alternative access. In cases of implied grant a quasi-servitude normally exists at the time the properties are separated, the right claimed was exercised before the division.

Harper v Lindsay

Held that a servitude right of skating or curling on a loch during appropriate cold weather cannot be a servitude - Not a praedial benefit of the land.

Glen v Roy

Action for payment of unpaid rent against a man who was in occupation of his fathers house before and after his death. Creditor was enforcing security. The man said his father let him live rent free. He had admitted occupancy, presumption he was a tenant and therefore pays rent. If the other three elements are in place and the lessee has already taken possession, then the court may be willing to hold that a lease exists, and to fix a market rent.

Thomson v St Cuthbert's Cooperative Association Ltd

Action of negligence can be taken where loss is caused by a failure to provide support or shelter. Fault needs to be shown for a damages claim to succeed.

Kennedy v Glenbelle Ltd

Action of nuisance can be taken where loss is caused by a failure to provide support or shelter. Fault needs to be shown for a damages claim to succeed.

Corrie v Craig

Action to recover half the cost of a dry stone dyke from his neighbours. The Sheriff found that, even though the dyke would have a much longer life, and the original boundary had been a stone dyke, a stock-proof fence would have been perfectly adequate. Therefore, the amount which the neighbour should pay would be the extent to which they were 'enriched' by pursuer's actions, not half the actual cost of the dry stone dyke. It should be noted that pursuer also made the fatal mistake of trying to rely on the March Dykes Acts after the event, by which point it was too late. A type 1 fence is wholly on one side of the boundary, the expense must be borne by the landowner solely, unless, there is a real burden requiring contribution or the March Dykes Act 1661.

Romano v standard Commercial Property Services Ltd

Amusement arcade in Glasgow, servitude of shop front was rejected.

Mendelssohn v The Wee Pub Co Ltd

An attempt to establish a servitude of sign hanging failed because it was not a recognized servitude.

Carswell v Goldie

An obligation to build a house which may include a garage did not prevent a second garage from being erected. The words did not prevent two garages.

Bisset v Magistrates of Aberdeen

An option to purchase will not bind successor landlords. It is not inter naturalia.

PMP Plus Ltd v Keeper of the Registers of Scotland

Developer sold plots in a development with a pro indiviso share in the common areas which were described as being those areas not exclusively alienated to the home owners. Rights of common property can be created by express grant in the original break off conveyance. Lands Tribunal for Scotland decided that the home owners did not have an effective title to the common areas due to the absence of a sufficient description. Description by reference to a future uncertain act. Does not meet the specificity principle, not certain.

Davie v Stark

Dispute over an exclusivity agreement. New landlord did not challenge and so was bound. They then let a neighbor trade in the same product. Held this was a material breach by the landlord.

Probativity by Attestation

Document must be witnessed. The document is subscribed by the granter. The document bears to have been signed by a witness to the granter's signature and the name and address of the witness are given. There must be nothing in the document or testing clause which indicates that the document was not subscribed in the way it bears to have been, nor anything to indicate that it is not validly witnessed. The witnesses' signature must not be forged. The granter of the deed cannot be a witness. The witness must know the granter, be 16 or over and be mentally capable of acting as a witness. The person who signed as witness must have actually witnessed the granter's subscription. The witness must sign after the granter has signed. The designation of the witness must be added before the document is founded on in the court, or registered, and must not contain any material respect have errors in it.

Lord Advocate v Clyde Navigation Trustees

Dropping rubbish in the Clyde was held not to be navigating.

Carruthers v Irvine

Duration of lease was 'as long as the grass growth up and the water runneth down'. This was held to be a certain period.

Getting out

Each co owner is entitled to transfer his own share. Entitled to physical division or if impossible to division and sale. But not things of common and indispensable use.

Anderson v Brattisanni's

Edinburgh chip shop placed a flue on the side of someone else's wall = encroachment by use of another person's building for signpost or other object. The pipe had been in place for years, the encroachment was not significant and the effect of removal would be catastrophic to the chippy. CSIH held no removal, used discretion to withhold the remedy of removal. Where a predecessor has given consent to the encroachment, the court will take this into account if the successor objects.

Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd

Elevated and enclosed heated walkway. New owners closed it at night due to vandalism, this was challenged on the basis of a public right of way. Held this was a public right of way and so could not be locked.

Shilliday v Smith

Engaged couple, woman did the house up. Separated, she sought compensation. Held she was entitled to compensation to the extent that she had enriched the property.

Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd

English courts not willing to award the equivalent of specific implement with regard to keep open clauses, instead deciding to award damages.

Kettlewell v Turning Point Scotland

Estate of 20 house in the Bridge of Weir. Burden restricting use to one family only, no other purpose. Charity intended to use the house for up to 6 unrelated adults with learning difficulties who were supported by 24 hour shift workers. Neighbours sought interdict. Sheriff held there was more noise, traffic and parking issues. A surveyor had also proved that value of the houses had decreased. This was held to be material detriment.

Warren James (jewelers) Ltd v Overgate GP Ltd

Exclusivity clause was inter naturalia. No argument over the matter.

McKichen v Muir

Family booked into an inn in order to attend a local ball. When they came back from the ball, there was an argument over the bill and the innkeeper detained the family's clothes. They had to walk 8 miles home on a rainy night, the ladies without bonnets. Held the innkeeper was within his rights - special lien.

Greenbelt Property Ltd v Riggens

Feudal burden required land beside a housing development to be maintained as woodland, had this survived feudal abolition as a facility burden? Land tribunal said woodland could be facility, but was not intended to be in this case as there was no obligation of maintenance or use.

Boskabelle v Laird

Field, winter seed growing at the time of sale. Seller came back to reap harvest. Buyer wanted compensation due to accession. Seller argued industrial growing crops exception. Court held that the seller was correct.

Moss Bros Group plc v Scottish Mutual Assurance plc

Fire escape access, there was enough detail from the content of the deed to prove that there was a servitude. It is not essential to use the word servitude but for the sake of clarity it is wise to do so.

Shetland Salmon Farmers Association v Crown Estate Commissioners

Fish farmers argued the sea bed was udal. The idea of crown ownership of sea bed was feudal and so did not apply in Shetland as Shetland was udal not feudal. Held this was crown prerogative and so the sea bed is owned by the crown.

Valentine v Kennedy

Fish farming rainbow trout, bought by someone to stock loch. The fishing permits were rented out. Trout escaped into neighbouring burn and fished by poachers. Was this theft? If the trout were wild animals then once they escape they are available for occupancy, therefore, no theft. Sheriff held that theft had been committed as the fish had not gotten far, and were not indigenous and so could be identified as the ones that belonged in the loch, therefore, there was theft.

Optical Express (Gyle) Ltd v Marks and Spencer Plc

Held that an exclusivity clause providing that the tenant was the only optician in a shopping centre was not inter naturalia.

Kinloch Damph Ltd v Nordvik Salmon Farms Ltd

Fish farming, pursuers supplied to defenders large quantities of salmon smoults, defenders fed them up into salmon 30x the original size. Defender's became insolvent, had not paid the full price. There was a retention of title clause till payment. Argued retention of title could not operate due to specification, now mature salmon, changes of species occurred, ownership had passed. Argument failed as judge ruled specification cannot apply to animals.

Mann v Houston

For a lease there must be a specific continuing rent. A grassum on its own at the start of a lease is insufficient.

Inglis v Robertson and Baxter

For a pledge to operate there can be constructive delivery. A is storing whisky in B warehouse and wants to make a gift of it to C. C is willing to accept. A instructs B to hold the whisky on C behalf in order to transfer it. C now has civil possession. A handing over a warehouse receipt to C is not enough.

Church of Scotland General Trustees v McLaren

Former church in Crieff had a Victorian real burden that use was for religious purposes only. Church sought a variation in the Land's tribunal of this in order to sell property. In most cases the tribunal grants the application.

Servitudes

Four requirements 1. Consist of a right to enter/make use if the property of another = burdened property 2. Confer praedial benefit = benefit to the benefited property 3. Not be repugnant with ownership - TCSA s76(2) 4. Be a right known to the law, unless created in writing and registration on or after 28/11/1004.

Burnett's Tr v Grainger

G buys house in Aberdeen, hands over the money, the solicitor receives a disposition but does not register it until 14 months later. The seller becomes bankrupt in the meantime. Trustee in sequestration races to the register and wins, therefore, becomes owner. Trustee knew of rival however, the offside goals rule does not apply to creditors. G argued using Sharp, that once the disposition was received the seller did not have the beneficial interest. SH CT accepted the argument. CSIH reversed the decision. HL got rid of beneficial interest, applied orthodox property law. Did not overrule Sharp, distinguished from it.

Marriot v Greenbelt

Grass area owned by G, houses in the development were burdened with share of maintenance. There was no express right for this, the area was not a common area and there was no right of use. Court held it was praedial as the land benefits from being maintained. Houses to pay maintenance of grass. Benefited property defined as part of development where houses were in terms is planning permission as varied or supplemented. Burden failed ~ referred to planning permission ~ uncertain as planning permission can be varied

Forest Property Trust v Lindsay

Interdict from sheep straying. Owner sought recall, argued there was no obligation at common law to herd sheep, it was up to the neighbour to put a fence up as this was proper farming practice. court accepted this argument. Onus is more likely to be placed on the owner of the land being trespassed upon to enclose it by fencing rather than upon the owner of the animal to prevent the intrusion.

Co-ownership

It is possible for the same piece of property to be owned by more than one person. Property owned this way is common property. Each owner had a pro indiviso share. Examples are matrimonial property, flatted properties = shared common parts.

Johnson Thomas and Thomas v Smith

JT&T owned an area of land in Rutherglen which was used as a residential site for showmans' caravans. They sought declarator that they had a servitude right of parking over a narrow strip of vacant ground owned by T G & V Properties Limited. JT&T argued that the right had been created by prescription as they and their tenants had parked vehicles on the strip openly, peaceably and without judicial interruption, for over 20 years. Sheriff found that Scots law does recognise a free-standing servitude of parking.

Retail Parks Investments Ltd v Royal Bank of Scotland plc (no 2)

Keep open clauses are common in retail leases and require the tenant not merely to possess but to trade from the premises on specified days in specified hours. Scottish courts willing to enforce these clauses by specific implement provided the clause is clearly drafted.

Joint Administrators of Rangers plc

Lack of exclusive possession will mean there is no lease. A season ticket giving a football supporter the right to sit in a particular seat at matches cannot confer a lease as there is only intermittent possession. This was simply a licence.

Andert Ltd v J and J Johnston

Land lease described the property as Herbshill from Newmains. This was a sufficient description. The landlord's title could be looked at for exact limits. If the tenant has already entered possession it may be possible to refer to that possession to determine the extent of the lease.

Lousada and co v J E Lesser (Properties) Ltd

Landlord held to have acted reasonably in withholding permission for assignation of the lease until a rent review was carried out.

Banks v Mecca Bookmakers (Scotland) Ltd

Landlord missed rent review by one or two years but continued to collect rent at the existing level. Court held he had waived the right to rent review.

Glebe Sugar Refining co v Paterson

Landlord only required to provide building of sufficient strength and weight of ordinary trade usage. The tenant overloaded and so was liable.

HMV Fields Properties ltd v Bracken Self Selection Fabrics Ltd

Landlord served irritancy notice, the matter went into arbitration. Tenants remained in the property and paid rent. The landlord sent the rent back but delayed in returning 2 payments. If this was acceptance of the rent then this is a personal bar to irritancy. Court held this was not a waive of the breach, not a bar to irritancy.

Turner v Nicholson

Landlord was compensated and agreed terms of improvements. New landlord said no. Court held the new landlord was not bound as these terms were not the inter naturalia of the lease.

Bell v Shand

Landowner was held to be justified in dragging a 15 year old poacher for some distance by the scruff of the neck. Unlikely to be good law nowadays. Example of self help in relation to trespass.

Russel Properties (Europe) Ltd v Dundas Heritable Ltd

Mixed development of commercial and residential properties. Varied burdens in relation to use, held there was no common scheme.

Marfield Properties Ltd v Secretary of State for the Environment

Lease contained a service charge for cleaning of the common parts. Held there is no objective definition of common parts, depends on the lease.

Mars Pension Trustees Ltd v County Properties and Developments Ltd

Lease contained a service charge provision. Held the tenant was liable for a fair proportion of the charge.

Welwood v Husband

Lease for 999 years allowed. However, now long leases of over 20 years are not allowed for private dwelling houses, or any leases of more than 175 years.

Tay Salmon Fisheries Co v Speedie

Lease of salmon fishings frustrated by impossibility due to the ministry of defence making the area a designated firing range. Therefore, impossible to fish.

Charterhouse Square Finance Co Ltd v A and J Menswear

Lease set out a clear timetable with consequences. This was held to rebut the presumption of rent review.

McDonald v Provan compared Khan v Minister of Law and Order

Litigated in Scotland and South Africa with different results. Car bought, picked up by police as actually being two cars joined together, one part stolen. In M the CS held that this was a specification question, result to make workman owner = purchaser is owner. Specification did not occur because the workman was in bad faith, knew of part being stolen. Therefore, bad faith disqualification. In K the court held there was accession, the question of principal and accessory was decided on bulk. Bigger part was stolen and so the entire car was deemed to be stolen, buyer had no ownership.

Leonard v Lindsay and Benzie

Lord Young - a proprietor is not entitled to encroach upon his neighbour's property even to the extent of driving a nail into it.

Macdougall v Guild

Parties to a lease can contract out of tacit relocation.

Scammell v Scottish Sports Council

Navigation does not include propelling a canoe by wading along the sea or river bed.

Ballantyne Property Service Trustees v Lawrence

Near Queen Margaret University there was a housing estate subject to the same deed of conditions - none of the houses could be subdivided or occupied by more than one family at a time. Applicants bought house with the intention to let it out to 5 students and so sought variation in the Land tribunal of the burden. Tribunal weighed up the factors. Neighbours argued that students meant there would be parties and more traffic, threatening the safety of young children. The application for variation of the burden was refused.

More v Boyle

Neighbour's water supply went through another house, so the proprietor turned the supply off. Sheriff held this was aemulatio vicini.

Harvie v Turner

Neighbouring fields one full of cows and one had a bull. Owner of the cows said having a bull next door is not wise, and made repeated warnings. Bull went over the fence and 'served cows'. This resulted in unsuitable cross breeds and damages to the cow owner. This was forseeable, there was fault. Trespasser who causes damages is liable for it.

Tawne Overseas Holdings Ltd v Newmiln Farms

Notice to tenant sais they had to pay within 14 days of notice or the landlord irritates. This was held invalid. Statute states that irritancy can occur 14 days from service of the notice, not from the notice being written. Failure to comply with the statutory rules will entail that the lease is not properly irritated.

Morris v Bicket

Obligation to refrain from acts which materially interfere with non-tidal water or its natural flow. If a proprietor intends to construct a building on the alveus which will disrupt the flow of the water, this may be interdicted.

Lundin Homes Ltd v Keeper of the Registers of Scotland

Once the development was developed it was clear what was common property, division had worked for subsequent sales, Keeper midas touch would rectify. Lands Tribunal held this does not work - the identity of the common areas does not become fixed merely because the last plot in the development has been sold and, where the common parts have been insufficiently described in the original purchases from developers, subsequent sales of the properties will not cure the defect. It has to be clear before what the common property is.

Scottish Residential Estates Development Co v Henderson

Owner of a cottage wrote to a lady stating 'you and your sons may have the use of the cottage until we require possession of it' . Held there was no intention to create a lease. This was a licence.

Aberdeen Varieties Ltd v James F Donald (Aberdeen Cinemas) Ltd

Owner of two theatres sold one of them and imposed a real burden requiring '[the property] shall not be used in all time coming for the performance of pantomime, melodrama or comic opera or any stage play which requires to be submitted to the Lord Chamberlain under the Act for regulating Theatres 6th & 7th Vict c 68.'. A valid real burden was not created since the deed referred to statute which was not set out within the deed. It also failed due to lack of interest as the properties were not neighbours, too far apart to be.

Snowie v Stirling Council

Owners of Boquhan House sought to have all 70 acres of their estate declared exempt from public access rights. This failed except for 12.6 acres.

Cochrane v Stevenson

Painting not a fixture, not severely attached to wall. Has its own value.

Duke of Buccleuch v Magistrates of Edinburgh

Pillars on the front of the Assembly Rooms in George Street were built onto a neighbouring property's land = encroachment by building. Action brought over 20 years after the assembly rooms were built = personal bar, acquiescence.

Crichton v Turnbull

Pipes running along the ground, these are not a conventional separate tenement as they have acceded to the ground.

Bowers v Kennedy

Polo mint case. Inner House held that the right to access landlocked land was an inherent part of ownership of that property. The right is incapable of negative prescription.

Animo Solo

Possession mentally, not physically in possession. Houses when the person is on holiday.

Wilmington Trust co v Rolls Royce plc

Possible to assert a lien over land.

Brown v Crum Ewing's Trustees

Property to be used only as a private dwelling house. Held it was permissible for 25 orphaned girls to live there. The burden did not say 1 family only.

Winans v Macrae

Pursuer sought an interdict to prevent the defender 'from putting any lamb, lambs, sheep, cattle or other bestial' on his 200,000 acres of unfenced rough grazing. Defender who lived in an adjacent cottage only had a pet lamb. Action failed. Interdict for straying animals is not available unless the animal is of a type normally and easily confined.

Hill of Rubislaw (Q Seven) Ltd v Rubislaw Quarry Aberdeen Ltd

Quarry being developed in order to get the cooperation of a neighbouring office block for access, they imposed a condition limiting the maximum letting office space in the new development. Was the commercial benefit praedial, Court held that it was.

Dunlop v Robertson

Solicitor built a 60 foot wall in order to block neighbour's sunlight. Neighbour brought an action of aemulatio vicini = spiteful act conferring no benefit. The action was unsuccessful as the solicitor argued that the wall was for the purpose of private meetings.

Valid

Requirements of Writing (Scotland) Act 1995 S2. Subscription by the person granting the document. To subscribe a person must sign at the end of the document. S7(2) describes signing, there are three methods 1. Sign a first name and surname = standard method e.g. Louise Millar. 2. Sign the full name = longstop method e.g. Louise Emma Millar. 3. Sign by means of any other name or description or initial or mark = informal method e.g. LM. This must be the granter's usual signature, or their intended signature. A deed cannot be probative if signed in this way. Schedule 2 lists the ways for juristic persons to sign documents.

Possession

Requires act of the body (corpus) and act of the mind (animus). Act of the body is seizing control. Act of the mind is intention to exercise control for one's self. Where one holds only for someone else this is called custody.

South Lanarkshire Council v McKenna

Residential lease. Challenge to the legislation on short Scottish secured tenancies on the grounds this was a breach of article 8 ECHR. Attempt to use this ground as a defence against eviction from residential property unsuccessful. Held the legislation was compatible.

Marquess of Ailsa v Monteforte

Right of recreation did not include commercial purposes such as sale of ice cream. Rights of the foreshore.

Marquis of Bute v McKirdy and McMillan

Right of way between a road and the foreshore. Held that a public right of way had been established. Use was typically in summer and good weather. Even if permission is not given a public right of way will be assumed if there is no objection.

Drury v McGarvie

Right of way over farmland from a public road to a cottage. The farmer's animals were straying off the land, so he erected stockproof gates at either end of the right of way. Owners of cottage were elderly and struggled with the gates, so objected. Held that the erection of the gates was reasonable. Criteria was that an average person could open the gates. The burdened owner can use the property but must respect the servitude.

Wallace v Simmers

S agreed with his daughter that she could occupy a cottage on his farm indefinitely and rent free. He then conveyed the farm to his son who knew of the agreement and was happy with it. The son then sold the farm to W who asked the woman to leave. She refused and so they sued for her removal. She argued that they knew of her right before buying. Her right was no a lease, only a personal right and so the offside goals rule did not apply as it was not a real right.

Grant v Cameron

Servitude stated to be for all purposes. Therefore authorized users of the benefited property could use the servitude e.g. tenants, friends. The deed stipulated the extent of use of the servitude.

Murray v Medley

Sherriff unwilling to accept that piped water was an utter necessity for a house. (unlikely to be decided this way nowadays).

Sharp v Thomson

Siblings concluded missives for a house from a company. Their solicitor's handed over the money but, the disposition was not ready yet, they couldn't get the disposition for over a year. They were living in the house, so had possession. The company was in financial difficulty, deeply indebted to the bank, granted a floating charge (a type of right in security only companies can grant). The floating charge attaches to assets upon insolvency. Once the disposition was handed over, the solicitors registered. However, the floating charge attached prior to registration of the disposition. At the date of attachment the siblings had not registered an so were not owners. By failure to register the solicitor had exposed them to the risk of the seller's insolvency. The CSOH held that the siblings had lost and the bank had the floating charge. The CSIH held that the floating charge caught the property. The HL held that although the company is owner, they have no beneficial interest in the property. The siblings had the beneficial interest in the property, so the floating charge could not attach due to the lack of beneficial interest. This was English law that had been applied, therefore, there was outrage in Scotland. Beneficial Interest had not been explained. In effect reversed by the HL In Burnett's Tr.

Amherst v James Walker Goldsmith and Silversmith

Six years had passed between the rent review date. Court held that the landlord had not waived the right = ENGLISH position.

PS Properties 2 Ltd v Callaway Homes Ltd

Stirling poundstretcher. Tenement in which some properties were commercial and the others residential. There were 8 units, 2 shops and 6 flats. The first floor was developed into a poundstretcher. There was dispute over repairs to the roof. TMS needed a majority for a scheme decision. Court held if there are 8 properties then 5 votes are needed, if there are 6 properties, 4 votes are needed. Held what constitutes a flat is to be determined at the time of the decision rather than when the building was constructed = majority of 4 required. Poundstretcher were outvoted.

Assessor for Fife v Hodgson

Storage heaters, no independent function. Heritable, have to accede to house. Same goes for central heating structures.

Davidson v Zani

Successor landlord was held bound on a basis of offside goals rule. Tenant had option to buy, landlord sold shop, new landlord bound.

Christie v Smith's Exr

Summerhouse rested on own weight on land. Buyer's believed the summerhouse was part of the property. Seller had taken it when they moved out. Dispute - had the summerhouse acceded? Held the summerhouse had acceded due to the weight.

Lord Advocate v University of Aberdeen and Budge

Team of archaeologists excavating came across St Ninian's Treasure - who's property was this? Crown, archaeologists or land owner? The CSIH held the law of treasure was to be treated as the normal law of property. The treasure had an owner at some point in time, but, it had since been abandoned and any abandoned property is owned by the crown. Therefore, buried treasure belongs to the crown.

Mercer v Esk Valley Railway co

Tenant attempted to bring railway onto property that was let as a mill. The effect of this was to invert possession.

Newton v Godfrey

Type 2 fence straddles the boundary between properties, there is a common interest to maintain the stability of the structure as a whole. This is a positive obligation. If it is not complied with, the other neighbor can carry out the work and recover the cost.

British Linen Bank v Purdie

Unauthorised alterations are considered to be inversions of possession. Tenant fixed displays on the outside of the shop, this was beyond the terms of the let = invert possession.

Millar v McRobbie

Tenant given a start date of Whitsunday. Allowed to carry out preliminary agricultural operations before the entry date. Landlord sold the property in that time. Tenant claimed real right. Court held that limited acts of working did not amount to exclusive possession. The possession was also prior to entry date. Offside goals rule was not applied.

Brand's Trs v Brand's Trs

Tenant had a 19 year lease of land for mining purposes. HL held that there were unitary laws of accession. Correct way to solve tenant improvement conundrum is that there is accession but the tenant has right of removal at the end of the lease.

Crieff Highland Gathering Ltd v Perth and Kinross Council

Tenant had not fulfilled the obligtion of maintenance. Lord Pentland found that the Council was in breach of its obligations under the lease but concluded that the breaches were not material and therefore pursuers were not entitled to rescission.

Graham and Black v Stevenson

Tenant must enter into possession and use the property of lease. Failure to do so is a material breach. Hotelier took tenancy of another hotel in order to shut it down = material breach.

Signet Group Plc v C and J Clark Retail Properties Ltd

Tenant served an invalid notice to quit and also shut down their business and vacated the business premises well before the ish. Landlord argued tacit relocation. Held the lease had continued. The actings were not communicated to the landlord and so were not sufficient to prove intention to quit.

Mickel v McCoard

Tenant went away for an excessive period and di not turn the water off, the property had no heating. Held that the tenant was liable for burst pipes. Tenant who breaches the obligation of possession will be liable for damages sustained to the property as a result.

Blair Trust co v Gilbert

The absence of the tenant due to detention at Saughton prison for more than a year meant the landlord could bring the lease to an end on the ground of material breach. A reasonable period of absence will not breach.

Crown Estate Commissioners v Fairie Yacht Slip Ltd

The attaching of fixed moorings to the sea bed is not permitted. The crown is entitled to enforce the common law rights for public rights over tidal and non tidal waters.

Inverurie Magistrates v Sorrie

The courts will not grant interdict in an action of trespass unless there is a reasonable likelihood of trespass in the future.

Rhins District Committee v Cuninghame

The public right of way was a route which went off a public road along a river and back onto the same road. This was a route between two public places = held to be acceptable.

Alterations and repairs

Usual rule for common property is that the consent of all is required. There is a special rule for necessary repairs, which may be carried out by one proprietor but the costs are recoverable pro rata.

Moncrieff v Jamieson

The respondents (M) owned a property situated between the foot of a steep escarpment and the foreshore. Vehicles could not be driven onto the property. The property once formed part of the lands owned by J and he was the owner of the land between the property and the public road. Since the property had no access to the public road, the rights conveyed by the disposition in 1973 included a right of access from the public road through J's land. The effect of that conveyance was to confer a servitude right of access to the property from the public road for both pedestrian and vehicular traffic; and a right to stop vehicles on the servient tenement in order to turn, load and unload goods from them and set down and pick up passengers was accessory to the right of vehicular access. M claimed that there was also an accessory right to park vehicles on the servient tenement. The sheriff granted declarator that M were entitled to park vehicles on the servient tenement in the exercise of rights accessory to the servitude right of access and pronounced permanent interdict against J. The Court of Session dismissed an appeal. J submitted that it was not possible in the law of Scotland for there to be a servitude of parking; a permanent interdict was unnecessary and its terms were too uncertain to enable J to know what was prohibited by it. HL held a servitude right to park could be constituted as ancilliary to a servitude right of vehicular access if it was necessary for the enjoyment of the servitude of access. Obiter, the court also recognised the possibility of a servitude right of parking in Scottish law

Braes v Keeper of the Registers of Scotland

The rule in Mactaggart does not apply to pre-emption rights. This temporary rule is no longer available.

McEwan's executors v Arnot

The test for whether a servitude is impliedly reserved is of 'necessary for comfortable enjoyment' instead of utter necessity was accepted by the sheriff.

Alba Homes Ltd v Duell

There was one house and the benefited proprietor wished to build a second. This was held to be permissible. No increase in burden on burdened property.

Civil Possession

Through the corpus of another. For example, you own a jacket but take it to the drycleaners, the drycleaner does not own the jacket, you are still in possession but the dry cleaner controls it on your behalf. Someone else has control over your thing but you still have ultimate possession.

Snowie v Museum Hall LLP

Title conditions said no trade, business or profession even if ancillary. However, it is fine if doing something unintrusive such as an artist working at home. This was held to be wrong as anything ancillary is not allowed.

Garvie v Wallace

Title said meetings about repairs had to be instructed 14 days prior. This went beyond the rules of the TMS. Therefore this is the rule as the TMS only applies insofar as it is not overridden. The TMS is subject to contrary provision by real burden.

Halkerston v Wedderburn

Tree's branches overhang the land. Demanded neighbor remove branches. Court held this, order to remove encroachment.

Brown v Lee Constructions Ltd

Trespass can be by persons, animals and things. In this case by a crane that was swinging over property for 3 months. Interdict was awarded.

Thom v Hetherington

Two neighbours gardens were divided by a brick wall. These neighbours had fell out over the years and there was even an incident of encroachment as T found roots to H's plants in his garden and poisoned them. H had decided to build a fence attached to her side of the wall - type one fence, her property = entitled to do this. T objected as the boundary wall was common property, neither of them can interfere with it without the others consent. CSOH the wall is not common property, it is owned to the midpoint. Was this then a breach of common interest? Adversely affecting the structure as a whole? The interference was immaterial = no action. Alterations to your part of the type 2 fence must not endanger support - common interest restriction.

Welsh v Russell

Warrandice that there were no material encumbrances. The buyers realized afterwards that there was a servitude for a neighbor, tried to recover under warrandice. The seller's defence was that this servitude was not a material enough. The Inner House ruled that even a minor servitude is regarded as material. The buyer was able to recover damages. Not many encumbrances are immaterial, contrast with Lothian and Border Farmers case.

Wolfson v Forrester

Water came from pipe, there was a hole in the pipe and wall, this led to flooding. Court held the premises must be wind and watertight. The hole in the wall would only cause problems in extraordinary circumstances and as the tenant could see the hole when they moved in this meant they had accepted it. Landlord's obligation to carry out appropriate repairs is not a warranty because the landlord is only liable if no action is taken within a reasonable time following notification.

Trade Development Bank v Crittal Windows

Where the tenant has agreed to assign the lease, but then grants a standard security over it which is made real before the assignation, the assignee may have the security reduced under the offside goals rule if the creditor is in bad faith.

Roebuck v Edmunds

Where there is a pre-emption right and the property is not offered to the holder, the transfer in breach of the pre-emption may be reduced under the offside goals rule.

Gray v Edinburgh University

While duration is a cardinal element of a lease, if it is missing and all other elements are present and the lessee has taken possession, the court will imply a duration of one year. This case was missing rent and duration = no lease.

Secretary of State for Defence v Johnstone

Wife of serviceman continued an agreement to live in the property after separation. The agreed period ended, she stayed longer. The RAF brought an action for payment under unjustified enrichment. She disagreed with the amount to pay. Was this to be a market or service rent? Court held market rent.

Use

With agreement any possible. Without agreement - may use all parts of the property, but only for ordinary use, and no excessive benefit.

Tuley v Highland Council

Woodland near Inverness, owners wanted to encourage access so put down paths, but did not want horses so put signs up. Riding school complained, council ordered the signs to be put down. CSIH held this was a reasonable decision. Demonstrates that local authorities have enforcement powers.