Occupatio - Occupation
- Property law is a maxiture of mainly Roman and Fedual Law. Even though Fedual Law has been abolioshed the history of it still remains.
- Property law is the law of things and rights in things
- The Doctrine of Occupancy i.e the taking of ownerless property. Is a method that is limited by the scarcity of ownerless property.
- That which belongs to nobody becomes property of the Crown. This often refers to property that was owned by someone before but was lost or abandoned.
- Occupation alone is insufficient to create a real right to corporeal heritable property.
- To aquire property under occupatio you must bring it under control you then have ownership and must maintain owenership, even is if escapes i.e. birds, animals or fish which have been tamed or domesticated.
- Valentine v Kennedy 1985 - accused argued that fish were out of enclosure so were not stolen - argument fell. R trout are not native to Scotland
- Mackenzie v Maclean 1981 - damaged beer cans put in bin, locals took them but even though cans were abandoned does not mean they had no owner. Driver and barmen charged with theft.
Specificatio - Specification
- Doctrine of Specification is when something new is made from material that belong to someone other than the maker. i.e. B makes wine from garpes belonging to A - B then owns the wine. If this is the case B has real rights to the wine and A has personal rights to the value of the original product which is the grapes.
- Armour v Thyssen 1990 - A supplied lengths of steel to T. Steel couldnt be made back into the original product as T made them short.
- Rule became - maker becomes owner of the new goods and the supplier is entitled to the value of the material supplied.
Accessio - Accession
- When 2 items of corporeal property become joined or attached.
- Possibility of convertion - in general applies from heritable to moveable or vice versa i.e. if you build a house, you should use bricks as bricks start out as moevable but when incorp into a home they become heritable.
- Accesssio = the joining of 2 items - when a moveable item becoems part of a heritable item
- Main effects - 1) Seperate ownership rights in the accessory are extinguished 2) Original ownership rights in the accessory do not revert on subsequent sep 3) In the law of fixtures, property is moved from one class to another i.e. M to H
Accessio - Accession Cont.
- Compensation can be payable in certian circumstances - Shiliday v Smith 1998 demonstrates - SH enaged to SM, he bought a house which they intended to own 2gther. SH spent lots money renovating home. They then seperated. SH claimed unjustifed enrichement - case was successful because money was paid on the basis of marriage. Remunerations where given.
- What is needed for Accession - 1 or more of the following points -
1) Physical attachment or connection(more firm the accessory attaches to the principle, accession takes places)
2) Functional subordination(accessory serves as principle)
3) Permanace - 4 sub-tests
Accessio - 1) Physical Attachment
- Greater the attachemnt more likely for accession to occur.
- Note existence of fixtures and heavy items resting on their own weight.
- Dowell v Miln 1874 - concerned mill which had spinning machines in it. Mill owner died with no will, so was unsure if machines were heritable of moveable. SpinM were attached to floor nut could be taken out with no damage. Thus were moveable and could be taken out. No accession here.
2) Functional Subordination
- Were the accessory serves the principal in some functional way i.e. central heating serves purpose to home - give heat
- Works of artistic or aesthetic merit are excluded - are moveable
- Cochrane v Stevenson 1891 - sale of manor house. 3 oil paintings, seller claiemd they are moveable. Puchaser said heritable. Held they were moveable and seller was entitled to them.
- Leigh v Taylor 1902 - concerned tapertry in manor home. Court held tapertry was moveable
- Might be better regarded as 'more than temp' - absolute permanece isnt required
- Brands Trs v Brands Trs 1876 - changed the need to absolute permanence. Accessory is there for more of a temp basis.
4 Tests for Permanence
- 4 tests for permanence
- 1- is attachment greater than neccessary - Leigh v Taylor
- 2- Has accessory been adapted to fit the principle vice versa - Howies Trs v McLay 1902 - lace looms that were bolted to roof. Due to this were held to be heritable
- 3- Is item kind of thing that is left behind when occpancy ends
- 4- Is installation/removel time long/costly
Is Intention Relevant
- Brands Trs v Brands Trs demonstartes that
You cannot simply say these items will remain moveable if a lot of hard owrk and spending has taken place.
Exceptions to this rule
- Tentant has right to remove trade fixtures. If tenant installs fixtures to property they may take them away - common law rule.
- David Bosweel 1989 case - defenders had machinery on HP, finance comp rasied action as they failed to keep up with payments. Court held defenders could remove fixtures at any time and give pursuers their machinery back
- Exceptions - made for industrial crops as it is heritable as they come from the ground. Person who sowed them is entitled to harvest them.
- Arigcultural and Ornamental fixtures also - Spyer v Phillipson - antique panellin, fireplace fixtures. Court held they were moveable.
Accession of Moveable to Moveable
- Where there are 2 substances but 1 cannot exist seperately, the former being the principal.
- 3 Main tests - 1) How attached are they physically 2) Does it serve a purpose t principal and 3) Has accessory been there for a significant ammount of time
- When it is Moveable -Moveable it is harder to decide which substance is the principal and which accessory - Zahnrad case 1986 - Suppliers argued they still owned vehicle componets which were supplied to the defenders. Court held accession did not take palce as parts could be removed easily and used again.
Accession of Heritable to Heritable
- This is the principle of alluvion and avulsion
- Can only occur where there are 2 pieces of land with river between them and river changes course which leads to change in boundary. 1 party will lose land and 1 will gain land. Alluvion does not happen if there is a flood, Avulsion will not alter the boundary
- Stirling v Barlett 1992 - dispute between 2 neighbours over boundary. It was in a river between the 2 properties. Before there was a flood and it brought deris whichw as cleared by a bvulldozer. So bulldozed channel should = boundary. Defender argued no. Court held not enough evidence to see where old channel lay, new bulldozed channel was new boundary line and pursuer won.
Accession of Fruits
- Owner of principal will own fruits
- Owner of cow will own the calf etc
- PP creates rights via the passage of time - the prescriptive period
- This is a process by which you can obtain property over a passage of time. Cannot acquire heritable property by accession alone - you need more than that i.e. acquasition of rights
- Negative Prescription Extinguishes rights via passage of time.
- Requirements - 1) Valid title deed about property in question 2) Registration of prop in Land Register of Register of Sasines 3) possession for prescriptive period of 10/20 years 4) possession must be open, peaceful, continuous and uninterrupted.
- If there is a flaw, then flaw must be cured and you will have unchallenged right to property.
- Hamilton v McIntosh 1994 - dispute over ownership of land close to defenders factory. Dispute if land was acquired through true ownership or prescription. This claim had to be justifed. In first instance judge held that prescritpion had occured. Even when appealed held that precription occured over long period of time.
Registration of Title
- Method of orig Acquisition applies to registration of title in Land Register only not in Sasines.
- If a title in your favour is registered in LR then you have a good title. if you record a deed in your name in Sasines you will have a bad title and vulnerale to be challanged.
- In the LR itis hard to challenge your title. Rectification will only occur if you have acted in bad faith i.e. committed fraud
- Derivative Acquisition inc situations which are said to be voluntary/involuntary. Voluntary example - gift, transfer of sale.
- It is when you acquire title from somone else and your title is only as good as the persons title who is transferring it to you.
- However where is consent is required and transfer occurs anyway this is involuntary. For example - on death - this is involuntary as you may eb unaware of what you are doing. Sequestration - as all goods are given to trustee involuntarily.