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This scenario sees Hamish face several different problems regarding his property with both his neighbours and the previous owners of the property. The problems I have identified are the required license for the restaurant he owns, the actions of the previous owners, the crack in the wall of Gina’s flat, the bill for the foundations of the tenement and Hamish’s neighbours using his path.

Although it is expressly mentioned that the previous owners used the bottom floor premises as an antiques shop and that Hamish has the intention to open a restaurant in said premises, it is unclear whether or not he has the appropriate licensing permission to do so. The running of a restaurant requires countless licenses from the government from playing background music to selling alcoholic drinks1. Hamish’s intention of also providing an outdoor eating area would need further permission. Having food premises situated at the bottom of a tenement building has in the past, in Scots law, caused problems. For example in the encroachment case of Anderson v Brattisani’s2, a chip shop on a ground floor of a tenement encroached on its neighbour’s property as they were required by health and safety to have a pipe running up the side of the building to get rid of grease.

The second, and arguably most important, problem faced by Hamish is that of the previous owners claiming ownership of the panelling, curtains and poles, display cabinet and gazebo. Upon moving into the new premises Hamish was pleased with the décor as he felt it was perfect for the restaurant he intended to open. To his surprise the previous owners returned to remove the above items and after confirming with his solicitor that when he purchased the premises he bought it with all ‘parts and pertinents’, meaning that certain objects did actually belong to him. In a property dispute it is vital to classify the property 1 UK Government, 'What would you like to do? - Licence finder' accessed 6 November 2016 2 Anderson v Brattisani’s, 1978 SLT (Notes) 42

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itself to determine several issues – who owns the property, what rights the owner has and how the owner could transfer that property. The curtains and the painted panels, depending on how firmly they were attached to the wooden frames3, are moveable so would belong to the previous owners. However, the curtain poles, the wooden frames holding the wooden panelling and possibly the gazebo could be regarded as fixtures of the property. A fixture is something that becomes fixed to the land or a building, the curtain poles would fall into this category as the problem states they have been ‘bolted on to the walls’ and the panelling because it is ’stretched over wooden frames attached to the walls’. To determine whether or not an object is a fixture, a three stage test is applied. The questions asked are the extent of the degree of annexation, the functional subordination and the permanency of the object. In Brand’s Trs v Brand’s Trs4 Lord Chelmsford defined fixtures as ‘anything annexed to the freehold… fastened to or connected with it’. He goes on to state that anything that is a fixture in relation to a property becomes a part of the property, meaning that the curtain poles and the wooden frames would belong to Hamish. It is not clarified how large the gazebo in question is, but as it was intended to be used as an outdoor eating area it could be assumed that it is large and heavy enough to have difficulty moving. Specification applies when a new thing is created using existing things owned by more than one person and has three requirements – that a new item has been created, the process must be irreversible and that the maker of the new object was doing so in good faith5. Although a whole new object has not been created, the restoration satisfies the other two requirements for

3 If they were bolted on it can be assumed that they are a part of the wooden frames so would go with them, however if they were just hanging on top of the frames they would be moveable and could be taken by the previous owners 4 Brand’s Trs v Brand’s Trs (1876) 3 R (HL) 16 5 MacDonald v Provan (of Scotland Street) Ltd, 1960 S.L.T 231

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specification. It would be possible for the previous owners to claim compensation for the gazebo on the basis of unjustified enrichment6.

It is unclear how the previous owners were able to remove the display cabinet – it is noted that as it is so big it could have required the use of a crane and the removal of the large front window. If it was Hamish attempting to move the cabinet and it required the use of a crane, he would be permitted from doing so under the Tenements (Scotland) Act 2004 as it states no owner is allowed to do anything that could, or is likely to, impair the ‘natural light enjoyed7’ by the other owners – it can be assumed that the use of a crane would definitely impair the natural light in some way. As the cabinet would be so heavy and difficult to move without removing the window, the same three stage test used for fixtures as above would be used. As it could not be removed with ease, it is fairly permanent and attached to the property. Therefore, it could be regarded as a fixture so Hamish would be the true owner of the cabinet.

Legally Hamish has a real right to these objects – this is the best right to have as your relationship is with the object in question and is not dependent on the party’s relationship with any other party. This right is enforceable against any person who challenges the existence of this right, as in Hamish’s case, if someone seizes possession of the object you have the real right of ownership of it. Erskine describes property ownership as ‘the right of using and disposing of a thing as our own’8. As Hamish is the rightful owner he could resolve 6 International Banking Corporation v Ferguson Shaw and Sons, 1910 S.C 182 7 Tenements (Scotland) Act 2004 s9(1), ‘no owner or occupier of any part of a tenement shall be entitled to do anything in relation to that part which would, or would be reasonably likely to, impair to a material extent, (b) the natural light enjoyed by any part of the tenement building’ 8 Erskine: Inst., II, 2, 1

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this dispute with the previous owners in a number of ways – negotiation, mediation, arbitration, courts and tribunals.

However, if it was found that Hamish didn’t have ownership, he simply had possession of the objects, he would have a lesser right to it. He must have physical possession of them but more importantly, he must have the mental element to possession – he must have the intention to possess the objects. These elements would lead to a presumption of ownership so the previous owners would still have to prove that they were the true owners9.

In relation to the crack in the gable end wall belonging to Gina, the main question is who should be responsible for the cost of the maintenance required. The Tenement Management Scheme applies to all tenements unless there is already a provision made for decision making procedures in the title deeds, as there is nothing in the problem to suggest this it can be assumed that the Scheme will be in place. s8 of the Tenements (Scotland) Act10 covers the duty to maintain the property by providing support and shelter. It states that the owner of any part of the tenement building must maintain the supporting part to ensure that it is providing the support required11. However, if it would not be reasonable to do so, for example, if it was a particularly old building and the cost of the maintenance would be too high, she would not be obligated to have the maintenance carried out12. This duty could 9 Chief Constable of Strathclyde Police v Sharp 2002 SLT 10 Tenements (Scotland) Act 2004, s8 11 s8(1), ‘the owner of any part of a tenement building… a part that provides, or is intended to provide, support or shelter… shall maintain the supporting or sheltering part so as to ensure that it provides support or shelter’ 12 Tenements (Scotland) Act 2004 s8(2), ‘an owner shall not… be obliged to maintain any part of a tenement building if it would not be reasonable to do so’

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be enforced by any other owner of a flat in the tenement building if they would be directly affected by the breach of the duty13 – at this stage neither Hamish nor Harry would be directly affected by the crack in the wall, unless it proceeded to crack further down to the building to the wall of Harry’s flat – so they would not be able to enforce the duty of maintenance on Gina. If the breach of duty did directly affect them they could, without the agreement of Gina, do ‘anything that is necessary’ in order to comply with the above duty14. If they required access to Gina’s flat, assuming they had given her sufficient notice, to carry out maintenance15 or to carry out an inspection to determine whether maintenance is needed16, the Act would allow them to do so. If Gina did decide to fix the crack in the wall, under the Tenement Management Scheme, she would have the ability to recover the share of the cost of the maintenance from both Hamish and Harry as there is a common interest between them for the wall to be fixed17181920.

Harry would not have to pay the full cost of the repairs on the foundations for several reasons – he does not own the foundations, the work was carried out before he was a 13 s8(3), ‘the duty imposed… on an owner of a part of a tenement building may be enforced by any other such owner who is, or would be, directly affected by any breach of duty’ 14 s8(4), ‘where two or more persons own any such part of a tenement building… in common, any of them may, without the need for the agreement of the others, do anything that is necessary for the purpose of complying with the duty imposed by that subsection’ 15 s17(3)(b), ‘carrying out maintenance to any part of the tenement owned (whether solely or in common) by the person requiring access’ 16 s17(3)(c), ‘carrying out an inspection to determine whether it is necessary to carry out maintenance’ 17 Tenements (Scotland) Act 2004, s10(b), ‘where the management scheme which applies as respects the tenement provides for the maintenance of that part’ 18 Sched 11 4.1(a), ‘any costs arising from any maintenance or inspection of scheme property where the maintenance or inspection is in pursuance of, or authorised by, a scheme decision’ 19 Sched 11 4.1(b), ‘any remuneration payable to a person appointed to manage the carrying out of such maintenance as mentioned in (a) 20 Hunter v Tindale 2012 S.L.T (Sh Ct) 2

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tenant and there is a common interest in the foundations. As it is Hamish who owns both the bottom floor, used as a restaurant, and the next flat above that, he has ownership of the foundations21. If Hamish had ownership of the property at the time of the repairs being carried out he would be liable for the cost. As the work was done before Harry lived in the premises he would not have to pay the cost, the previous owner does not avoid liability of costs just by selling the property22. If Harry did decide to pay the cost of the repair he would be entitled to compensation from the previous owners for the cost23. The theory of common interest is relevant in this case as it is of common interest to all tenants of the building that there are no problems with the foundations and any repairs are properly carried out and paid for – if the foundations are damaged it could lead to damages in the whole building. Following that presumption, any cost of maintenance to the foundations should be shared equally between the tenants24. The final problem faced by Hamish is his neighbours using the path and storing their bins in the garden. The problem tells us that the garden is owned by Hamish and this is supported by the 2004 Act25, however the same section allows his neighbours to use the path26. In relation to his neighbours storing their bins on his garden grounds he could argue that they are encroaching on his property27. No matter how minor the encroachment is a delict is still committed and Hamish has several options to remedy the problem. An interdict 21 s(4), ‘a bottom flat extends to and includes the solum under that flat’ 22 s12(1), ‘any owner who is liable for any relevant costs shall not, by virtue of ceasing to be such an owner, cease to be liable for those costs’ 23 s12(5), ‘where a new owner pays any relevant costs for which a former owner of the flat is liable, the new owner may recover the amount so paid from the former owner’ 24 Tenements (Scotland) Act 2004, Sched 11 4.2(a), ‘those costs are shared among the owners in the proportions in which the owners share ownership of that property’ 25 s3(3), ‘any land… pertaining to a tenement shall attach as a pertinent to the bottom flat most nearly adjacent to the land’ 26 s3(3), re the above subsection, ‘shall not apply to any part which constitutes a path… affording access to any sector other than that flat’ 27 Scott v Law (1987) Paisley and Cusine Unreported Cases 21

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would have been possible had the previous owner of Hamish’s flat sought it, as an interdict must be sought straight away as a preventative measure and as the neighbours have been using the garden for years it would no longer be available to him. The best remedy for Hamish would be a self help remedy. This must be given careful thought but as it is only bins to be removed, not any part of a tree28, which is common and would have to be felled with the encroachers permission, they can be easily removed and returned to his neighbours. It could also be classed as a nuisance, with this theory the fact that the nuisance existed before the owner bought the property, and the owner possibly even being aware of it at the time of purchase, is no defence for the neighbours29. In regards to a nuisance Hamish could seek a remedy of damages, however it would be dependent on the circumstances of the case30.

In conclusion, Hamish has been advised on each of his problems. He would need to ensure that he has the correct licensing required for his restaurant, he would be able to keep the curtain poles, the wooden panelling, the cabinet and the gazebo under the ‘all parts and pertinents’ clause in the sale, all three owners would be liable for the cost of the crack in the gable end wall, the cost of the foundations should be covered by the previous tenants or by the current tenants equally and Hamish should seek a remedy for either encroachment or nuisance regarding his neighbours’ bins.

28 Hetherington v Galt (1905) 7 F 706 29 Fleming v Hislop (1886) 13 R (HL) 43 30 Rank Hovis McDougall v Strathclyde Regional Council 1985 SC (HL) 17

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Bibliography Primary sources Cases: Anderson v Brattisani’s, 1978 SLT (Notes) 42 Brand’s Trs v Brand’s Trs (1876) 3 R (HL) 16 MacDonald v Provan (of Scotland Street) Ltd, 1960 S.L.T 231 International Banking Corporation v Ferguson Shaw and Sons, 1910 S.C 182 Chief Constable of Strathclyde Police v Sharp 2002 SLT Hunter v Tindale 2012 S.L.T (Sh Ct) 2 Scott v Law (1987) Paisley and Cusine Unreported Cases 21 Hetherington v Galt (1905) 7 F 706 Fleming v Hislop (1886) 13 R (HL) 43 Rank Hovis McDougall v Strathclyde Regional Council 1985 SC (HL) 17 Statutes: Tenements (Scotland) Act 2004 Secondary sources Books: Gretton L and Steven J M, Property, Trusts and Succession (2nd edn, Bloomsbury 2016) Guthrie T, Scottish Property Law (2nd edn, Tottel Publishing 2005) Reid, The Law of Property in Scotland (1st edn, Butterworths 1996) Websites: UK Government, 'What would you like to do? - Licence finder' accessed 6 November 2016...