Law of Property Handout PDF

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UNIVERSITY OF ABERDEEN SESSION 2019-2020

SCHOOL OF LAW

PROPERTY LAW LS2031

General Information Course Title/Code Credit Rating

Property Law LS2031

15 Credits

Please note that if you are taking this course as part of the LLB Law with English Law or associated variant, and if you are found to have committed academic misconduct, this will be reported to the English regulator. Such findings can also have professional implications for students on other degrees. Course Team and Examiners Course Co-ordinator Dr Andrew Simpson [email protected] 01224 27 3847 Lecturers:

Dr Douglas Bain ([email protected]) Mr Malcolm Combe ([email protected]) Dr Titilayo Adebola ([email protected])

Tutors:

TBC

External Examiner:

Dr Daniel Carr, University of Edinburgh

MyTimetable – Students will be able to access MyTimetable once they have completed their registration of courses through MyCurriculum Students' Infohub | The University of Aberdeen Students requiring assistance with their course selections should see the Duty Registry Officer in the InfoHub. Students requiring assistance because of timetable issues with a course should contact the relevant School. Lectures/Seminars/Workshops - 33 lectures (three per week over eleven weeks) delivered on Mondays, Tuesdays and Thursdays as follows: MONDAY at 09.00 at MT1 TUESDAY at 13.00 at MT1 THURSDAY at 16.00 at Arts LT Tutorials - There will be three, fortnightly tutorial cycles. Further details will be given during the first week of lectures. • • •

Tutorial no 1 runs in the fortnight beginning Monday 14 October. Tutorial no 2 in the fortnight beginning Monday 28 October. Tutorial no 3 in the fortnight beginning Monday 11 November.

The tutorial scenarios are to be found at the back of this handout. Attendance You are reminded that you are obliged to take responsibility for attending ALL of your scheduled learning sessions, you can find them by consulting MyTimetable.

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This course has three or fewer scheduled sessions therefore we will regard the missing of even one such session as immediately meriting a C6. You should also note that if you receive a C6 which is later lifted by the Law Monitoring Team, ANY FURTHER ABSENCE WILL RESULT IN AN AUTOMATIC C7 FOR THAT COURSE. This automatic C7 reflects the assumption that by missing yet another scheduled session you will not be capable of meeting the learning outcomes of the given course. Please refer to the Information for Law Students handout, this can be found on MyAberdeen – Levels 1-4. Tutorial group alterations The changing of tutorial groups should not be done except in exceptional circumstances and never without the relevant permissions. If you must change your tutorial group, you must go to the Law School Reception to make this change. Please note: Failure to attend compulsory components of a course may lead to the loss of a class certificate, for further details please see section 4.7 of the Information for Law Students Guide. Class Certificates If you attend and complete the work required for a course, you will be considered to have been awarded a ‘Class Certificate’. Being in possession of a valid Class Certificate for a course entitles you to sit the examination(s) for that course. For level 1-3 courses class certificates are valid for two years and permit a total of three attempts at the required assessment within the two year period i.e. the first attempt plus up to two re-sits. Through non-attendance or a failure to submit coursework, it is possible to lose your class certificate and therefore, your right to sit an exam. Although it is possible to appeal Appeals and Complaints | Students' Infohub | The University of Aberdeen against the loss of a class certificate, an appeal will be unsuccessful if the intended learning outcomes of a course can no longer be met, as may be the case if classes have been missed. It is important to remember, in other words, that there is more to completing a course than passing an exam or completing an assessment. Further information on the attendance requirements for your programme/course Institution Content: Policies – Blackboard Learn Assessment A formative multiple choice test will be released through MyAberdeen at the beginning of the sixth week of teaching (the week commencing 14 October). All students will be asked to complete this by the end of that week (i.e. by 21 October). Feedback will be provided immediately online. Degree Examination A two-hour closed-book exam paper in December made up of separate sections, covering materials from the whole syllabus, counting for 100% of the CGS mark. Section A will comprise a pre-seen question, which all students must attempt. The pre-seen question can draw on materials from the entire course. The pre-seen question will be posted in the MyAberdeen during the revision week and will have to be answered during the exam (i.e. it is not a take-home question). In addition to this pre-seen question, students will be required to answer two questions from a further section. These questions will be more succinct than the pre-seen question and students will require to manage time in the exam accordingly. The pre-seen element counts for 50% of the final mark. The unseen element similarly counts for 50% of the final mark.

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The exam in the re-sit diet similarly counts for 100% of the CGS mark (with a pre-seen element counting for 50% of the final mark). Erasmus students are permitted to consult non-electronic language dictionaries. The use of unauthorised materials in exams is a University disciplinary offence. In exams please write legibly in ink. easily legible.

Marks may be deducted for handwriting which is not

Revision Classes – TBC A class prize will be awarded to the student who achieves the best overall result in the degree examination. The prize is sponsored by the law firm Shepherd + Wedderburn LLP and consists of a cash prize of £500. Details of prizes can be found at: Endowed Prizes and Medals Assessment and the Introduction of the Common Grading Scale The Common Grading Scale in full, with associated detailed descriptors, is available at: Common Grading Scale (CGS) | StaffNet | The University of Aberdeen Common Grading Scale (CGS) | Students' Infohub | The University of Aberdeen Re-sits Students who fail, or who fail to attend or complete, a cour se for whatever reason and who wish to be awarded credit for the relevant course will be required to re-sit at the next available diet In order to be eligible to take a re-sit, a candidate must hold a valid class certificate. The validity of a class certificate is limited to the academic year in which it is awarded and to the academic year immediately following. Students holding a valid class certificate are normally permitted a total of three opportunities of assessment within this period.

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Administrative Information Institutional Policies Students are asked to make themselves familiar with the information on key institutional policies which been made available within MyAberdeen – Institutional Policies. These policies are relevant to all students and will be useful to you throughout your studies. They contain important information and address issues such as what to do if you are absent, how to raise an appeal or a complaint and indicate how seriously the University takes your feedback. These institutional policies should be read in conjunction with this programme and/or course handbook, in which School and College specific policies are detailed. Further information can be found on the University¹s Infohub webpage or by visiting the Infohub. The information included in the institutional area for 2019/20 includes the following: · · · · · · · · · ·

Absence Appeals & Complaints Student Discipline Class Certificates MyAberdeen Originality Checking Feedback Communication Graduate Attributes The Co-Curriculum

Law School Policies Information on Law School Policies can be found in The Information for Law Students Guide 2019-2020. This includes information concerning class performance and refusal of class certificates, class representatives, evaluation forms, School’s Code of Practice on Continuous Assessment and Submission of Assignments. Pastoral Support/Academic Difficulty: if you are experiencing difficulties with the course you should contact your tutor or the course organiser. You should also consider contacting your personal tutor. Ideally, such matters should be engaged with as soon as possible. Academic Content Statement of Aims and Intended Learning Outcomes (1) Aims of the Course This course builds upon the introduction to key property concepts provided in Foundations of Private Law in order to provide students with a broad knowledge of the key features of the system of heritable and moveable property ownership in contemporary Scots law. In particular, it analyses: the meaning of property; the main consequences of the distinction between heritable and moveable property; the fundamental distinction between real and personal rights; the distinction between ownership and the more factual condition of possession; the nature, content and limitations on ownership; the most important original and derivative modes of acquisition of ownership (including registration of heritable property); the basic characteristics of co-ownership; the law of the tenement; the law of servitudes; leases; securities; and the basic concepts of intellectual property law. (2) Intended Learning Outcomes By the end of the course the student should be able to acquire and develop the following knowledge, understandings and skills:5

Knowledge and Understanding: Students should know and understand the core principles of the Scots law of property, including:• • • • • • • • • • •

The classification of property as heritable and moveable, corporeal and incorporeal; The distinction between real rights and personal rights; Ownership of property, including joint or common ownership; The law of leases; Title conditions (servitudes and real burdens); Rights in security; Original and derivative modes of acquisition of ownership of different types of property; Ranking of real rights; Extinction of real rights; The core features of intellectual property law Human Rights, freedoms and protections shall be considered where relevant.

Key skills: Throughout the course, students should learn: • •

How to analyse the facts of a problem case and apply same to legal concepts in order to identify the legal rights and liabilities of the persons involved. How to synthesise, analyse and apply the substantive material covered in the course and how to critically analyse aspects of that material.

Key Skills (Transferable): • • • •

How to listen to lectures and to read other materials in such a way as to understand the core concepts involved; Intellectual skills for learning and understanding, defining issues, conducting analysis and reaching conclusions; How to communicate effectively and coherently, both orally and in writing; How to present and justify analysis by reference to objective sources

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READING AND REFERENCE LIST The primary text is Gretton, G. L. and Steven, A. J. M., Property, Trusts and Succession (3rd edition, 2017). Recourse can also be made to: • • •

Stair Memorial Encyclopaedia, Volume 18 (also published as Reid K. G. C., The Law of Property in Scotland (1996)) [heavy demand. Also accessible via LexisNexis] The Rt Hon Lord Eassie and H. L. MacQueen (eds)., Gloag and Henderson The Law of Scotland, 14 ed. (2017) Part VI Carey Miller D.L. with Irvine D., Corporeal Moveables in Scots Law (2nd ed, 2005)

Additional • • • • • • • • •

Paisley R., Land Law (2000) Gordon W.M. and Wortley S., Scottish Land Law 3 ed. Vol 1 (2009) (a supplement to this text is also available, but not referred to in this handout) Stair: Institutions, (1981 ed.), II. 1, passim Erskine: Institutes, (1871 ed.), 11.1 & 2 Bell: Principles, (1899 ed.), 1470 - 1505 Smith T.B., A Short Commentary on the Law of Scotland (1962) 459ff. Waelde et al, Contemporary IP Law and Policy (4th edn 2016) Cornwell “Intellectual Property” in Black, Business Law in Scotland (3rd edn 2015) Combe M M, Commercial Law Essentials (2013, 2 nd edn) (the chapters on rights in security, sale of goods and intellectual property only)

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TIMETABLE

1.

Mon. 9 Sept

AS

General course intro – overview, texts, tutorials, assessment

2.

Tue. 11 Sept

AS

Rights and Things/ Possession

3.

Thu. 12 Sept

4.

Mon. 16 Sept

5.

Tue. 17 Sept

6.

Thu. 19 Sept

DB

Common Property and Joint Property

7.

Mon 23 Sept

8.

Tue 24 Sept

MC

Limits on ownership – by law and paction; Nuisance

9. 10. 11. 12. 13.

Thu 26 Sept Mon 30 Sept Tue 1 Oct Thu 3 Oct Mon 7 Oct

MC MC MC MC

Access to land Original acquisition (occupatio (cf treasure trove), accessio, specificatio, commixtio/confusio)

AS

14. 15.

Tue 8 Oct Thu 10 Oct

Prescription AND a short introduction to Land Registration

DB

Intro to Derivative acquisition

16.

Mon 14 Oct

DB

17.

Tue 16 Oct

Derivative Acquisition: general principles and heritable property *NO LECTURE * – Reading Week

18. 19. 20.

Thu 18 Oct Mon 21 Oct Tue 22 Oct

DB DB

21. 22.

Thu 23 Oct Mon 28 Oct

MC TA

*NO LECTURE * - Reading Week Derivative Acquisition: immoveables Derivative Acquisition: moveables and defective transfer Land Reform Intellectual Property (IP)

23.

Tues 29 Oct

TA

IP

24.

Thu 30 Oct

TA

IP

25.

Mon 4 Nov

TA

IP

26.

Tue 5 Nov

TA

IP

27. 28. 29. 30.

Thu 7 Nov Mon 11 Nov Tue 12 Nov Thu 14 Nov

MC MC MC DB

Securities Securities Securities Leases

31.

Mon 18 Nov

DB

Leases

32.

Tue 19 Nov

AS

Title Conditions

33.

Thu 21 Nov

AS

Title Conditions

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CONTENT OF LECTURES 1.

Things and Rights Lecturer: Andrew Simpson

Reid, Stair Memorial Encyclopaedia, Vol. 18 par 1-2; 11-14; 16; 3-6. Gretton and Steven, Property, Trusts and Succession Chapters 1-2. Gretton, “Owning Rights and Things” 1997 Stellenbosch LR 176-180. Reid, “Obligations and Property: Exploring the Border” 1997 Acta Juridica 230-233. Scotland Act 1998 s 126(4). Introduction Note that s 126(4) of the Scotland Act 1998 (introducing devolution for Scotland) provides that references in that Act to Scots private law are to the following areas of the civil law of Scotland- ‘(d) the law of property (including heritable and moveable property, trusts and succession)…’ In Scotland property law is Civilian (Roman), albeit that it was heavily influenced by a Scottish variant of feudal legal principles for much of its history. The influence of these principles is now subsiding markedly following on from the abolition of feudal tenure by statute in 2004. Property law is concerned with things (res) and with the rights (jus, jura), which exist in respect of them. Scots property law is a unitary system, meaning that moveable and heritable property (see below) are largely governed by the same principles. Rights (1) Rights in things Rights directly in a thing ( ius in rem). Usually called a real right. Probably a fixed list: Principal real right Ownership ( dominium) Subordinate real rights ( iura in re aliena) Right in security Lease of land (but not hire of moveables; see further the lectures on leases below) Proper liferent (but not improper or trust liferent) Servitude Real burden (2) Rights against Persons Ius in personam, usually called a personal right. Some examples: Right in contract Right in delict Right in unjustified enrichment 9

Right of a beneficiary under a trust (3) What are the characteristics of a real right? Personal rights are enforceable against a particular person or determinate group of people; Real rights are in principle enforceable against ‘the world’/erga omnes. Things More usually called property Attempts at defining property (things) Main classifications of things Things may be either corporeal or incorporeal. See Erskine II 2 1. Incorporeal property = (i) rights (both personal and real) + (ii) some odds and ends e.g. gases, electricity. And since one has rights in things, it follows that one can have rights in rights (i.e. in incorporeal property). Example: A has a lease over land belonging to B. What right does B have in the land (corporeal property)? What right does A have in the land (corporeal property)? What right does A have in the lease (incorporeal property)? Thus A’s position can be expressed in this way: A has the real right of ‘ownership’ (Cf Gretton) in the lease, which is itself a subordinate real right in the land. The method of expressing A’s position will depend on which thing you are concerned with (i.e. the land or the lease). A lease is a real right. But personal rights are also incorporeal property. The only right, which is not to be considered property, is ownership. Thus one can ‘own’ (in the normal speech ‘have’ cf Gretton) a debt (based on contract or delict), or a right in security, but to say that one owns ownership itself is meaningless. Things may be either heritable (immoveable) or moveable (note the Scots spelling with the letter e occurring twice, rather than “movable”). See Erskine II 2 2ff. “Heritable” derives from “that which goes to the heir.” Formerly, in Scotland, land could not be bequeathed in a will, and the rules of primogeniture and male preference in succession meant that land and related property went to the oldest male son. Primogeniture and male preference in succession to heritage were to remain the rule in intestate succession until the Succession (Scotland) Act 1964 (c 41) reformed the law. Heritage could not be bequeathed by means of testamentary writings until the Titles to Lands Consolidation (Scotland) Act 1868 (c 101). ‘Heritage’ as a term, is therefore now redundant, and some modern writers (see e.g. Gordon and Wortley, Scottish Land Law (3rd ed)) prefer to use ‘immoveables’ instead. Why is the heritable/moveable distinction important? ➢

➢

The heritable/moveable distinction may be relevant in the context of succession because the estate of a deceased person is broken down into the two categories in order to work out important statutory rights in respect of the distribution of the estate. The distinction is also relevant in the context of the transfer of heritable property (and note in principle various moveable things may be heritable by destination, 10

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consider the concept of ‘accessory things’, e.g. the ash box which ‘belongs to’ a fireplace.) Note that someone buying a house will automatically get the “fixtures” but will need to contract for the “fittings”

Thus there are four classes of things: (1)

Corporeal heritable property Land, and things that form part of land ( partes soli) either naturally (e.g. soil, minerals and stones) or by accession (see infra)

(2)

Corporeal moveable property – all other corporeal property.

(3)

Incorporeal heritable property Two categories: (i) ‘all rights ...