Zusammenfassung der Ressource
DISPOSITIONS
- Main clauses and what they do
- standard form is a unilateral obligation
- runs inname of, is executed by grantor (disponer), alone
- Contains: inter alia - identification of the parties, consideration, identification of subjects
- entry clause, stating when disponee can enter into possession & warrandice clause - this warrants the title
- can be subdivided into narrative, dispositive, burdens, entry, warrandice, testing clause resctively
- NARRATIVE CLAUSE
- name and designation of grantor
- description of his/her status
- normally 'heritable proprietor of subjects hereinafter disponed'
- implies the grantor is registered owner
- grantor must have title and capacity
- if the disposition is to be effective as a title to disponee
- not necessary for land to fall within personal estate of grantor
- may hold property as trustee or some other representative capacity
- relevant to consider his powers e.g. as trustee
- for to effectively convey must be registered proprietor or have right to complete title
- example - 'I George Smith, heritable proprietor of heritable subjects and others hereinafter disponed, etc
- DISPOSITIVE CLAUSE
- divests seller of title and invests purchaser of title
- contains formal discription of property
- normal to end with following 3 clauses
- 1) the whole rights, parts privileges and pertinents relating to the subjects
- 2) the whole fixtures and fittings, therein and thereon
- 3 my whole right, title and interest, present and future, therein and thereto
- function of these catch all clauses, ensures respectively
- 1) purchaser acquires all rights to all property sold, also rights over neighbouring properties to enjoy property in full
- 2) sale includes buildings, fixtures, moveables which have built or acceded to the property, and all moveable fittings are included
- 3) whole rights of seller are transferred to the purchaser
- including future rights arising
- a full and unreserved divesting of the seller and investing of the purchaser
- BURDENS CLAUSE
- How and why burdens are imposed generally (including deeds of condition)
- contain contractual burdens which run with the land
- always with and under the burdens
- real conditions and others specified and contained in the said disposition in my favour
- in which any burdens or express servituteds are stated either by repitition in full or by reference to the documents which created them
- such inclusion doesnt cerify that they are still valid or applicable
- for these issues, purchasers solicitor must use his judgement
- ENTRY CLAUSE
- states actual date of entry and occupation of the disponee
- entry clause warrants entry to property at specific time
- usually on the date the price is payable
- Usual for this clause to state entry is given with vacant possession and actual occupation
- other words: no part of the property is subject to let or occupation by any other party
- WARRANDICE CLAUSE AND ITS THREE VARIATIONS
- Guarantee of title by predecessor is transmissable to new owner
- Warrandice clause follows on from obligation to give good and marketable title in the missives
- represents personal guarantee by disponer
- will indemnify disponee against any loss/damage in value
- disponees real right if there is complete or partial eviction from the property
- VARIATIONS
- 1) absolute warrandice
- unrestricted guarantee of title
- 2) fact and deed warrandice
- normally given by a trustee or executor
- they will not act prejudicially to the purchasers interests
- 3) simple warrandice
- guarantee grantor of disposition hasn't acted to prejudice guarantee
- normally used when property is being gifted
- TESTING CLAUSE
- purchaser completes, narrates place and date of signing of disposition
- records name and designation of witness(s)
- Reuquirements of Writing (Scotland) Act 1995
- s3(1) disposition by individual will be valid if signed by that individual
- the last page of any schedule or plan annexed)
- and same is witnessed by one witness to the signing
- SPECIAL DESTINATION INCLUDING SURVIVORSHIP AND ITS PROBLEMS
- disposition to A and B and survivor
- immediate conveyance of one half pro indivisio share to each of them
- coupled - substition of the survivor of them to succeed as substitute to one half pro indiviso vested originally in predeceaser
- historically title in joint names between husband & wife
- practitioners inserted survivorship clause
- survivorship destination is contractual
- cannot be evacuated by will or other testamentary writing
- Perrett's Trustees v Perrett
- survivorship clauses has no effect on the half of the property which is not conveyed
- number of awkward and sad family situations
- survivorship destination resulted in bizarre outcome
- never intended by the parties
- typcally occurs where parties separate or divorce
- matrimonial home taken in survivorship destination, then divorce
- wife conveyed her pro indivisio one haflf share & husband then dies
- held: disposition restricted in terms to wifes one half pro indivision
- result wife entitled to succeed husbands original share
- Gardiners Exor v Raeburn
- Following separation parties agreed inter alia to sell matrimonial home
- title in both names and survivor
- under agreement both relinquished rights of succession in each others estates
- held the agreement impliedly waived normal prohibition against conviction
- Redfern's Exors v Redfern
- husband, wife & survivor, husband sequestrated & died
- held wife to husbands one half share, subject to his debts
- Flemings Trustees v Fleming
- overruled Barclays Bank v McGreish
- special destination was held to be debt free