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44736
DISPOSITIONS
Description
Mind Map on DISPOSITIONS, created by mary1503 on 12/04/2013.
Mind Map by
mary1503
, updated more than 1 year ago
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Created by
mary1503
over 11 years ago
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Resource summary
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
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