762627
Co-ownership - Scotland
- Common
- COMMON V JOINT
- Nature of title
- Common- each has a pro indiviso or
undivided share in the whole subjects-
no need to be equal but must be
specified
- Joint- singe title held together -
owners cannot separately carry out
juristic acts
- Common- each has a pro indiviso or
undivided share in the whole subjects-
no need to be equal but must be
specified
- On death of co-owners
- (Because of separate shares) a.
survivorship clause b. no su.clause but
will c. no will - will fall under the law of
succession
- Shares absorbed by co-owners
- (Because of separate shares) a.
survivorship clause b. no su.clause but
will c. no will - will fall under the law of
succession
- Rules of management of property
- Specific rules
- Rules set out in trust deed - unless
unincorporated trust: will have a constitution
- Specific rules
- Nature of title
- COMMON V JOINT
- Joint
- use of common property
- common agreement between proprietors: any use
permitted - Bailey's Exrs v Upper Crathes Fishing
- No common agreement: a. each proprietor entitled to use whole of
property b. Only 'ordinary use permitted' Caramichael v Simpson
(stored wheelchare- ordinary use) Apps v Sinclair: right to have access
to the path - ordinary use: look at the natural use c. no excessive
benefit
- if a. is breached: recovery for the unlawful exclusive possession: Price v Watson: no remedy of
ejection as the title of the D will be the same of the pursuer- held: the proceedings should be
assisted in order to allow the bringing of an action for division and sale as the appropriate remedy in
the circumstances
- if a. is breached: recovery for the unlawful exclusive possession: Price v Watson: no remedy of
ejection as the title of the D will be the same of the pursuer- held: the proceedings should be
assisted in order to allow the bringing of an action for division and sale as the appropriate remedy in
the circumstances
- No common agreement: a. each proprietor entitled to use whole of
property b. Only 'ordinary use permitted' Caramichael v Simpson
(stored wheelchare- ordinary use) Apps v Sinclair: right to have access
to the path - ordinary use: look at the natural use c. no excessive
benefit
- common agreement between proprietors: any use
permitted - Bailey's Exrs v Upper Crathes Fishing
- alterations (= work improve the state of the property or
bring it down) and repairs (= cannot own the common
property)
- Anderson v Dalrymple: uncertainty- affects the
ownership of the walls of the passage and stair /
Rafique v Amin:practical difficulties - too liberal use of
common property --- * to bind the successors must be in writing
- if not agreed - interdict is possible
- if not agreed - interdict is possible
- Difference is not always clear in practice: McLay v Bennett and
Bennett: held: Carry our work in an elevator even if new- did not
require repair- could recover cost
- Repairs:
- consent of all is required
- necessary repairs may be carried out by any
proprietor and costs may be recovered pro rata
- Deans v Wolfson: approved the general principle of veto-
no need for the agreement of the co-proprietors
- consent of all is required
- Anderson v Dalrymple: uncertainty- affects the
ownership of the walls of the passage and stair /
Rafique v Amin:practical difficulties - too liberal use of
common property --- * to bind the successors must be in writing
- Getting out
- Transfer (of his/her own share)
- (physical) Division and sale
- Limits: a. contracting out b. Personal Bar c. Common interest
- Limits: a. contracting out b. Personal Bar c. Common interest
- Transfer (of his/her own share)
- matrimonial homes
- Family protection (Scotland) Act s,19 Crow v Crow:
occupancy right held not to cease on diveorce
- Family protection (Scotland) Act s,19 Crow v Crow:
occupancy right held not to cease on diveorce
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