SCHOOL OF LAW

PROPERTY LAW (ORDINARY)

LAWS08133

Exam Date: 6 May 2019 From and To: 09:30 - 12:30

Please read full instructions before commencing writing

Exam paper information

• Candidates are required to answer ANY FOUR (4) questions.
• Each question is worth 25 marks.

Special instructions
• Candidates are permitted to bring into the examination hall an unmarked copy
of the Avizandum Statutes on Scots Property Trusts and Succession Law.

Special items
• None

Director of Examinations: Dr James Harrison

Course Organiser: Professor Kenneth Reid (Semester 1) & Dr. Daniel
Carr (Semester 2)
External Examiner: Dr Andrew Simpson, University of Aberdeen

This examination will be marked anonymously.

Page 1 of 7 TURN OVER

1. (A) Alice owns a house in Edinburgh; her title is registered in the Land
Register. Keen on wildlife, Alice goes on safari for three months. While
she is away, Barbara breaks into Alice’s house and, pretending to be
Alice, proceeds to sell the house to Calum. On the agreed date of
settlement, Calum pays the purchase price to Barbara in exchange for
delivery of the disposition. Barbara disappears with the money and is
never seen again. The disposition runs in Alice’s name and appears to
be subscribed by Alice and a witness (whose name and address are
given in the testing clause); but both signatures were forged by Barbara.
Unaware of any of this, Calum applies to the Land Register for
registration of the disposition. The application is accepted, and Calum’s
name is entered as owner in the B section of the title sheet in place of
Alice.

(a) Is the disposition validly executed? Is the disposition probative?

(b) Following registration of the disposition, who owns the house?

(c) What procedure is available to Alice (on her return from safari) to
have her name reinstated on the title sheet as owner, and how likely
is she to be successful?

[5 marks for each part, 15 marks in all]

(B) Duncan and Eilidh own neighbouring houses in Glasgow. Duncan’s

title is registered in the Land Register, registration having taken place
shortly before the designated day (8 December 2014). This was a first
registration. Eilidh has owned her house for many years and holds on a
disposition registered in the Register of Sasines. Eilidh is thinking of
selling her house. She finds out that a small triangular area of her back
garden was included by mistake in the title sheet of Duncan’s house.
The area lies on Eilidh’s side of the garden fence and she has continued
to possess and use it.

(d) What is the significance of the designated day?

[2 marks]

(e) Who owns the triangular area? Will Eilidh be able to have the area
removed from Duncan’s title sheet?

[8 marks]

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2. Anthea is a tenant of a shop on the ground floor of a tenement in Forfar.
The landlord is Bruce. Anthea’s lease is for thirty years and commenced
in 2015. The rent is £2500 per month. The lease has been registered in
the Books of Council and Session.

(a) Does Anthea have a real right of lease?

[3 marks]

Following recent storms, there has been water ingress into the shop.
Anthea consults a local contractor. He advises that fixing the problem
will cost £2000. The lease is silent on the question of repairs.

(b) Can Anthea require Bruce to pay the repair bill?

[5 marks]

The tenement in which the shop is located has four floors. It originally
had two shops on the ground floor and two flats on each of the upper
three floors. But the owner of one of the top-floor flats, Caroline, has
recently purchased the other top-floor flat and converted it and her
original flat into a single flat. Caroline wants the close to be painted. The
shops do not take access through the close. There is no relevant
provision in the title deeds of the tenement.

(c) How many of the flat-owners must agree before the re-painting can
go ahead? By what means is such agreement to be obtained? How,
precisely, will the cost of re-painting then be divided amongst the
flat-owners?

[12 marks]

An area of ground at the back of the tenement, which is co-owned by the

flat-owners, is subject to a long-established pedestrian public right of
way. Increasingly annoyed by noisy walkers, the flat-owners put up a
sign saying: “Private land. Trespassers will be prosecuted”.

(d) Advise a local councillor, who champions access rights, on whether

the flat-owners can be required to remove the sign.

[5 marks]

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3. Atlantic Estate is an up-market development of 50 detached houses built
in 2015 by Better Builders Ltd. As well as the attractive garden provided
for every house, there is also an extensive landscaped area which is co-
owned and used by the owners of the 50 houses.

(a) Is the landscaped area owned as joint property or as common

property?

[2 marks]

(b) Carol owns one of the houses in the Atlantic Estate development
and hence is a co-owner of the landscaped area. Can Carol –

• sell and transfer her pro indiviso share in the landscaped

area?
• grant a servitude over the landscaped area?
• fence off part of the area and use it for keeping hens?
• insist on the division, or division and sale, of the area?

[12 marks]

Carol grants a five-year lease of her house to Elle. Elle’s neighbour,

Fred, has three dogs. These bark regularly, disturbing Elle and her
chihuahua. On investigating the legal position, Elle finds out that the
Atlantic Estate development is subject to a deed of conditions which was
registered in the Land Register by Better Builders in 2015. This contains
numerous real burdens, which are declared to be community burdens,
with the community being the whole of the Atlantic Estate. One of the
burdens declares that the house-owners may not keep any animals,
except for one cat or one dog.

(c) Assess Elle’s prospects of using this burden so as to force Fred to

part with two of his three dogs.

[8 marks]

(d) The deed of conditions is silent on the management of the

landscaped area. Carol would like to have a factor appointed to
supervise regular maintenance. How many of the 50 owners would
have to agree to this before Carol could go ahead and make the
appointment?

[3 marks]

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4. Bruxelles Banque SA is a Belgian bank. It has recently opened a branch
in Edinburgh and seeks your advice on Scottish mortgage law. The bank
intends to offer loan finance to a Scottish company, Perthshire Plumbers
plc. The company’s headquarters comprise an office building and
adjacent land on the banks of a river.

(a) Advise the bank (i) on the form of deed to be used to obtain a
standard security over the headquarters of Perthshire Plumbers plc,
and (ii) on the steps necessary to ensure that the security would be
effective on the company’s insolvency. (Ignore the issue of how the
deed is to be executed.)

[8 marks]

(b) In the deed creating the standard security must a maximum amount
of debt be stated?

[3 marks]

(c) Could the standard security secure a non-monetary obligation?

[4 marks]

(d) Would it be necessary to obtain a court order to enforce the standard

security?

[5 marks]

Perthshire Plumbers plc goes from strength to strength. It is soon able to

repay the loan and have the standard security discharged. The company
decides to relocate and puts its headquarters on the market. Robert is a
prospective purchaser who seeks your advice.

(e) If Robert becomes the owner of the property, is he entitled to fish in

the river (which at the point at which it flows past the property is non-
tidal)?

[5 marks]

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5. Ian and John are neighbouring house-owners. They both bought their
houses from Macduff Estates in the 1990s. The houses are detached
and separated by a wall which straddles the boundary between them.
The respective dispositions of the houses, granted by Macduff Estates in
1991 (to Ian) and in 1993 (to John), contain a real burden preventing any
alteration of the houses, but do not state who can enforce the burden.

(a) If John altered his house to add a conservatory, would Ian have title
(as opposed to interest) to enforce the burden against him?

[8 marks]

(b) Is John entitled to increase the height of the wall on his side of the
boundary? (Assume that there are no relevant real burdens.)

[4 marks]

Drainage pipes from John’s house run underground through the garden
of Ian’s house. Accordingly, in the 1991 disposition (to Ian), Macduff
Estates reserved in favour of John’s (future) house a servitude right of
drainage, by means of a pipe, for waste water (ie water from the sinks,
bath and shower).

(c) Does the servitude allow John to send sewage along the pipe?

[4 marks]

(d) Suppose that sewage is not permitted by the servitude. Could John
apply to the Lands Tribunal to vary the servitude so that sewage can
now be sent?

[4 marks]

(e) Suppose no drainage servitude was expressly reserved in the 1991

disposition. Would such a servitude nevertheless have been
implied?

[5 marks]

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6. Peter’s dog is a sachenhund, a species hardly ever encountered in
Scotland (or anywhere else). Sachenhunds like exercise, and Peter
takes his sachenhund for a walk three times a day. His route invariably
takes him along a path at the side of a field belonging to Farmer Jones.
Farmer Jones dislikes dogs and challenges Peter’s right to bring the dog
on to his field.

(a) Assuming that the field is subject to public access rights under s 1 of
the Land Reform (Scotland) Act 2003, is Peter allowed to cross the
field with a dog?

Sachenhunds dislike shopping. So when Peter goes into a shop, he

leaves his dog tied to a lamppost outside. One day when Peter comes
out of a shop he finds that the dog is gone. Sachenhunds are valuable,
and Peter rightly suspects that the dog has been stolen. The thief is
Queenie. As sachenhunds like trains, Queenie takes the dog on the train
to the next town and sells her to Rab. Rab has no reason to suspect the
theft. His children are excited about the dog, and name her Senga.

(b) Who owns Senga?

To everyone’s surprise and delight, Senga turns out to be pregnant and

soon produces two puppies, Thomas and Ursula. For several weeks the
puppies are fed and nurtured by Rab before Ursula is sold to a
neighbour, Verena.

(c) Who owns Thomas? Who owns Ursula?

Rab plans to keep Thomas. Thomas, however, has other ideas and runs
away at the first opportunity. Guided by the special sachenhund whimper
(which, fortunately, is inaudible to others), Thomas tracks down the only
other sachenhunds in town – a set of three puppies belonging to
Warwick – and moves in. As sachenhund puppies look identical,
Warwick is unable to tell which of the four puppies is Thomas. Nor can
Rab tell when, having found out where Thomas has gone, he visits
Warwick’s house.

(d) Who owns Thomas?

Senga dies after many years of loyal service to Rab and his family. As a
momento, Rab arranges to have Senga’s teeth removed. Sachenhund
teeth are famously large and sharp, and Rab soon finds a use for them.
In order to discourage pigeons, and the neighbour’s cat, Rab arranges
the teeth in a row on the top of his garden wall and attaches them to the
wall by cement.

(e) Who owns the teeth?

[5 marks for each part, 25 marks in all]

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