Property Law (Ordinary)

LAWS08133

MAY 2022

Director of Examinations: Dr Elisenda Casanas Adam

Course Organiser: Professor Andrew Steven
External Examiner: Dr Dot Reid

This examination will be marked anonymously.

Students are encouraged to read and follow all of the instructions. These will help you to complete
your take home examination and minimise difficulties when uploading your assessment.

If you have any questions or difficulties with submission, please contact the Undergraduate
Office by email as soon as possible: Law.UGO@ed.ac.uk

The mailbox will be monitored from 9:00am – 5:00pm BST Monday to Friday. We will liaise with the
Course Organiser on your behalf regarding any questions relating to the exam to ensure your
anonymity is retained.

The take home examination questions begin on page 3.

Method of Submission
All work will be submitted via LEARN (the University’s Virtual Learning Environment).
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If you need assistance in advance of submissions, please contact the Undergraduate Office. If
you have any problems submitting, please send your submission via email to the Undergraduate
Office (Law.UGO@ed.ac.uk). Your email must be received before the specified deadline or it will
not be accepted.

Students must use the cover sheet provided when submitting their answers. The cover sheet can
be found on the Assessment page in Learn.

Please make sure that you title your answer sheet following the convention: Student exam number,
questions answered, for example: B0123456_Q1_Q3_Q5

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Turnitin word count will count all words in the document, you should ignore this. Your word count
should be taken from your document using the word count for your answers only.

Page 1 of 8
Formatting your Examination
Your exam answer sheet (attached to the cover sheet) should be submitted in the following format:

Paper: A4 size, Portrait form

Font: Arial
Font size: 12
Line spacing: 1.5

It is your own responsibility to check that the above settings have been used when formatting your
work, as these settings may not be the default settings for your computer.

Penalties for Late Submission

Please note as this is a take home examination, any submissions after the deadline will be
considered as late submissions, and will not be accepted. It is your responsibility to submit
your exam before the deadline.

If you experience technical difficulties that prevent you from submitting your assessment, you
should email your completed work to Law.UGO@ed.ac.uk. This must be received before the
deadline. If you are unable to email us, please telephone on +44 (0)131 651 4550

To allow for any potential system delays or internet issues, you are strongly encouraged to
upload your completed work in advance of the deadline.

Extensions and Special Circumstances

It is not possible to request an extension for a take home examination.

If you experience technical difficulties that prevent you from submitting your assessment you
should email your completed work to Law.UGO@ed.ac.uk, your submission must be received
before the deadline to be accepted.

If you have experienced circumstances that have impacted the quality and/or your ability to
complete your work, you should apply for Special circumstances. We encourage you to get in
touch with your Personal Tutor or the Student Support Office (Law.SSO@ed.ac.uk) for advice and
support. Further information can be found at Extensions and Special Circumstances.

Academic Misconduct and Plagiarism

Students should be aware that as this is a take home examination, you are not expected to write
your response as you would a research essay; and therefore there is no need for a bibliography.
You should use references only to the extent you would do so in a traditional exam.

As in any exam, you should provide authority/sources (legislation/cases/institutional writers

perhaps) for any position you adopt/argument you make. You are required to identify a case or
legislation only in the usual format you would do under exam conditions. However, if you do use a
direct quote, you must attribute this to the author.

If you do use a footnote or reference, which you are not expected to do, then the words that you
use to cite that reference will not count towards your word limit.

You are expected and required to work independently on your examination script. Take home
exams are subject to the University’s Taught Assessment Regulations, and you should be aware
that collusion is a serious form of academic misconduct. Although the format is out of the ordinary,
you are required to adhere to good academic practice in approaching take home examinations.

Page 2 of 8
 The Take Home Examination

 Candidates are required to answer ANY FOUR (4) questions.

 Each question is worth 25 marks.
 This paper has a word limit of 3,500 words, and markers are instructed not to mark beyond
this number of words. Failure to declare an accurate word count may result in an Academic
Misconduct investigation.

Questions:

1. Peter is a farmer in Perthshire. His farm has been in his family for generations. The neighbouring
farm has recently been sold to Rachel. She complains to Peter that his sheep are straying on to her
land and that she intends to seek damages for trespass.

(a) Is Rachel likely to succeed in her action?

[4 marks]

Rachel also raises the issue that some of the boundary walls separating her land from Peter’s are in
a dilapidated state. She proposes to erect new boundary structures.

(b) Can Peter be compelled to pay a share of these?

[5 marks]

Peter is tired of Rachel and decides to sell the farm to Shaun. You investigate the title. It is still
registered in the Register of Sasines. There is only a general description of the farm in the
disposition in favour of Peter with no plan.

(c) How is the extent of the farm to be determined?

[4 marks]

A plan of the land is drawn up to be annexed to the disposition in favour of Shaun as the sale will
induce a first registration.

(d) How can the plan be incorporated into the disposition?

[4 marks]

(e) What are the general application conditions in respect of which Shaun needs to satisfy the
Keeper when applying to register the disposition?

[3 marks]

When Shaun moves in to the farm he is aghast to find that the summer house which was built in the
garden of the farm house has been removed by Peter.

(f) Can Shaun successfully demand the return of the summer house?
[5 marks]

Page 3 of 8
2. The Loch Reid Golf Club is located in rural Stirlingshire. It has 150 members. Every year they
compete for the best golfer award. The prize is a gold cup owned by the members engraved with the
names of winners. Tarquin is a disgruntled member. He has never won the cup and now proposes to
raise an action of division and sale so that he can get a share of its value.

(a) Will Tarquin’s action succeed?

[3 marks]

Tarquin decides that it would be easier to take the cup from its display unit one evening and sell it.
Vivian pays £1000 for it.

(b) Does Vivian become owner?

[4 marks]

(c) Would it make a difference to your answer to (b) if the cup were plain and not engraved?

[3 marks]

The club has other problems. A number of non-members have begun wandering across the golf
course and the greens in the evenings. In addition, Josie, who lives nearby is flying her kite on the
course as well as pitching a tent on it on a Friday night. When challenged all these individuals claim
that they are acting lawfully.

(d) Advise the club as to whether the conduct of the individuals is lawful.

[8 marks]

The club has been accessed by its members by foot and vehicle for over fifty years by a private road
across land which has recently been purchased by Naeema. But there is nothing about a right of
way over the land in either Naeema’s or the club’s titles.

(e) Can Naeema prevent access being taken over the road by the club members?

[4 marks]

(f) Would it make a difference to your answer to (e) if the club doubled its membership following
a recruitment campaign?

[3 marks]

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 3. Katie owns a hotel in the picturesque village of Hoswick. She enters negotiations to lease the hotel
to Moira at an agreed monthly rent. They reach agreement on every aspect of the lease apart from
its duration. In the meantime, Moira enters into possession of the hotel on 1 June 2022. She begins
trading as The Bruce Hotel and welcomes her first guests on 20 June 2022. Eventually, Katie and
Moira agree an ish of 31 May 2037, with rent reviews every five years. The lease includes a mutual
break option on 31 May 2030. The break option requires not less than forty days’ notice to be given
by either party. The lease is executed on 1 August 2022 and registered in the Books of Council and
Session on 10 August 2022.

(a) Has Moira obtained a real right of lease and, if so, when did she obtain it?

[6 marks]

One of the clauses of the lease states that “The parties hereto consent to registration hereof … for
preservation and execution”.

(b) What is the significance of this clause?

[3 marks]

Under Moira’s management, the Bruce Hotel is very successful and attracts tourists from all over the
world. Inspired by Moira’s example, Katie decides to open a shop in the neighbouring village of
Sandwick. She raises funds by taking a loan from Smith Bank. To secure the loan, the Bank requires
a first ranking standard security over the hotel.

(c) Could Katie grant a standard security over the hotel without obtaining Moira’s permission
first?
[5 marks]

It is now 1 March 2028. Katie informs Moira that a rent review is overdue. She proposes to raise the
rent by 10%. Moira is unhappy about this and says that Katie has “missed her chance” to review the
rent. In any event, Moira thinks that the proposed new rent is too high and suggests that 5% would
be more reasonable.

(d) Advise Katie.

[7 marks]

It is now 1 March 2030 and the rent review dispute has been resolved. Moira is beginning to tire of
rural life. She receives an offer from Alison, who wishes to purchase the lease. Katie, however,
would prefer to take over the hotel herself.

(e) What steps could Katie take to bring the lease to an end?
[4 marks]

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4. Charlotte agrees to buy a house in Haddington from Duncan for £250,000. They have not yet
committed their agreement to writing.

(a) Is the agreement enforceable?

[3 marks]

Charlotte and Duncan’s solicitors now conclude missives of sale with a date of entry on 1 July 2022.

(b) Who owns the house on the conclusion of missives?

[3 marks]

(c) If on 1 July 2022 Duncan fails to deliver a disposition to Charlotte on her paying the £250,000
what remedy does she have against Duncan?

[4 marks]

Duncan does deliver the disposition. Charlotte applies to the Keeper for registration but the Keeper
refuses to register the disposition. The reason is that on 1 June 2022 Duncan delivered a disposition
of the house to Emma which she presented for registration the same day. Emma’s application was
accepted and the title sheet updated to show her as owner.

(d) Why was the Keeper entitled to refuse Charlotte’s application?

[3 marks]

(e) What remedy if any does Charlotte have against (i) Duncan and (ii) Emma?

[7 marks]

(f) What should have been done by Charlotte or her solicitor to allow the application for
registration to have been accepted notwithstanding the registration of the disposition in
favour of Emma?

[5 marks]

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5. Jenniray Developments Ltd buys land near Aberdeen and intends to build houses on it. The land is
beside a river. The title sheet for the land is silent in relation to the minerals under the land and
fishing rights in the river.

(a) Is Jenniray Developments entitled to take the minerals from under the land?

[5 marks]

(b) Is Jenniray Developments entitled to grant a lease of the right to fish in the river?
[5 marks]

Jenniray Developments requires loan funding. The Bank of Rothiemay offers this in return for the grant
of a standard security over the land.

(c) Where will the standard security require to be registered to be effective in the event of the
company’s insolvency?

[5 marks]

Assume that the standard security is duly registered.

(d) If Jenniray Developments were to default on the loan, how would the bank enforce the
security?

[5 marks]

Jenniray Developments plans to build a bowling green along with the houses. A neighbouring
proprietor, Darren, offers to pay the company for a perpetual right in favour of him and his
successors as proprietors of the neighbouring land to play bowls on the green.

(e) Could such a right be validly created?

[5 marks]

Page 7 of 8
6. Sophie owns the top floor flat west at 42 Tayside Road, Pitlochry. The building has five floors. There
are two flats on each floor, one on the west side and one on the east side. All the flats take access
through the common stair. The titles are silent on ownership and there are no real burdens.

Sophie would like to develop the attic space above her flat to create an extra bedroom.

(a) Subject to obtaining relevant public consents, is Sophie entitled to do this?

[4 marks]

(b) Assume that she is entitled to develop the attic space. Could she also install a dormer
window into the roof to give the new bedroom natural light?

[4 marks]

(c) Will the development of the attic space affect the liability of Sophie’s flat for maintenance of
the roof above it?

[5 marks]

Imagine now that there is a real burden affecting Sophie’s flat. This was imposed in 1960 when the
tenement was built. It forbids any alterations but does not state who is entitled to enforce it. Cyril, the
owner of a ground floor flat, is opposed to Sophie’s development plans.

(d) Can Cyril successfully enforce the real burden against Sophie to prevent the development
which she is planning?
[9 marks]

Cyril is also unhappy about the fact that in 2015 Una, the owner of the top flat east, added a small
balcony outside one of her windows.

(e) Can Cyril successfully enforce the real burden against Una to make her remove the
balcony?

[3 marks]

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