Property Law Past Paper with Model Answers 2019/2020
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Course
Property Law (LAW08118)
Institution
Edinburgh Napier University (ENU)
This document provides model answers to 3 questions taken from the 2019/2020 past paper for the Property Law module. Author achieved a first class grade for the module.
With reference to case-law, write short notes on each of the following:
a) Comixtio and confusio;
b) The right of a tenant to remove trade fixtures;
c) Access rights under the Land Reform (Scotland) Act 2003;
d) The different categories of property which exist in Scots law.
25 marks for each part. Total 100 marks.
Model Answer
Part (a)
Comixtio refers to a situation where two different people own a solid and the become mixed
together and they are inseparable and indistinguishable. This may be, for example, where one
person’s sheep may become mixed with another person’s sheep. If the sheep have identifying
marks on them in any manner, then they may be distinguishable, therefore comixtio does not
operate.
Confusio, on the other hand, refers to a situation where two different people own a liquid
which ultimately gets mixed together and of course become inseparable from one another.
Where either of the two forms operate, the resulting property is in common ownership
according to the proportional shares or values of the constituent parts. If, for example, the
both individuals owned an equal amount of sheep that were mixed, then both would now own
one-half pro indiviso share of the sheep. Where the mixture of two liquids occur, on the other
hand, it may be that both will not be in common ownership. In the case of Tyzack & Braefoot
SteamShip Co v JS Sandeman & Sons, it was held that if one party is at fault for the mixture
occurring, then the other party owns the whole lot. The materials which have been mixed
, together must be of the same kind, otherwise this form of acquisition would not be present
and could potentially result in specification or accession. As Professor Carey Miller suggests
that soda water mixed with whisky will accede to it for example.
Part (b)
The right of a tenant to remove trade fixtures is an exception which may occur under the
original acquisition known as ‘accession’. If a tenant installs an item of property on their
rented premises that they use for their business, they are entitled to take it out and in
contrast to the normal rule if you remove a trade fixture, ownership does revert to you. The
property must be attached to the property by the tenant for the purposes of the tenant’s
trade. This right lasts throughout the length of the lease, not only at the conclusion of the
lease. The tenancy will end, and the tenant will have reasonable leeway to remove any trade
fixtures and they will still get ownership back. If you take out a trade fixture which you
installed, you need to put the rental property back into its pre-accession position.
This was examined in the case of David Boswell Ltd v William Cook Engineering Ltd. this case
involved a supplier of machinery suing the defenders because they were worried the
defenders were not paying for the machinery and the pursuers wanted their goods back
because they were worried that the defenders would not have the resources to pay for the
machinery. They raised an action for the return of the machinery. One strand of William
Cook’s defense was that they operated from rented premises and the machinery that they
provided had acceded to those rental premises and so the machinery did not belong to
William Cook, they belonged to their landlord. The pursuers pointed out that they are trade
fixtures, you are entitled to remove them, the defenders said that they could only remove the
trade fixtures at the end of the lease so they cannot supply them at the moment.
However, the court disagreed. They said that the right to remove trade fixtures arises at any
stage of the lease, not only the end, so there was no obstacle preventing the defenders from
uninstalling the machinery and thus giving them the ability to return the machinery to the
pursuers. This is not to say that accession did not occur, but the tenant is entitled to remove
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