Lecture notes
Property Law - Lecture 3 - Co-ownership
- Module
- Property Law (LAW08118)
- Institution
- Edinburgh Napier University (ENU)
Lecture notes for property law with case descriptions. Author achieved a first-class grade in the module.
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Lecture 3 – Co-ownershipIntroduction
• A piece of property can be owned by more than one person. On the land register, both names
will appear on the proprietorship section of the title sheet. Each owns everything. This is
known as co-ownership, or pro indiviso ownership.
• There are two types of co-ownership: common ownership and joint ownership, of which
common ownership is the more common.
• The main examples of common ownership are spouses of matrimonial property and the
ownership of common parts of tenement flats, such as the stair, close and drying green.
• In common ownership each party has a pro indiviso shares. The legal presumption is that
shares are equal, but other arrangements are equally possible.
Common Property
• The is no limit to the number of co-owners. Shares of common property may be uneven. It is
common that people own one type of property in different proportions. Common property is
largely dealt with under common law and it has developed a set of rules to deal with situations
where there is a dispute between co-owners of property.
• Every co-owner has the right to make ordinary use of the entire property regardless of their
proportionate share, but co-owners remain free to agree on exclusive areas of the property
between themselves.
• These common law rules deal with common property other than tenement buildings. Cases
dealing with tenements under these rules occurred prior to the Tenements (Scotland) Act
2004.
Alterations and Repairs
If a co-owner wants to make repairs or alterations of common property, before they can go ahead,
the general rule is that they require the consent of all the other co-owners. Repairs and alterations
require unanimous agreement:
Rafique v Amin 1997 SLT 1385
A dispute between the co-owners of a two-storey building which had a restaurant on one storey and
residential property on another. There were various alterations being made to the restaurant to which
the co-owner was not happy about the alterations going on. They went to court for an interdict to
stop the alterations from happening. The restaurant owner argued against the interdict by saying
partly that some of things that they were doing was so trivial that the court should just not bother
imposing an interdict. The work was sufficiently small scale that the works weren’t causing any harm
because it’s so minor. Secondly, one of the things the defender wanted to do was to use the stairwell
as a fire escape. He contended that the use of the stair as a fire escape for the restaurant was ordinary
use of the property and the pursuer could not object validly.
, The action was partially successful only. The defender was successful in the sense that the court
decided that using a stairwell as a fire escape was an ordinary use so it should not be interdicted
against and some of the alterations were trivial to warrant granting the interdict against them. The
argument that this is such a trivial matter that the court should not be concerned with it. In relation
to some of the other works, there needs to be evidence to see if it would be disruptive.
Necessary Repairs
• There is an exception to the rule where there are necessary repairs which require to be carried
out.
‘Necessary repairs may be carried out by any one proprietor, and costs may be recovered pro
rata (in proportion). Bell: Principles 1075.
• If one co-owner does repairs which are necessary to be done, they can go around the other
co-owners and get their share of the costs according to the extent of the other co-owner’s
ownership.
• Deans v Wolfson 1922 SC 221
An external staircase burnt down, and one co-owner wanted it to be built but the other co-
owner was less happy about that proposition. The court deemed it to be a necessary repair,
in other words, the rebuild was allowed to go ahead and was held entitled to recover the share
of costs from the other co-owner.
• Homecare Contracts (Scotland) Ltd v Scottish Midland Co-operative Society Ltd. 1999 GWD
23-1111
Use of Common Property
• Where there is agreement of all the co-owners, any use of the property is possible.
• Where there is no such agreement, rules apply:
• The co-owner may use all parts of the property – the owner of a ground floor flat is a co-
owner of the passageway stair and is such is perfectly entitled to use the stair up until the
top floor even though it is irrelevant since they live on the ground floor.
• Only ‘ordinary’ uses are permitted. A drying green outside the back of the tenements, its
ordinary use is to hang out your washing, the co-owner may not be use it as a market
garden. If the other co-owners did not want that to happen, they could eject.
• Carmichael v Simpson 1932 SLT (Sh Ct) 16
The defender lived in a flat within a big house that had been split into separate properties.
She used an invalid chair, basically an old-fashioned wheelchair, which was generally kept in
the front porch of the building which was in the co-ownership of her and the owners of the
other flats. Initially the storing of her chair was agreed with the other owners, but they
subsequently withdrew their cooperation and matters got to the point where the other co-
owners went to court seeking an order that the defender remove her chair from the porch on
the basis that this was not an ordinary use of the common property.
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