Lecture 1 – Introduction to Property Law
The Nature of Property Law
Mixture of (mainly) Roman and Feudal Law
Derived mostly from Roman Law. There are also elements of feudal law still visible in Scot’s
property law. Feudal system was abolished around 20 years ago. There are still vestiges of
Feudal law still applicable.
Feudal law involved a hierarchy with the Crown at the top as the owner of all property which
was cascaded down to the people called Feudal Superiors and the bottom of the property
system were people called vassals. Feudal superiors were able to demand from others. You
own the property without superiors above you.
What is property?
Things – items of property (tangible (things) or intangible (copyrights)).
Rights – real rights and personal rights.
Property Law is the law of things and rights in things
Property Rights
Rights that you have in relation to property:
Real right (jus in re) – If you have a real right, you have ownership of the property. It is a strong
right and can be defended against all challenges. You have the right to use it, you have the
right to destroy it and you have the right to its fruits. Tree that has fruit or an animal that has
offspring.
Personal right (jus in personam or jus ad rem) – Weaker sort of right and applies against
another person. If somebody owes you a debt, you have a personal right against that person
to claim the debt.
Muirhead & Turnbull v Dickson 1905 7F 686 – difference between a real right and a personal
right.
Muirhead and Turnbull supplied Mr. Dickson with a piano and Mr. Dickson was to pay for the
piano by installments. Mr. Dickson did not make the payments that he had to make and was
taken to court by Muirhead and Turnbull because they wanted the piano back. The question
was whether the kind of agreement that was in place was a credit hire agreement or a hire
purchase agreement. If it was a credit hire agreement, then the piano was owned by Mr.
Dickson when it was delivered to him. If it was a hire purchase agreement, then it would have
belonged to Turnbull until all the installments were made.
The court decided that it was a credit hire agreement such that Dickson was allowed to keep
the piano. Mr. Dickson had a real right as soon as it was delivered to him. Even though he had
not payed for it, it belonged to Mr. Dickson. Muirhead and Turnbull gave away the ownership
of the piano and were left with personal right against Dickson for the payment of the piano.
Dickson – real right of the piano – keep it.
, Muirhead – personal right against Dickson for payment of the installments he had not payed
for yet.
If you want to buy heritable property (a house/flat), you need to go through a process which
would involve missives where the buyer and seller negotiate a contract between them
whereby the seller contracts to pay over purchase price and in return the seller would return
a document called a disposition with the result being to transfer the title of the property from
seller to purchaser. Missives are concluded, purchasers make the offer and the sellers agree
and deliver a signed disposition in exchange for the cheque. It is not the end to who has the
right to the property in question.
Settlement is where normally the purchase price will be exchanged for the signed disposition
saying that the sellers agree to hand over their property. However, even having aid over the
money the purchasers do not yet have a real right to the property until their solicitor takes
the disposition and delivers it to the land register. Only once the disposition in the favour of
the purchasers hits the land register, only then do they have a real right to the property they
have purchased.
This caused problems in a number of cases.
Gibson v Hunter Home Designs 1976 SC 23 – Conveyancing
Housebuilders built a house and sold it, purchasers paid over the purchase price but for
various legitimate reasons the seller did not hand over the disposition at the same time as
they had got the purchase price from the purchasers so the purchasers were not able to get
the disposition onto the property register.
The seller then became insolvent, the liquidator was appointed, it had to gather all the assets
of the company to see if there are any assets that can be used to pay to company’s creditors.
The liquidator argued that even though the purchasers of the property in question paid the
purchase price, they did not have a real right because the disposition were not made and
handed to the land register. The purchasers did not have a real right to the property in
question and thus it still belonged to the company in liquidation. The liquidator would be able
to treat the house in question as an asset still of the housebuilders company rather than
something that was not their property.
That argument was supported in court. Even though the purchaser had paid for the property,
it was held that the property still did not belong to them as they had not registered the
disposition in the property register, did not have a real right so it still belonged to the sellers.
Having paid over the money to the company, the purchasers became creditors of the company
for the money that they had paid for the purchase price. They would have to register their
claim with the liquidator. Sometimes the creditors rarely get anything in the end.
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