Property Law Final Outline – Full Scots Law Revision Notes (LLB Edinburgh)

Property Law Revision
Outline




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, Head 1 - Introduction
 Real Rights (Jus in Rem):

o Right in a thing itself.
o Enforceable against "the world."
o Example: Owning a house = can stop anyone from trespassing.
 Personal Rights:
o Right against a person.
o Only valid against a specific person.
o Example: Renting a flat gives you a personal right against the landlord.
 Types of Real Rights:
o Limited number; cannot create new types.
o Ownership (Dominium): Strongest right in property.
 Publicity principle: Must be registered in the Land Register.
o Subordinate Real Rights (Rights in Someone Else's Property): Limit
ownership without transferring it.
 Lease (Land only): Tenant has a real right; valid even if the property is
sold.
 Liferent: Right to use property for life, even if sold.
 Servitude: Right to use part of another's land (e.g., right of way).
 Real burden: Obligation affecting land (e.g., no business use).
 Right in security: Lender (e.g. bank) can sell property if the owner
doesn't repay a loan.
 What are Things (Property)?
o Corporeal: Physical things you can touch.
o Incorporeal: Non-physical things like rights.
 Example:
o A has a lease over land belonging to B.
 B's right in the land (corporeal property): Real right.
 A's right in the land (corporeal property): Subordinate real right.
 A's right in the lease (incorporeal property): Ownership of an
incorporeal heritable right.
 Ownership Focus:
o Ownership rules also apply to subordinate real rights.


Head 2 - Execution of Documents
Requirements of Writing (Scotland) Act 1995.

 Deed:
o Document used to create, transfer, change, or extinguish real rights.
o Examples: Dispositions, standard securities, and assignations.
 Execution:
o Legal signing of a document to make it valid.
 Requirements of Writing (Scotland) Act 1995:
o Section 12: Interpretation.
o Know everything EXCEPT sections 10, 11, 13, 14, and 15.


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, o Schedules: Learn Schedule 2 ONLY.



 Part 1 (s1): When Writing is Required
o No writing = void.
o General Rule:
 s1(1): Writing usually NOT required for contracts/promises/trusts (can
be verbal).
o Exceptions:
 s1(2): 6 exceptions where writing is required.
 s1(2)(a)(i): MOST IMPORTANT
 Writing required for contracts or promises about land.
 Creation, transfer, variation, or extinction of a REAL
RIGHT in LAND.
 Examples: Missives (contract for selling land) must be
in writing; promise to transfer ownership of land must
be in writing.
 Doesn’t transfer real right = makes contract/promise
valid.
 s1(2)(a)(ii):
 Gratuitous promises (without receiving anything in
return) must be in writing, except in business settings.
 s1(2)(b): ALSO IMPORTANT
 ACTUAL transfer of real right must be in writing.
 Examples: Disposition (transfers ownership), standard
security (mortgage).
 s1(2)(ba):
 Writing required for agreements about property
boundaries under Land Registration Act (e.g., changing
a fence line).

If no writing – might be exception:

 Personal Bar:
o s1(3)-(5): If no writing, rights are void, BUT contracts/promises/trusts might
still be valid if the other party is personally barred.
o Valid if the other party (B) has reasonably relied on it and would suffer
material loss if it wasn’t upheld.
o s1(3)(a): Second person can’t withdraw!
o s1(4): Must be material loss.
o s1(3)(b): Still valid if no writing.
o Example:
 A verbally agrees to sell land to B.
 B pays the price and moves in.
 A tries to back out, claiming no written agreement.
 Personal Bar prevents A from refusing transfer because B relied on the
agreement and suffered loss.
 A = person who tries to withdraw = personally barred!
 Definitions:

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, o s1(7)(a): Defines real rights in land = ownership + rights in land (except leases
under 1 year).
o s1(8): What is NOT Land = growing crops, moveable buildings/structures.
 Part 2: Traditional Documents: Formal Validity
o 1. Documents have to be signed/subscription
 s2(1): IMPORTANT - Documents must be subscribed (signed at the
end) by the granter.
 s2(2): For contracts, both the offer and acceptance need to be
subscribed by the granter.
o How to sign?
 s7(1): Defines subscription (signing at the end of the document).
 s7(2)(b): Outlines how to sign the document (normally used).
 s7(3): If there are multiple granters.
 s7(7): Juristic persons (like companies) need to follow specific signing
rules, explained in Schedule 2.
 Stirling Stuart v Stirling Crawfurd: Illegible signature = legally valid
but not probative.
o Signing for people who can’t sign themselves
 s9: Notarial execution: a solicitor or advocate can sign on behalf of
someone else (blind or can’t write).
o 2. Companies
 s12(1): Defines company as a company governed by the 2006 Act.
 A Non-UK Company is a ‘other body corporate’ not a
‘company’.
 s12(2): Allows someone to appoint an agent to sign on their behalf
(doesn’t need to be in writing, but usually is).
o SCHEDULE 2 – other than companies
 Para 2: Describes how ordinary partnerships sign documents.
 Para 2A: Allows trustees to sign documents.
 Para 3A: Discusses how limited liability partnerships sign documents.
 Para 5(1): Defines “other bodies corporate” covering entities that
aren’t companies under the Companies Act 2006.
 Juristic person = company etc.
 C. Traditional documents: probativity
o ‘Probative’ = document is presumed to be validly executed (signed).
 Witness must sign; not subscribe (unlike granter).
 Subscribe = signing at end of document.
 Signing = done anywhere (usually in testing clause).
o Steps - Probativity by attestation (i.e. witnessing)
 1. Is it even valid?
 s3(1)(a): Presumption it’s valid.
 Granter subscribes in usual way, without using method © from
s7(2). i.e. must be signed under s2.
 2. Was the signature properly witnessed?
 s3(7): Granter must sign in witness’s presence OR
acknowledge the signature of the witness.
 3. Is the witness properly identified?
 s3(1)(b): The witness is designed (named) in the testing clause
or in the document itself.


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