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					                        UNIVERSITY OF EDINBURGH

                        SCHOOL OF LAW

                       PROPERTY LAW ORDINARY 2

                   Tuesday 29 April 2008, 2.30 pm to 4.00 pm

                       Chair of Examiners: Ms Sandra Eden
             External Examiner: Mr S C Styles, University of Aberdeen

           Candidates should answer TWO out of THREE questions.

                        Each question is worth 25 marks.

                 This examination will be marked anonymously.

     Candidates are permitted to make use of unannotated foreign language

Candidates are permitted to bring into the examination hall the Avizandum Statutes
on Scots Property Trusts and Succession Law which may not be written upon.

Candidates in the third or later years of study for the degrees of MA(General),
BA(Relig Stud), BD, BCom, BSc(Social Science), BSc(Science), BEng and LLB should
put a tick() in the box on the front cover of the script book.

                                                                        TURN OVER
1. Amanda owns two flats which she wants to let out. She negotiates for the lease of
   the first flat to Bertie. They agree that the duration of the lease is to be ten years,
   and agree all the other terms of the lease save the rent. While they are still
   haggling about the rent, Amanda allows to Bertie entry to the property on 1 April
   to undertake some decorating works. On 1 May she allows him to move in his
   furniture and other possessions, and to take up occupancy. During a subsequent
   inspection of the flat by Amanda, she notices that Bertie has very few possessions
   in the house, and is concerned at this.

   (a) Is there a lease between Amanda and Bertie? If so, what rent must Bertie pay?

                                                                                [5 marks]

   (b) Assuming there is a lease between the parties, does Bertie have a real right of
       occupancy over the subjects? If so, does he get this on 1 April, 1 May, or on
       some other date?
                                                                             [5 marks]

   (c) Can anything be done by Amanda to address her concern at the lack of Bertie’s
       possessions on the subjects?
                                                                          [3 marks]

   Amanda leases the second flat to Cedric for a period of one year, at a monthly rent
   of £500. Cedric decides to practise his trade as a barber from the living room of
   the property. He moves in a very heavy barber’s chair for this purpose. After a
   week, the floorboards beneath the chair begin to buckle under the weight. Cedric
   is annoyed at this and withholds half of the monthly rent on the property.

   (d) Can Cedric carry on his trade as a barber from the flat? If not, what can
       Amanda do to rectify matters?

                                                                                [3 marks]

   (e) Is Cedric entitled to withhold half of the rent because of the buckled
       floorboards beneath the chair? If not, what can Amanda do about this? Can
       Cedric force Amanda to have the floorboards repaired?
                                                                              [6 marks]

   Amanda and Cedric patch up their differences, but Amanda still wishes Cedric to
   quit the property at the end of the lease. Twenty one days before the ish, Amanda
   serves a notice to quit upon Cedric.

   (f) Does Cedric have to quit the property at the ish?
                                                                                [3 marks]

                                               2                        TURN OVER
2. Number 14 Gilmerton Place is a traditional stone-built tenement in the south side
   of Edinburgh. There are three flats on each of its three floors (nine flats
   altogether). All are reached by the close. Jackie Mackie owns one of the flats on
   the second floor. She has a loan from the Royal Bank of Scotland, secured by a
   standard security over the flat.

   The split-off dispositions for each of the nine flats date from the early years of last
   century. Each contains the following real burdens:

       The flat shall be used as a private dwellinghouse for one family only and for no other

       The roof of the tenement shall be maintained by my said disponee in common with
       the owners of the other flats in the tenement, each owner being liable for a one tenth

       Decisions about the tenement may be taken by the owners of two thirds of the flats
       and will then be binding on the owners of all the flats.

   There are no other burdens in the disposition; nor is any provision made as to who
   can enforce the burdens.

   (a) The Royal Bank is insisting that Jackie insures her flat. She is short of money
       and is appalled at the high premiums under the Bank’s proposed insurance
       policy. Can the Bank force Jackie to insure?
                                                                               [4 marks]

   (b) Jackie relents and agrees to insure. Indeed she becomes an insurance
       enthusiast. She is worried that the owners of some of the other flats might not
       have taken out insurance. Can she force them to do so?
                                                                             [4 marks]

   (c) The owners agree among themselves to carry out a repair to the roof. The cost
       is £9,000. What is Jackie’s share of this amount?
                                                                           [4 marks]

   (d) There is some discussion among the owners about installing an entry-phone
       system. Five owners are in favour. Four (including Jackie) are against. Will
       the installation go ahead?

                                                                                    [4 marks]

   (e) Jackie has discovered that the owner of the other flat on her landing, Jim
       Murray, runs a yoga class from his front room three nights a week. Is this a
       breach of the real burden requiring the flat to be used as a private
       dwellinghouse? Assuming that it is a breach, does Jackie have title and
       interest to enforce the burden against Jim?
                                                                              [9 marks]

                                                3                          TURN OVER
3. (A) Two years ago Serena Smith took a 15-year lease of a substantial landed
   estate in rural Perthshire. Since then she has become increasingly annoyed that
   Murdo Sinclair uses the estate road as a shortcut from his house to the main road.
   Sometimes this is on foot, sometimes on horseback and sometimes by car. All
   three interfere with Serena’s enjoyment of the woods which run on either side of
   the road. Murdo’s house is the former lodge house, which was separated from the
   rest of the estate by a disposition granted in 1980. The disposition is silent on the
   question of access rights.

   (i)    On what legal ground or grounds might Murdo be entitled to use the road?

                                                                             [10 marks]

   (ii)   Would it make any difference to your answer if Murdo’s house was
          landlocked, and the road was the only means of access to the main road?

                                                                              [3 marks]

   (iii) Assume that Murdo has no right to use the road. Is Serena able to put his
         use to an end and, if so, how?

                                                                              [4 marks]

   (B) Are the following in lawful exercise of the access rights conferred by s 1 of
   the Land Reform (Scotland) Act 2003? Assume in each case that the “land” in
   question is privately owned.

   (i)    Walking through a field.

   (ii)   Fishing for trout in a river.

   (iii) Standing on a bridge over the river giving unsolicited advice to those sailing

   (iv) Having a picnic on a golf course on a Sunday evening, when the course is
        closed and no golf is being played.

                                                 [2 marks for each part, 8 marks in all]

                                                                 END OF QUESTIONS