110 by cuiliqing


									                         UNIVERSITY OF EDINBURGH

                          SCHOOL OF LAW

                         PROPERTY LAW ORDINARY 1

                    Monday 27 April 2009, 9.30 am – 11.00 am

                      Chair of Examiners: Ms Sandra Eden
           External Examiner: Ms Hilary Hiram, University of Glasgow

  Candidates are permitted to make use of unannotated foreign language dictionaries.

                    This examination will be marked anonymously.


                         Each question is worth 25 marks.

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.

                                                                         TURN OVER

1. Institutional Builders (Scotland) Ltd builds 50 houses in Hume Avenue, Forfar.
   Angus buys house number 44 Hume Avenue. Brenda buys house number 46. The two
   houses are next door to each other. The sales will induce first registration in the Land
   Register. Institutional Builders duly grants a disposition of number 44 to Angus and
   of number 46 to Brenda, and, by chance, Angus and Brenda present the dispositions
   for registration on the same day. Unfortunately, the Keeper mixes the applications up
   and registers Angus as owner of number 46 and Brenda as owner of number 44. He
   also forgets to include in either title sheet a servitude for underground pipes which
   was constituted in 1991 in favour of a neighbouring property known as Bell House.

   For a time no one notices. Angus moves into number 44 and Brenda into number 46.
   The mistakes only come to light when Colin, the owner of Bell House, notifies Angus
   and Brenda that he wants to dig a trench to repair the pipes.

   (a)   Who owns number 44 Hume Avenue? Who owns number 46?
                                                                                  [3 marks]

   (b)   The Keeper would like to swap names on the Register so that Angus is shown as
         proprietor of number 44 and Brenda as proprietor of number 46. Angus is keen
         that the swap should go ahead. Brenda, however, wants things left as they are:
         she has always preferred number 44 to number 46 and is looking forward to
         moving into it. Is the Keeper empowered to carry out the swap even if Brenda is
                                                                                [6 marks]

   (c)   Would it make any difference to your answer to (b) if, before the Keeper could
         take any action, Brenda had carried out her threat to move into number 44?

                                                                                  [5 marks]

   (d)   Assume that the Keeper manages to swap names, so that Angus is shown on the
         Register as proprietor of number 44 and Brenda as proprietor of number 46. Is
         payment of indemnity due and, if so, to whom?
                                                                              [5 marks]

   (e)   Colin’s request to dig a trench is met with a firm refusal from both Angus and
         Brenda. They point out that no servitude is mentioned on their land certificates.
         Therefore, they say, no servitude exists. Are they correct to say that no servitude

                                                                                  [6 marks]

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2. (A) Fiona borrows £10,000 from her aunt, Gerta. When the cheque is handed over,
   Fiona promises that if Gerta ever wants a security over Fiona’s house, Gerta has only
   to ask and a security will be granted straightaway. A year passes. As a 21st birthday
   present Fiona dispones her house to Harry, her son. Harry duly registers the
   disposition in the Register of Sasines. Another year passes. In view of the recession
   Gerta decides that it would be a good idea to have a security after all. Fiona, however,
   explains that the house now belongs to Harry and that Gerta must ask him. Gerta does
   so but Harry refuses.

   Must Fiona’s promise be in writing to be legally enforceable? If it is enforceable, can
   Gerta insist on her security?

                                                                                  [15 marks]

   (B) Gerta gives up on trying to get a security. Instead she sells the debt (ie the right to
   receive £10,000 from Fiona) to Ian. An assignation in Ian’s favour is duly granted and
   Ian intimates the transfer to Fiona.

   (i)    After the assignation is granted but before it is intimated, Gerta borrows £3,000
          from Harry and Harry borrows £4,000 from Fiona. How much is Ian entitled to
          recover from Fiona?

                                                                                   [5 marks]

   (ii)   Before Fiona pays Ian she becomes insolvent and a trustee in sequestration is
          appointed on her estate. What remedies might Ian have and against whom?

                                                                                   [5 marks]

                                                                               TURN OVER
3. (A) Nora has a gold ring on long-term loan from her sister, Meg. The ring used to
   belong to their mother, Leila. Nora has now worn the ring for years and everyone is
   used to seeing it on her finger and thinks that it is hers.

   (i)    Nora makes a present of the ring to her friend, Onora. Onora sells it to a shop,
          Pictorial Jewellers Ltd, for £300. Pictorial Jewellers sell the ring for £500 to
          Quint who gives it to his wife Rowena as a birthday present. Who owns the

                                                                                   [4 marks]

   (ii)   Would it make any difference to your answer to (i) if –

           (a) Nora sold the ring to Onora instead of making a gift?

           (b) after Onora had sold the ring to Pictorial Jewellers, Meg died bequeathing
               the ring to Onora in her will?

           (c) Rowena, who is a dentist and does not like gold rings, melted the ring
               down and made it into fillings?
                                                             [4 marks each, 12 marks in all]

   (B) Are the following documents (a) validly executed (b) probative?

   (i)    A disposition by Mackenzies LLP, a Scottish limited liability partnership. It is
          signed at the end by Janet Hood and William Cuthbertson, who are described in
          the testing clause as “members of the partnership”. A plan attached to the
          disposition is not signed.

                                                                                   [5 marks]

   (ii)   A standard security by Oldbuild Ltd, a company incorporated in the British
          Virgin Islands. It is signed at the end by John Taylor (described as “director”)
          and the company seal has been affixed.

                                                                                   [4 marks]

                                                                     END OF QUESTIONS

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