Lecture 1A

- This lecture looks at rights

- Property has been written about a lot by many different people from many different
professions

What is said of private property?

- Property delineates a bounded sphere - autonomy - into which the state cannot
enter - Jennifer Nedelsky
- Property “draws a circle around the activities of each private individual… by creating
zones within which the majority has to yield to the owner” - Charles Reich
- “Property is that which a man has a right to use and enjoy without interference; it is
what makes him a person and guarantees his independence and security” - Alice Tay

- These ideas have been influential in the Common law tradition, and as we’ll see
Civilian systems also allow owners a great degree of autonomy.

Private property in context: who owns Scotland?

- How do we apply some of these ideas about property to the Scottish context? Well,
some of you might be aware of the recent manoeuvring towards land reform in
Scotland, and these moves might be seen as a reaction to a situation where there is
a fairly concentrated pattern of land ownership in rural Scotland and the influence
and impact such owners can have, but also there is an increasing awareness of the
need for urban land reform where owners might be sitting on and maybe even
neglecting a derelict site. Sticking with the rural context, I’ve given you a figure there
which is associated with the work of Andy Wightman, who is currently an MSP, if you
don’t know who he is, and I’ve mentioned an agency that was set up by the Land
Reform (Scotland) Act 2016.

Property the word

- “property” is a substandard, ambiguous word in English.

- Property may have one of two meanings, generally, and given they can apply in
different technical and overlapping settings this can be confusing.
- Property can mean things, as in objects; or it can mean the concept of ownership
(imagine someone saying “I have property in these goods” – in that context someone
is not saying “I have property in a geographic location”, they are saying “I own these
objects” – to mix things up, although it is clunky you can say “I have property in this
property” and that makes sense in the English language).
- So we have a possible confusion between the right and its object. Property could be
“this thing”, or it could be “my right in a thing”
Property Law or Thing Law?

- Thing law doesn’t sound good in English

- Synonyms of property – things, patrimony, items, objects, goods, heritage, land,
chattels, moveables etc. [depending on context].
- Incidentally, the ECHR deliberately speaks of possessions, so it is not just physical
objects or land that can be protected, social security rights might be too, for
example.

Things and Rights

- Two crucial concepts to grasp. Things and rights. Both need defined, but the
definitions are interrelated. One has to be defined first and for me, given things
don’t go to court, but rights do (or at least rights holders do), I’ll accordingly define
rights first.

Real Rights and Personal Rights

- Real rights – a right in a thing, enforceable against the world (erga omnes – another
bit of Latin for you).
- Personal rights – a right enforceable against a person. So not necessarily linked to an
object. If you owe me money, I don’t instantly get a right to your house or your car. I
have a right against you. And only against you. So a right to obtain payment will only
be enforceable against an identifiable person (or, where there is more than one
debtor, a class of people).
- Four examples of personal rights listed in lecture 1 handout. These are: Right in
contract; Right in delict; Right in unjustified enrichment; Right of a beneficiary under
a trust.
- “Unbridgeable” difference between real and personal rights. There is no such thing
as quasi-real right. This was put to rest in a case called Burnett’s Tr v Grainger, which
you might read about yourself and I’ll certainly come to later when talking about the
transfer of land. You either have a real right or you don’t. I’ll come back to this point
later this lecture.

[Personal and Real Rights-advanced is on the slides]

Property Law and Publicity

- Idea of publicity is crucial in Scots property law and in other systems

- There is an underlying publicity principle recognised in most systems of property law.
Real rights are linked to informing third parties.
- Publicity can be effected in a number of ways, perhaps registration in a land register
or by the very simple act of possession. Without a situation being somehow
 perfected, normally through publicity, you won’t get a real right that third parties
need to respect. So publicity is useful to know about

Property Law and Certainty

- Certainty is important in many areas of law, of course, but certainty in property is

really crucial
- Property law is about everyone, and it needs to look at the bigger picture.
- So if someone’s property is used to create something else with other ingredients
without their permission, an example of a process called original acquisition you will
learn about later, then that person’s title in property law terms is gone. Now there
may be compensation from someone who used that property without permission,
but that would be a personal right, and we are concerned with real rights. Consider
also situations well-known in property scenarios, tales of two innocents, perhaps
where a rogue has sold the same item twice then disappeared, leaving two parties
arguing over who owns what. Whoever has a real right tends to be in the better
position. It’s not necessarily about what you think is fair in a particular circumstance.
Commerce requires this certainty.

Why Creditors often prefer real rights

- Real rights can be – enforced erga omnes- against everyone

- Things are more reliable, and often last longer, than people.
- A personal right is only as good as the person you sue. Of course, a real right in an
apple or a carton of milk might not be as valuable as a personal right in relation to a
millionaire, so it’s not a case of saying a real right is always more valuable, but you
don’t need to worry about your item declaring insolvency.

Real Rights Recognised by Scots law

- Scots law is generally uncodified, and there is no statutory list of real rights; the
courts have not set such a list out either. That being said, there is a finite number of
real rights, per the next slide.

Principle Real Right- Ownership

- Ownership main real right and carries with it many entitlements

- The main player. Dominium, to switch into the Roman term, is top of the tree. This is
what Stair calls the “main real right”. And with this main real right, you have certain
entitlements
- The right to exclude being one key entitlement, and that is something we will speak
of later. There is also the right to dispose (transfer). An owner can use, enjoy and
abuse (consume) his or her property, subject to law or paction; that was the
formulation of Erskine – another Institutional writer.
- As long as the asset remains (e.g. perishable materials may degrade), owner is in a
strong position indeed.
Subordinate Real Rights

- Next, lesser real rights, ranking below ownership – subordinate real rights. In Latin,
such a right would be referred to as jura in re aliena.
- They are right(s) in someone else’s property.
Ownership ranks above subordinate real rights in property hierarchy.

Types of subordinate real rights

- Perhaps the best known – and one you will likely have met in commercial law – is
rights in security (e.g. a pawnbroker takes a pledge, being a security right in a
moveable object, or a standard security (commonly called a “mortgage”) over a
house to a lender).
- Another well-known example of a subordinate real right is a lease of land. A lease of
land can be conceptualised as a real right (but not the hire of moveable items).
Leases have been “real” in Scots law since the Leases Act 1449, an act of the old
Scottish Parliament that is still on the statute books.
- A less well-known example is a proper liferent (usufruct, in Roman law/Latin
terminology). This allows someone to use an item for their natural life.
- Next, we have two “title conditions”. TCs are conditions that regulate land, as
between neighbours, and there are different flavours of TCs. First, we have
servitudes – a right for one owner of land to use someone else’s neighbouring land
for a certain purpose.
- Next, we have real burdens, and for our real rights discussion I am talking
particularly about real burdens of a negative nature (so a prohibition on doing
something on land). I won’t talk any more about title conditions now, save to note
that such conditions can be relevant to anyone who is on the affected land, whether
a tenant of the land, or someone who succeeds to the land.

Patrimonial
rights

Personal
Real rights rights

Subordinate
Ownership
real rights

Certainty and the Numerus clausus (closed list)

- Remember what I said about certainty? Having a closed list of real rights also serves
certainty, preventing successors in title from being bound by novel or unexpected
 obligations. You cannot agree some new-fangled right that will adhere to property to
trip up other people. Freedom of contract not mirrored in freedom of property

Any other real rights?

- Stair’s classification also included public/community rights (such as a right of way)

and possession.
- Possession will be dealt with later, and FYI its role is inherently linked to some other
real rights in modern Scots law.
- Last judicial recognition of a new real right was 1840.

Unbridgeable Divide?

- Remember when I said before you only had personal rights AND real rights, nothing
else... I do have one slight caveat follows.
- Some rights are seemingly personal but are in fact enforceable against others.
- A statutory example of this comes from family law, namely occupancy rights under
the Matrimonial Homes (Family Protection) (Scotland) Act 1981 – which could give a
non-owner or non-tenant spouse or civil partner (and sometimes cohabitants) rights
to stay in a property.
- ‘Offside goals’ rule, relevant to double grants, can allow an owner’s right to be
defeated in very limited situations. Discussed under derivative acquisition later.
- Trusts? Some rights under a trust are such that you can’t really say they are just
personal rights, and that’s something for the trust webcasts rather than now.

Ownership

- My final substantive points in relation to rights are about overlapping (or non-
overlapping) of rights. And when it comes to ownership, I am going to explain this
with reference to a cult 80s film, Highlander. And if you don’t get this cultural
reference because it’s before your time, it’s sort of before my time too as a child of
the 80s, but anyway – why I am talking about Highlander – because there can beonly
one. There can be only one owner. Scots law is unititular.
- There is ONLY ONE RIGHT OF OWNERSHIP in any thing at any given time. There can
be only one.
- This is not to rule out shared ownership – I’ll come to that later. So where there are
co-owners, say spouses, civil partners, or cohabitants, there is one class of proprietor
– one ownership right is shared.
- Bar that point though, your owning a thing necessarily precludes anyone else from
ownership of that thing.