Scots property law governs the rules relating to property found in the legal jurisdiction of Scotland.
In Scots law, the term 'property' does not solely describe land. Instead the term 'a person's property' is used when describing objects or 'things' (in Latin res) that an individual holds a right of ownership in. It is the rights that an individual holds in a 'thing' that are the subject matter of Scots property law.
The terms objects or 'things' is also a wide-ranging definition, and is based on Roman law principles. Objects (or things) can be physical (such as land, a house, a car, a statue or a keyring) or they can also be unseen but still capable of being owned, (e.g. a person can have a right to payment under a contract, a lease in a house, or intellectual property rights in relation to works (s)he produced).Badenhorst, PJ, Juanita M. Pienaar, & Hanri Mostert, Silberberg and Schoeman's The Law of Property, 5th ed. (Durban: LexisNexis/Butterworths, 2006), p. 9. While this may appear to encompass a wide range of 'things', they can be classified and sorted according to a legal system's rules. In Scots property law, all 'things' can be classified according to their nature, discussed below, with four classes of property as a result:
Corporeal heritable property (e.g. land, building, apartment, etc.) Incorporeal heritable property (e.g. a lease, a right in a contract for sale of a house, a liferent, etc.) Corporeal moveable property (e.g. furniture, car, books, etc.) Incorporeal moveable property (e.g. intellectual property rights, rights of payment arising from contract or delict, etc.)
Each class of property has rules concerning the real rights (or rights in rem) an individual may have in that property.
Sources of Scots property law Prior to the Kingdoms of Scotland and England & Wales' unification as the Kingdom of Great Britain, Scots property law was largely governed by acts of the Parliament of Scotland and common law decisions by the Scottish judiciary. Its roots predominantly lay in Roman law and the ius commune, however feudalism was also introduced into Scots property law as a result of the Davidian Revolution in the 12th century so the legal system developed a distinct property law. In the 17th and 18th century, a group of academics, now called the institutional writers, wrote authoritative texts on large areas of Scots law, including property law, which came to be regarded as a formal source of law from the 19th century onwards.
Following the Acts of Union 1707, Scots Law and its courts, such as the Court of Session, continued to operate as a separate legal system in the Kingdom of Great Britain under the terms of Article XIX (19) of the Treaty of Union. The jurisdiction retained its independence following the creation of subsequent United Kingdom states in 1801 and 1922, although Scots law was subject to modification by Acts of the Parliament of Great Britain, and latterly, the Parliaments of the United Kingdoms, and from judgements of the Appellate Committee of the House of Lords in appeals from the Court of Session.
Today, Scots property law is part of Scots private law and as such is a devolved competence of the Scottish Parliament under the Scotland Act 1998.Scotland Act 1998 s. 126 The Scottish Parliament has introduced key pieces of legislation in relating to property law: notably the Land Reform (Scotland) Act 2003, the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and the Land Registration (Scotland) Act 2012. However, large areas of Scots property law still remain governed by pre-existing legal authority predating the creation of the Scottish Parliament on 12 May 1999, so its current sources of law include:
The works of the Institutional Writers. Common law decisions of the Scottish courts, including judgments of the House of Lords (and its successor, the Supreme Court of the United Kingdom), in civil appeals from the Court of Session. Acts of the Parliament of the Kingdom of Scotland. Acts of the Parliament of Great Britain, latterly Acts of the Parliament of the United Kingdom. Acts of the Scottish Parliament.
Recognised property rights in Scots law
Introduction Persons (both natural and juristic) have a patrimony, also known as an estate, containing all the person's rights (i.e. their legal entitlements) with an economic value (termed patrimonial rights) and all their liabilities.G. Grettton & A. Steven, Property, Trusts and Succession, 2nd edn. (London: Bloomsbury, 2016), p. 5. This definition is wide-ranging so will encompass all the rights, such as the right of ownership or contractual rights, a person may have. Most persons will only have one patrimony, but in the case of a trustee, an individual may have two separate patrimonies. Patrimonial rights that a person holds in a thing or object are the focus of property law; these are called ‘real rights’ (in Latin: ius in rem, lit. ‘a right in a thing’) and Scots law distinguishes real rights from any other rights that a person may hold.
The recognised real rights a person can have in Scots law are:
Ownership Lease of heritable property. Right in security Servitude Real burdens Liferent
Ownership is the main real right, with all other real rights subordinate to ownership.
Personal rights and real rights Scots law follows the Roman law classification of rights falling into either of two categories: a personal right (ius in personam) or a real right (ius in rem), which Nicholas describes as:
"Any claim is either in rem or in personam, and there is an unbridgeable division between them. An action in rem asserts a relationship between a person and a thing, an action in personam a relationship between persons. The Romans think in terms of actions not of rights, but in substance one action asserts a right over a thing, the other a right against a person, and hence comes the modern dichotomy between rights in rem and rights in personam. Obviously there cannot be a dispute between a person and a thing, and therefore even in an action in rem there must be a defendant, but he is there not because he is alleged to be under any duty to the plaintiff but because by some act he is denying the alleged right of the plaintiff."
Identifying personal or real rights In Scots law, a personal right typically is created in contractual agreements (e.g. a contract for sale, a contract of loan, a contract of hire, etc.) or as a result of an individual committing a delict (e.g. breach of a duty of care). With personal rights, the pursuer (in other jurisdictions this is termed the plaintiff or claimant) can bring to a Scottish court an action against an individual. A real right is held in the property itself and is enforceable against the world, a pursuer can sue in relation to a real right where the defender interferes with the pursuer's real right.Burnett's Trustees v Grainger UKHL 8, per Lord Rodger of Earlsferry at para 87. Example 1: A contracts with B to purchase a piece of land. B backs out of the deal but A still wants to buy the land. A has a contractual (personal) right to sue B because they had entered into a contract. A does not have a real right in the thing because no real right had been transferred to him validly. A sues B in the Sheriff Court for breach of contract under her personal right.
Example 2: D is hit by E's car while riding his bike, committing a delict by breaching his duty of care to other road users. D now has a right in delict (a personal right) for E to pay D's damages for his injuries. D sues E in the Court of Session.
Example 3: F owns (a real right) a bike. G steals F's bike. F sees G with the bike and wants it back. F, as well as remedies available in criminal law, can raise an action in the courts against G for G's interference with F's right of ownership.
Example 4: H has a lease (a real right) in the property. G is the landlord (Owner) of the property. G tries to evict H unlawfully. H can sue G for interference with H's real right of lease. Accordingly, within Scots private law, personal rights belong to the law of obligations whereas real rights fall within the law of property.B. Nicholas, An Introduction to Roman Law (Oxford, 1962), page 101. In Scots law, see Scotland Act 1998 s.126(4). However, any real right an individual may have in property must be recognised and valid in Scots law in order to be a true real right.
The recognised real rights in Scotland: The numerus clausus Scots law only recognises a defined number of real rights, which follows the legal principle shared with other jurisdictions,For a comparative discussion, see B. Akkermans, The Principle of Numerus Clausus in European Property Law (Intersentia, 2008) vol 75, 75. that only real rights within the numerus clausus (closed number) are competent. Without the valid creation of a recognised real right, an individual only holds a personal right against another. This means that where an individual contracts to purchase property from another, they only hold a contractual right to the property not a real right. The principle of numerus clausus is explained in an Australian context by Edgeworth as:
"In essence, the principle holds that landowners are not at liberty to customise land rights, in the sense of reworking them in an entirely novel way to suit their particular individual needs and circumstances. Rather, any new rights must fit within firmly established pigeonholes, of which the law permits only a small and finite number. The principle applies regardless of the terms of any agreement that parties might reach for the purpose of creating such an interest, so it is irrelevant that a specific contractual arrangement to create a wholly novel interest might be free and fair."B. Edgeworth, 'The Numerus Clausus Principle in Contemporary Australian Property Law' (2006) 32 Monash U L Rev 387, 387.
In Scots property law, the real rights falling within the numerus clausus have never been formally codified, but it is considered that the primary real right is ownership and subordinate to it are the subordinate real rightsErskine II,1,1, 'inferior real rights'. Erskine is an institutional writer, so this is an authoritative source of law in Scotland. which have come to be accepted as:Stair Memorial Encyclopaedia, Vol 18, para 5.
Ownership
Lease
Real security
Servitude
Real burdens
Liferent Only the above rights, including ownership, are capable of being real rights and will only vest in an individual when they have been validly created or transferred in accordance with their respective rules.
Other quasi-real rights in property Despite only the above being recognised as real rights, other rights that are akin to subordinate real rights are found in Scots Law that can act as an encumberance on the exercise of the right of ownership:G. Grettton & A. Steven, Property, Trusts and Succession2nd edn. (London, 2016), page 16.
Public access rights, this includes public rights of way, the 'right to roam' under the Land Reform (Scotland) Act 2003 and the public rights of access and navigation in the foreshores of Scotland arising from the Crown's right in the regalia majora.1979 Act Registration Manual, Registers of Scotland:
https://rosdev.atlassian.net/wiki/spaces/79RM/pages/76155419/L18+Foreshore+Seabed+and+Natural+Water+Boundaries
See also, Scottish Law Commission, Discussion Paper on Law of the Foreshore and Seabed, Discussion Paper 113, available at:
https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/ Legislative rights: such as occupancy rights of a spouse under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Exclusive privilege, typically only discussed in intellectual property. Possession.
Who can own property?