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Tag: property law

Servitudes in the Sheriff Appeal Court- Acquiescence, Permission and Tolerance

by Alasdair Peterson, Lecturer in Private Law, University of Edinburgh

Introduction

In a recent case, AC & IC Fraser & Son Limited v Munro [2024] SAC (Civ) 41, the Sheriff Appeal Court was faced with two issues relating to the law of servitudes: firstly, whether a landowner’s inaction in response to its neighbour’s use of a diverted route had led, through acquiescence, to a variation in the route of a vehicular right of access; and, secondly, whether an additional pedestrian right of access had been established through positive prescription despite the landowner having permitted the neighbour’s predecessor to use the route over which a servitude was now claimed.

Although these issues are doctrinally distinct, a common theme emerges from the court’s deliberations: how best to characterise a landowner’s response (or lack of response) to a neighbour using their land in a manner apparently unsupported by any existing right of servitude.

In its opinion, delivered by Sheriff Principal Pyle, the court refers to several different descriptions which could be applied to a landowner’s response (or, again, lack of response) in this context – namely “acquiescence”, “permission”, and “tolerance”. As will be seen, although these descriptions overlap in their everyday meaning, their legal meanings are substantively different. Deciding which description best characterises a landowner’s behaviour will therefore be significant when determining whether land has been burdened with a praedial servitude or remains free.

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Title to Sue for Damage to Hired Property: A Scots Law Perspective

by Lisa Cowan, PhD candidate, University of Edinburgh

In Armstead v Royal & Sun Alliance Insurance Co.[1] the appellant, Lorna Armstead, was involved in a road collision.  While her own car was out of action, she hired a rental car, a Mini Cooper, from Helphire. By a terrible coincidence, she was then involved in a second accident in the rental car.  A third party, insured by the respondent Royal & Sun Alliance (RSA), was at fault. Under the terms of rental agreement with Helphire, Armstead became liable for an amount equivalent to the daily rental rate of the car.  This represented the value of Helphire’s loss of use of the car while it underwent repairs. (This was referred to in the case as the ‘Clause 16 sum’).

When Armstead’s appeal eventually reached the Supreme Court, the issue turned on the interaction between the law of tort and contract.  In addition to the cost of repairing the rental vehicle, could the value of Armstead’s contractual liability to Helphire be recovered from RSA, the insurer of a third party who was at fault?  At stake was the princely sum of £1,560.

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The case for digital assets legislation in Scotland

by David Fox, Professor of Common Law, University of Edinburgh

The England and Wales Law Commission has recently published its final report on Digital Assets (Digital assets – Law Commission).[1]  The report comes after an exhaustive study of the way that existing principles of private law in England and Wales would apply to this emerging class of assets.  It is of great significance since digital assets are fast becoming mainstream vehicles for carrying out financial transactions as conventional forms of financial securities are adapted to work on blockchain technology.  The report acknowledges that private law is as relevant to digital assets as the specialist regimes of financial services regulation that were the main focus of attention in the early days of their development.

The Law Commission report is relevant to Scotland which has an important fintech industry of its own but where the application of fundamental principles of Scots private law to digital assets remains obscure.  Any new clarification of the legal rules in Scotland would need to allow for the subtle similarities and differences between English and Scots property law and for the divergent patterns of legal development in each jurisdiction.

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Whose pint is it anyway?

by Susanna Macdonald-Mulvihill, Early Career Fellow, Edinburgh Law School

A woman walks into a bar. Her name is Janet. Janet tells the bartender, Luca, that she would like a dram for herself and to buy a drink for all the other customers currently in the pub. Luca duly pours the whisky and rings up the total for all the drinks. Janet pays, drinks her whisky, and leaves. Luca pours the drinks Janet has bought for the other customers and distributes them to the relevant people, who happily accept and enjoy their beverages.

Kevin, one of the regular customers, was in the toilets when Janet came in and does not know about the transaction. Luca had included a pint of beer for him along with the drinks for the other customers that Janet paid for. Luca had poured it and left it on the bar where Kevin was previously sitting. However, when Kevin, unaware of Janet’s generousity, left the toilet, he walked straight out of the bar to go home. He did not see the beer and the drink remains untouched. Whose pint is it? And why does it matter? 

What this scenario demonstrates is an instance of an indirect donation. An indirect donation is where a donor engages in a transaction with a third party who in turn passes the benefit on to the donee. This can occur in a number of ways. For instance, a donor can be a parent who pays the rent of a university student child. The parent and landlord are the parties who transact but the student child receives the benefit of the accommodation. Alternatively, the donor may be a person who waives a right they have against a third-party in favour of the donee. An example of this could be the renunciation of an inheritance right resulting in that right vesting in the donee. Key to an indirect donation is that the donee is not actively involved in the transaction that leads to the benefit passing to them.

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Nuisance, amenity and praediality: Fearn’s implications in Scotland

by John MacLeod, Senior Lecturer in Private Law at the University of Edinburgh.

The UK Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 339 generated an unusual degree of interest for a private law decision with reports and commentary in a number of newspapers (helpfully collated here). Much of this is no doubt due to the Tate being such a well-known institution but the case also represents an interesting development in the law of nuisance.

The claimants were the leaseholders of flats in London directly opposite the viewing gallery at the top of the Blavatnik Building, which is part of the Tate Modern. The flats had floor-to-ceiling windows. This meant that the viewing gallery’s visitors (who numbered several hundred thousand per year) had a direct view into the claimants’ flats. It can readily be imagined that this was undesirable for the claimants but there was considerable doubt about whether they had any remedy of in the law of nuisance.

Doubts focused on two questions: 1) whether “overlooking” can, as a matter of principle, ever amount to a nuisance and 2) how courts should approach the question of determining whether a given interference in a particular case.

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