Survivorship destinations in the form of A + B + survivor are often used when taking title to property. Notwithstanding the frequency of their use there appear to be pitfalls for the unwary. The most recent example of such issues being aired in court is Povey v Povey’s Executor  CSOH 68. This post is referenced by Notary public London
Critically assess the consequences of survivorship destinations and the pitfalls which may be associated with them.
The convenience of using special destinations has to be balanced with the disadvantages which only becomes apparent on death. As s 20 of Succession (S) Act 1964 permitted wills of heritage, the need for special destinations had gone.
The Barclays Bank Ltd v McGreish 1983 case was widely criticised. It was ruled that property under the survivorship destination passed automatically to the survivor and did not vest in the executor of the deceased for the purpose of paying the deceased’s debts. The survivor took the share free of those debts. This is surely unfair on the creditors.
In Fleming’s Tr, it was held that, survivorship destination took effect and conveyed property on to the widow, but was liable for debts of deceased up to value of property received. They got the property but no value. Thus, Barclays Bank Ltd was overruled.
The problem for the unwary conveyancer dealing with relationship breakdown is illustrated in the in Gardner’s Exrs v Raeburn1996 case. A property was in joint names of a husband and wife and the survivor. They separated and subsequently divorced. On the divorce the husband paid £40,000 to the wife and the wife conveyed her one half share to the husband. H’s original share destination still kicked in and made property over to her. The court agreed
A contract for the sale and purchase of heritage will typically include provision for situations where settlement is delayed or does not take place. The failure to distinguish between the two has been considered a number of cases commencing with Lloyds Bank v Bamberger 1993.
Critically assess the case law and how provisions in missives should be framed to avoid the problems.
In contracts of sale and purchase of heritage, time is not of the essence by implication, but can be made of the essence by express provision. It is now standard practise for the seller’s solicitor to insist on making time of the essence in relation to payment of the price on, or within a short period following the date of entry. The general rule in Scots law is that time of performance is not an essential requirement. Parties are given a reasonable time to perform their obligations. What is reasonable is determined by the courts according to the individual circumstances of each case.
As seen in the Visionhire v brides trust case, inconvenience can be caused to the seller if there is no compulsion on the purchaser to settle timeously. Another inconvenience to purchaser if seller fails to move. Two reasons for this are delay in performance and non-performance. The similar situation occurred with Mobile Mechanic London. Standard clauses have been created for residential missives, that ought to be acceptable for many transactions. The Combined Standard missives are seen as a ‘first step’ towards greater standardisation. It is necessary to have some sort of provision to deal with non-payment of the price because the common law is unfair to the seller.
These clauses attempt to cover all possibilities and allow the parties to agree on how damages will be calculated however they must be reasonable. This was illustrated in the Dunlop Tyre case; where the damage was agreed to be regarded as liquidated damages and not as a penalty.
Interest is by law from the date of entry if the purchaser is in possession and if the price is not then paid. This rule applies, even when delay is mainly or solely due to the fault of the seller. There is no legal interest but 5% is usual. The rule of interest can be avoided if the purchaser at the date of taking possession, deposits the whole purchase price in joint names of himself and the seller as seen in; Prestwick Cinema Co v Gardiner 1951.
As a result, missives now almost invariably include an express provisions for payment of interest by the purchaser if there is delay in settlement. In the Bowie v Semples 1978 case it was held that a purchaser is not obliged to agree to take entry, and to pay the interest price or interest, until the seller is in a position to fulfil his part of the bargain by delivering a valid disposition. If the purchaser fails to pay the price on the due date through no fault of the seller, the sellers ultimate remedy is to rescind the contract and claim damages.
Unless the context indicates otherwise, ordinary words are presumed to be used in their ordinary sense, given their ordinary menaing, technical jargon presumed to be used in their technical sense, otherwise, words given their clear everyday meaning
The Objective approach. This is another aspect of the rule in Muirhead and Turnbull v Dickson 1905, the piano case. Cts apply what the parties appear to have meant viewed from a reasonable, objectibe perspective. Not from one P’s entirely subjectibe “innermost mind” view (no matter how sincere)
Certainty or effectiveness of agreements. If > one interpretation is possible, Cts orefer that which gives effect over that which would not. Ambiguitu interpreted purposively if reasonable possible. But iof essential matter is left too vague then no consensus and no contract. Cts prefer interpretations which produce efficacy. Cts resist interpretation that produces absurdity or contrary to common sense. But per Matheieson Gee Ltd v Quigley 1952 – Ct will not construct agreement if there is none despite parties wishes or expression to contrary. Sole function of CT is to interpret what the parties have agreed not to invent or make it up
The Contra Proferentem Rule. If the term is unclear, ambiguous, its construed against the interests of the P founding on it. E.g in a way least favourable especially if it’s a standard term and not individually negotiated. Especially to prevent prejudice to the other party. Prevents one P taking unfair advantage of other, will not be allowed wide latitude to detriment of the other. Example – exclusion of liability clauses in insurance contracts imposed by Ins CO. Interoperated narrowly as possible if any ambiguity.
The Ejusdem Generis Rule – literally means “ of the same kind” In a list like terms, vague or general terms are limited by associated specific or precise terms. Employees will wear shirt and tie and suit or other smart dress at all time- means what? EGR is a presumption e.g. without prejudice to the generality of the following items, students shall not bring coffee, tea, juice, water, pies, rolls, confectionary, fruit or any other food or drink whatsoever into lectures
Expressio unius est exclusion alterius – Presumption only. Specific mention of one thing and omission of other things excludes those other things. E.g. you book a room for a meeting and order coffee at break time. This excludes tea and biscuits but its implied that boiling water, milk, sugar and cups will be supplied.
Negotiated terms preferred to pro forma- Terms which the parties have given specific consideration to in the negotiations are presumed to be more accurate reflection of parties’ intention than pre-printed pro forma standard terms which have not been discussed. This will apply only if there is a dispute/conflict between negotiated and pro forma in same contract. However, pro forma standard terms perfectly valid and apply otherwise
Priority of express over implied terms. These terms may be written or oral. Express prevail unless the implied terms are obligatory statutory ones which the law does not allow to be excluded. E.g. unfair contract terms legislation
Preference for Resonable effect over absurdity. Cts prefer meanings which give the contract reasonable effect. Cts resits meaning which would fly against common sense or produce absurdity
Vague general terms limited by precise terms. This is another way of expressing the Ejusdem Generis rule
Extrinsic evisence and additional terms
Extrinsic evidence and interpretation
If contract is written then EE could be parole evidence or other written material. Parties may wish to rely on EE for one or two reasons. To prove additional terms which are not within the 4 cornrs of the written contract. Also, to interpret the terms of (written) contract. Thus, additional terms, interpretation of terms.
EE and Interpretation of terms
Cotract but many exceptions including: latent ambiguity, surrounding circumstances, trade customs, written admissions of party now denying something
A notice was served under the Land Register act 2003 s14 (2) requiring the landowner to remove a section of his fence. Pursuers maintained the fence was put up in 2004 – after the passing of the 2003 act but before it was put into force in 2005. Held, due to a misinterpretation of section 14 by the pursuer the sheriff principle concluded the pursuers were not entitled to serve a notice as there had been no contravention of the 2003 act. 
The bill was introduced into the Scottish parliament in 2001 and passed in 2003. Part 1 of the Act and the Scottish Outdoor Access Code came into force on February 9, 2005.
I find the explanatory notes online using the legislation website. www.legislation.gov.uk. How I done it was by searching any act I require information on. Once I have accessed that page I look at the tab under the title of the act. The explanatory notes tab is always the third option towards the right and also has a blue question mark symbol to make it easy to find. It then opens a table of contents relating to the act.
“Everyone has the statutory rights established by this part of the Act”
These are the rights to be on (and to cross land. Land includes all land, plus inland water and intertidal foreshore, plus above or below land. The right may be exercised only: for recreational purposes; for the purposes of carrying on a relevant educational activity, or; for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right
could carry on otherwise than commercially or for profit. Snowie -v- Stirling Council 2008 SLT (ShCt) 61
The purpose of negative prescription is to extinguish the right to claim after a certain period of time. There are two main periods known as the short and long negative prescription. If someone does not exercise their property right, the right is lost. For the short term it is 5 years under s6 of the Prescription and Limitation (Scotland) act 1973 and the long term is 20 years under s7 of the act. It douses an obligation.
Previous provisions have been replaced by sections 1 – 5 of the Prescription and Limitation (Scotland) act 1973. The purpose of positive prescription is to substantiate and confirm claims to the property after a set period of time. It can be used for two things; create new rights in land and also render the existing rights absolute.
For anyone who has a land certificate does not need to worry about their title being challenged. As, under the land register system in Scotland, prescription is not required. This is because title is guaranteed. Prescription only applies here when it runs on titles where indemnity has been excluded under s 1 of the Prescription and Limitation (scot) act 1973. Prescription differs in the Register of Sasines as it doesn’t guarantee title. The register of Sasines does not register title, only deeds. . Positive prescription is required to ensure registration is done effectively and can assist to obtain an unchallengeable title
Under the Prescription and Limitation (Scotland) Act 1973 c52 s1 it states that;
“If land has been possessed by any person… for a continuous period of ten years openly, peaceably and without judicial interruption… the real right shall be exempt from challenge”. Openly means the right has been acquired in an apparent way. Peaceably means there was no dispute over the possession. Without judicial interruption means the possession was not challenged by courts or similar actions. Title is required and must be ex facie and not forged. Good faith is not required.
The Irish government sought to promote sales of Irish goods, the object being to achieve a switch of 3% in consumer spending from imports to domestic products. It adopted a number of measures including: an information service indicating to consumers which products were made in Ireland and where they could be obtained (the Shoplink Service); exhibition facilities for Irish goods; the encouragement of the use of the “buy Irish” symbol for goods made in Ireland; and the organisation of a publicity campaign by the Irish Goods Council in favour of Irish products, designed to encourage consumers to buy Irish products. The first two of these activities were subsequently abandoned by the Irish Government, but the latter two strategies continued to be employed. The Commission brought Article 226 proceedings alleging the campaign was an MEQR. Ireland argued that it never adopted “measures” for the purpose of Article 28 and that any financial aid given to the Irish goods council should be judged in light of Articles 87 and 88 not article 28.
The ECT: the Irish government maintains that the prohibition against measures having an effect equivalent to quantitative restrictions in Article 28 is concerned only with the “measures” that is, to say binding provisions emanating from a public authority. However, no such provision has been adopted by the Irish government, which has confined itself to giving moral support and financial aid to the activities pursued by the Irish industries.
The Irish government goes on to emphasise that the campaign has had no restrictive effect on imports since the proportion of Irish goods to all goods sold on the Irish market feel from 49.2% in 1997 to 43.3% in 1980.
While it may be true that the two elements of the programme which have continued in effect, namely the advertising campaign and the use of the “Guaranteed Irish” symbol, have not had any significant success in winning over the Irish market to domestic products, t is not possible to overlook the fact that, regardless of their efficacy, those two activities form part of a government programme which is designed to achieve the substation of domestic products for imported products and is liable to affect the volume of trade between member states.
In the circumstances the two activities in question amount to the establishment of a national practise, introduced by the Irish government and prosecuted with its assistance, the potential effect of which on imports from other Member States is comparable to that resulting from government measures of a binding nature.
C-265/95 Commission v France (Spanish Strawberries) 1983
Intro: Since the accession of Spain to the European Economic Community (EEC) in 1986, French fruit (particularly strawberry) and vegetable producers have reportedly suffered economic losses from competition with Spanish producers. As early as 1985, French farmers began to take destructive actions against Spanish produce imported into France.
Case: French farmers (including Coordination Rurale) vandalized and destroyed produce being imported from other Member States. These incidents continued through 1997. Meanwhile, it was alleged that French officials did little or nothing to stop French farmers from destroying agricultural goods from other Member States. Particularly, it was asserted that French police who were monitoring the protests, failed to protect foreign trucks and produce from vandalism and destruction by French farmers.
Legal Problem/Question: On July 19, 1994, the Commission commenced proceedings under Article 169 of the EC Treaty, alleging that France had failed to fulfil its Treaty obligations. France replied that it had sought to combat the vandalism by implementing preventative measures and through prosecuting offenders in French courts. In response, the Commission formally issued a reasoned opinion pursuant to Article 169(1)” alleging France’s failure to meet its obligations and inviting France to comply with the opinion within one month of its issue.
Decision: The CJ faced a situation of civil disorder, by French farmers blocking imports of agricultural produce, contrary to Article 34 TFEU. Despite complaints by the Commission, the French authorities had failed to take any significant action to prevent the demonstrations, arguing that more determine action might lead to more serious breaches of public order or even social conflict. The CJ refused to accept these arguments: Apprehension of internal difficulties could not justify a failure by a MS to apply union law correctly… It was for a MS to guarantee the full scope and effect of that law, to ensure its proper implementation, unless that state could show that action by it could have consequences for public order with which could not cope.
On those grounds, the Court of Justice declared that by failing to adopt all necessary and proportionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals, the French Republic had failed to fulfil its obligations under article 30 of the EC Treaty, in conjunction with article 5 of that Treaty, and under the common organisations of the markets in agricultural products.
Intro: Commission Regulation 1153/75 requires all commercial movement of wine within the EEC to be accompanied by a ‘wine passport’ (form VA 1). Wine imported from one member-State into another may, therefore, lawfully be checked at the frontier to ensure that it is in fact accompanied by a VA 1 form, properly completed and issued by the authorities of the exporting member-State. The import of wine may lawfully be the subject of health inspections under Article 36EEC. In the absence of any reasonable suspicion on the basis of specific evidence in a given case, such inspections, if they take the form of analysis, should however be spot checks and not systematically applied to all or most of the total imports from a particular member-State.
Case: Between April 1980 and July 1981 the French authorities directed a number of communications to the Italian authorities with regard to certain irregularities or infringements which they had discovered in respect of transports of Italian wine. Thus there were two cases in which wine arrived in France in the tanks of ships in a polluted condition, in the one case through hydrocarbons and in the other case through paraffin. In the former case the pollution was caused by the fact that conversion work on a former oil tanker had not been carried out properly. In the latter case an Italian company was suspected of having transported in road tankers alternately wine and additives for lubricating motor vehicles. Furthermore, the communications in question related in particular to irregularities discovered in the VA 1 forms accompanying two consignments of wine and to a request for information on the steps taken in Italy with regard to the filtering of wine involving the use of asbestos. For more information, visit Notary public London Continue reading “Internal EU Law (Pre Brexit)”→