Issues of Company Co-Ownership

Issues of Compevery Co-OwnershipMEMORANDUM 1i.When in a state of co- monomania, the decision to brand name alterations and repairs is one in which it is necessary, that two parties must(prenominal) invite do a familiar agreement before any changes be made to a present.1 It should in any case be nonable that in previous fictitious characters where exceptional circumstances arise and the holding is in penury of necessary repairs that any one of the co-owners is able to make changes to the property.2.This cigaret be determined by firstly and very fundament every farthermost(predicate)y establishing that they are in a co ownership,3 and also that the case provided trains changes made to the property are non repairs as defined as necessary operations in rebuilding, repairing.4 This center a unanimous agreement was at that placefore necessary and that the unless new(prenominal) way sea captain would be entitled to make the changes are seen in Rafique v Amin in which personal bar is referred which would simply when be relevant if bozo already knew ab disclose the changes that were going to be made but chose to do nonhing as even though no agreement was reached yet no objection was made.This is also seen not to be the case as seaman was not present or notified at the time of the alterations. Since alterations (not repairs) have been made to the property and not minor changes that are permissible, it can be quite clearly stated that master copy was not permitted to take up out such alterations on the flat. On the one hand there is room for succeeder to say that what is being proposed is so trivial as to fall within the principle enshrined in the brocard 5 , on the other hand it seems that the changes made could be classified as more than trivial so it seems that headmaster was not entitled to draw out out the changes made to the property.ii.The issue of whether Jack can do anything to keep open Victor from making more changes can be rather complex. As found in Barkley v Scott(1983) 10 Sh Ct Rep 23 and owner is quite entitled to make changes to a property as recollective as they are regarded as de minimis meaning that they are minimal such as antecedently mentioned above.6 This would be a an ordinary use of the property in which Jack could not bar although would need further enquiry.It should also be noted that unauthorised actions leave become subject to an interdict. This would prevent Victor from carrying out any more alterations to the property. Such action would require judiciary action which in fivefold cases sees declarator granted along with interdict and on occasion a reinstatement in favour of the pursuer who at the time was not contacted.7 It seems that in this case to stop Jack making further amendments an indictment would have to be placed upon him with the penalties for breaking such indictment becoming ever more serious.8So, it can be said with absolute certainty that the common proprietor ha s the adjust to veto that will therefore prevent further alterations on the property regardless of whether the property they are disputing over is able to be interchange or not.9 On occasion the pursuer ofttimes seeks for a financial return by means of constipations. This would see Victor have to pay for the damage he has done, although often the amount to pay out through damages is hard to quantify10 and it has been said that for a spoil there has to be shown to have suffered material damage from such a breach11. For that reason, sometimes the repayment of damage maybe in this case is not suitable.So, it can be said that perhaps indictment is one of the most feasible routes here to prevent Victor from making further changes to the flat. Often, this results in Jack who has been greatly inconvenienced to look to dispone his shares of the flat. This would be at Jacks fragility as whilst not directly linked to preventing Victor from making further unwanted changes to the flat t his often occurs when there is a break down in cooperation and in practice the best remedy for this is actually the bargain and division of the property.iii.Despite it being clear that Victor does not want Jack to conduct the property it can be hard to prevent. The selling of a property is of thought to often imagine on, mutual compatibility goodwill, and understanding.12 Providing that this still exists between Jack and Victor the usual step would be to sell shares of the property or sell the property as a whole.It is said in Latin that both in communionem nemo compellitur invitus detineri13 and that regardless of the relationship communion est mater rixarum.14 This is particularly significant in Victors case as it means that if the issue is raised in court each troupe as pro indiviso owners has an absolute entitlement to the right of division and sale.15When the division and sale takes place the property will either be sold all together and then split between co-owners or the property is physically shared into the extent of the shares so in this case it would be evenly split. This does seem to then favour division of the property which would prevent sale only, in a situation where it is seen as far from practical or grossly inconsistent it will end in the sale of a property.16 This is very much so relevant to issues involving common property that cannot be sold at all such as a commonly use stairwell,17 or that the co-owners are espouse in which case would have separate rules or that one of the co-owners has been sequestrated, both are irrelevant to Jack and Victor.18It is even possible that it is not sold on the market and that Jack can ask Victor to transfer his share of the of the property to him for half its value, however this is the right to spoil out is a contentious one but entirely plausible. It seems therefore, that there is very little Victor can do to prevent Jack from selling the flat.iV.As said previously situations in which property is sold is entirely diffe permit for married couples as they follow a separate set of rules regarding the sale of property between co owners. In Jack and Victors current situation at common practice of law both cohabitants initially had no legally recognised status. Although unmarried separation rights are the exact equivalent in property terms when the relationship breaks down it is then they are both distinguishable. Due to Jack and Victor not being married if their relationship was to break down their property would be divided into his his and theirs19 where each couple will claim exactly what is they individually own. This is different if Jack and Victor were married as if they were then the property would be divided into what it is felt each society needs, like in some cases for example, the husband will leave the marital home to be transferred to his ex-wife, along with the fact that matrimonial couples are seen as one unit rather than being treated as complete strangers. As at the end of a relationship in divorce it is to be shared personifyly20 as especial(a) circumstances can be accounted for and these decisions are frequently fully down to judicial discretion as it is then that it is decided to what property the property can be valued as. to what value it has. As at the end of divorce it is all calculated towards a figure as matrimonial property seems to only have significant importance during divorce proceedings which can lead to money being interchange to make a property transfer order. 21These are considerations Jack and Victor dont need to currently make as they are not married and the only process that would apply to cohabitants would be the Family Law Scotland Act.22 This only goes as far as giving the option of financial provisions and also to make for sure that goods are perceived as co owned, cohabitants have similar but not entirely equal occupancy rights (such as occupancy rights only up to 6 months ) as contained in the Matrimoni al Homes Act 1981. This highlights the problems of couples who live together outside of marriage (such as Jack and Victor) face when their relationship breaks down as while they have some rights protected by some Acts they are not as greatly protected as married couples are.iA exact can be defined as a contract between one person who grants permission for the other to use their property for a set amount of time in return for payment, which is known as rent. There are 3 types commercial, agricultural and residential property. Navid seemingly falls into the commercial property bracket.There are 4 principal(prenominal) elements for a valid lease to be present. The first is that there must be a general agreement between the two parties the lessor and the lessee. Secondly, there must be property. The lessee must be given willpower of the property and unless in special cases such as shooting rights which can be leased although this must be clarified so the subject of the lease is found .23 Rent is another which is usual paid sporadically and in most circumstance on a monthly basis but can be paid in various different ways such as through services and not only through money.24 The court may also find a lease exists as long as the other three elements are found.25 Finally for a lease to be valid there has to be a duration on the lease. So in theory it is allowed for a lease to last for many years.26 So far it can easily be established that both Navid and Isa have a valid lease in place.Furthermore, the formality of whether or not the lease was signed is irrelevant if the lease lasts one year or less, and longer and both parties must have a written agreement.27 So, if Navid has entered into a lease for over with Isa for it to be valid it is hoped that there was a written agreement in place along with the other four elements listed above.In most cases a lease will contain the rights of both the renter and the landlord. This is because the lease is recognised by the l aw with its own set of terms. The first is possession and that the landlord is have (so in this case Isa) to give the tenant what is known as natural possession, one that the landlord should not interpose with.28 The tenant as a consequence must be present in the property with only short absences allowed as without such a possession of the property the lease can be regarded as a material breach such as when a tenant was absent from a prison overdue to detention in prison.29The second reason is that rent must be paid by the tenant when it is due. The reason leases are so short and are often changed is due to changes in immaterial factors such as inflation, if the new rate set is not agreed on it is for the third party to decide, which will see the rent set in line with market rates.Thirdly, the property must be sufficiently plenished by the landlord to a reasonable standard in which it would be expected to be good for the payment of rent, as without this an interdict can be put in place against the land lord.30 The tenant is also obligated to use the property for the purposes of let and may not alter or lift this which will cause a breach of the lease, however, The Landlord is obliged to make sure that the property in apparent movement is fit for the circumstances under in which it will be let, which can lead Isa to be questioned on her upkeep of her property.Finally, the property must be maintained by the landlord, so the landlord must carry out the maintenance to the property within a reasonable time and if he does not he is liable.31 The landlord however is not liable if an Act of God occurs such as a flood, a third party causes damage ( in which case they are liable) or the tenant will be liable if they breach the obligation to take care of a property in which case they will be made to pay.There are reasons for either Landlord or tenant in this situation to bring the lease to an end. Firstly, Isa could get the need for the lease to end due to the f act Navid has not paid rent for the past 6 months. This is a clear obligation of a lease, and the onus is very much on Navid to pay that money. Without Navid remunerative that money it can be cause for Isa to take action against Navid the remedies available include what is known as action for payment. This remedy is typically used for situations including this one in which rent is not paid, this results in the executing of the lease which is often found as a clause within the lease. This enables a judge to carry out what is known as summary diligence which sometimes does not even need court action.32 Isa is also entitled to rescind the lease due to a material breach of a pecuniary obligation in which it would require her to give Navid a 14 day notice to pay the undischarged rent. Furthermore, Isa herself as a landlord has a right to the goods brought into the property by the tenant known as invecta et illata for rent. It however, seems Navid has the stronger case as Isa has quite clearly fell short of providing a suitable standard of property due to the dampness that has ruined Navids stock. This entitles him to either seek damages for the fact the landlord has failed to carry out the required repairs that will leed to Navid suffering monetary loss although defining the quantification of such a breach is difficult to determine. He is also able to seek the remedy of specific implement which sees the landlord required by the courts to carry out repairs on Navids shop. This is a remedy specific to Scottish courts which unlike England do not offer such a remedy to the keep open clause. A final option for Navid is to keep suspending his obligation to pay rent due to Isa breaching her obligation to repair the dampness on the premises as he is very much allowed to continue to retain the rent from Isa as long as he has not been paying her for months when she has been helplessness to meet her obligations.1 Rafique v Amin 1997 SLT 13852 Rafique v Amin 1997 SLT 13853 Cargill v Muir 18374 Bell Principles 10755 Rafique v Amin 1997 SLT 13856 Kleyn, D and Wortley, S Co ownership on Zimmerman, Visser and Reid Mixed Legal Systems.7 Rafique v Amin 1997 SLT 13858 http//www.lawscot.org.uk/news/2015/02/prison-sentence-for-john-odonnell/9 Deans V Woolfson 1922 SLT 16510 Barkley v Scott11 http//www.jandhmitchell.com/pdf/Title%20Conditions%20Fact%20Sheet.pdf12 Mclead v Cedar Holding Ltd. 1989 SLT 620.13 No one can be forced to remain in co ownership14 Common property is the mother of quarrels.15 Upper Crathes Fishing Ltd v Baileys Exrs 1991 SLT 74716 Thom v Macbeth 1875 3 R 161.17 Bells Principle 108218 Bankruptcy (Scotland) Act 1985, s 4019 http//www.terry.co.uk/cohabs.html20212223 Conway v Glasgow City Council 1999 SCLR 24824 Paisley Land Laww para 7925 Glen v Roy (1882) 10 R 23926 Welwood v Husband (1874) I R 50727 RoW(S) A 1995, S 128 Graham v Black and Stevenson29 Blair Trust Co v Gilbert30 Co-operative Insurance Society v Halford Ltd 1998 SLT 9031 Wol fson v Forrester 1910 SC 67532 Cowie v Martalo 2011 GWD 32-676