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Essays in Conveyancing and Property Law in Honour of Professor Robert Rennie

Essays in Conveyancing and Property Law in Honour of Professor Robert Rennie

Frankie McCarthy
James Chalmers
Stephen Bogle
Copyright Date: 2015
Published by: Open Book Publishers
Pages: 422
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  • Book Info
    Essays in Conveyancing and Property Law in Honour of Professor Robert Rennie
    Book Description:

    Professor Robert Rennie has been one of the most influential voices in Scots private law over the past thirty years. Highly respected as both an academic and a practitioner, his contribution to the development of property law and practice has been substantial and unique. This volume celebrates his retirement from the Chair of Conveyancing at the University of Glasgow in 2014 with a selection of essays written by his peers and colleagues from the judiciary, academia and legal practice. Each chapter covers a topic of particular interest to Professor Rennie during his career, from the historical development of property law rules through to the latest developments in conveyancing practice and the evolution of the rules of professional negligence. Although primarily Scottish in focus, the contributions will have much of interest to lawyers in any jurisdiction struggling with similar practical problems, particularly those with similar legal roots including the Netherlands and South Africa. As a whole, the collection is highly recommended to students, practitioners and academics.

    eISBN: 978-1-78374-149-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Contributors
    (pp. vii-vii)
  4. Preface
    (pp. ix-ix)
    Frankie McCarthy, James Chalmers and Stephen Bogle
  5. Notes
    (pp. x-x)
  6. 1. Robert Rennie – A Career Retrospective
    (pp. 1-14)
    Lord Bonomy

    I don’t think that it is just with the benefit of hindsight that I see the course of Robert’s career as having been plotted by the time he first graduated, still not yet twenty years of age. Like so many of his contemporaries from a modest or working class background, determined to make the most of the educational opportunities of the mid-1960s, he thrived in a student environment that in many ways resembled the school classroom. In his final undergraduate year, almost alone among his colleagues, he positively wallowed in conveyancing. It was a demanding class with five 9am lectures...


    • 2. “Tell Me Don’t Show Me” and the Fall and Rise of the Conveyancer
      (pp. 15-34)
      Kenneth G C Reid

      Property law, observed Robert Rennie in 2010, has come to be marginalised by registration practice.¹ With the move from a system of registration of deeds to one of registration of title, the rights of parties were determined by what, on first registration, the Keeper was prepared to allow on to the Land Register. No doubt, in making such decisions the Keeper had regard to the law of property. But the Keeper’s property law might not be the same as the property law of the applicant’s solicitor – or indeed, that solicitor might contend, as the property law of Scotland.² No matter....

    • 3. A Puzzling Case about Possession
      (pp. 35-46)
      Lord Hope of Craighead

      One of Robert Rennie’s skills as an academic commentator was to identify cases that were worth drawing attention to because he thought that something might have gone wrong. Not infrequently he did this by means of an article in the ScotsLaw Times. One such case which was the subject of an article which he wrote in 1994 isHamilton v McIntosh Donald Ltd.¹ It was a case about an area of rough peat moss in Aberdeenshire known as the Moss of Balqhuarn, part of a larger area known as Portlethen Moss. There were no buildings on it, and it...

    • 4. “It’s in the Post”: Distance Contracting in Scotland 1681-1855
      (pp. 47-72)
      Hector L MacQueen

      In 1684 the Duke of Gordon engaged Robert Smith to serve him and his family “in chirurgery and physic, and also to supervise his buildings and architecture” – an interesting combination of medical and property services. Smith’s salary was to be 200 merks a year plus board when the Duke was at home and a daily subsistence allowance otherwise. Smith and the Duke each signed a copy of their agreement, then exchanged these copies. Some seventeen years later, in 1701, Smith obtained decree from the Sheriff at Edinburgh against the Duke for non-payment of 2,823 pounds Scots due under the contract,...

    • 5. Assignations of All Sums Securities
      (pp. 73-96)
      Ross G Anderson

      Robert Rennie was appointed the Professor of Conveyancing in 1993. During a tenure marked by indefatigable industry, Robert’s chair became, in the eyes of the profession, the face of the Glasgow Law School. With Robert’s retirement, there comes the opportunity to reflect not just on Robert’s contributions, but also on the place of the Chair he has held with such distinction in the Scottish legal profession, in legal education and in legal scholarship. So before addressing the technical topic I have chosen for my contribution, it is first to the history and context of the Chair that I turn.



    • 6. Property Law, Fiduciary Obligations and the Constructive Trust
      (pp. 97-114)
      Lord Hope of Craighead

      Insolvency is the acid test of property rights. Bankruptcy law and the law of corporate insolvency give – or should give – definitive answers to the question “who owns what?” It was in the quest for such definitive answers that I first befriended Robert Rennie. And over the years he has taken great delight in introducing me at his annual dinner for the brightest students in his property law honours class at the University of Glasgow as counsel on the losing side inSharp v Thomson

      In that case I was junior counsel for the receivers of Albyn Construction Ltd and Robert...

    • 7. The Offside Goals Rule and Fraud on Creditors
      (pp. 115-140)
      John MacLeod

      I understand that, as a student, Professor Rennie was known to miss the occasional conveyancing class in order to play football. This siren call is not the only danger that the beautiful game has posed for Scots property law. It also gave us a name, and a dubious metaphor, for the so-called offside goals rule.

      Few areas of Scots property law have attracted as much modern scholarly interest.¹ One of the reasons why the rule might appear unworthy of the fuss is the simplicity with which the core case may be stated. The classic instance is double sale: Alfred concludes...

    • 8. A New Era in Conveyancing: Advance Notices and the Land Registration etc. (Scotland) Act 2012
      (pp. 141-164)
      Ann Stewart

      For decades, property lawyers in jurisdictions other than Scotland expressed astonishment that Scottish solicitors effectively underwrote their seller client’s obligation to a purchaser to provide, after settlement, records in the property and personal registers that would be clear of any entry, deed, decree or diligence, which was either prejudicial to the validity of, or was an encumbrance on, the seller’s title to the property. Solicitors did this by granting to the purchaser, by way of formal letter to the purchaser’s solicitor, a firm’s undertaking either that the records would be clear, or to clear them if they were not. The...

    • 9. Bona Fide Acquisition: New in Scottish Land Law?
      (pp. 165-184)
      David Carey Miller

      It is a privilege and a pleasure to write in recognition of the outstanding contribution of Professor Robert Rennie. The law and legal education of Scotland has traditionally recognized the subject of conveyancing as one demanding acute legal skills directed to matters of obvious social utility. Robert Rennie has been a standard-bearer in the field.

      The Land Registration etc. (Scotland) Act 2012 (“2012 Act”) has been described as a “bold step forward” by Scottish conveyancing specialists Professors Robert Rennie and Stewart Brymer.² The primary purpose of the 2012 Act is to provide a new legislative base for the Land Register...


    • 10. Res Merae Facultatis: Through a Glass Darkly
      (pp. 185-202)
      Douglas J Cusine

      When Robert and I went to study Law at the University of Glasgow in 1964, one of the entrance requirements was a pass in what was then called “Lower” Latin, later an “O” level and now a Standard Grade. In the class on Civil (Roman) Law, there were frequent mentions of Latin, without any translation, and in it and the other classes such as Scots Law, there was an assumption that the audience had some idea of what the various Latin terms meant. At present, any such assumption would be misplaced. I do not know when the requirement for Latin...

    • 11. The Use of Praedial Servitudes to Benefit Land outside the Dominant Tenement
      (pp. 203-236)
      Roderick R M Paisley

      Throughout my entire legal career I have had the pleasure of discussing property law with my good friend Robert Rennie. Having learned much in the process, I hope that I have contributed at least a little. Such discussions were of particular value where the issue was one upon which only brief comment was available in the published legal literature. One of the issues that cropped up in our conversations is the subject matter of this essay. We both recognised that it was a topic requiring some detailed research. Having now had the opportunity to carry out that research I have...

    • 12. Enforcing Repairing Obligations by Specific Implement
      (pp. 237-254)
      Angus McAllister

      Repairing obligations in leases may either be owed by the landlord to the tenant or vice versa, depending upon which of them has responsibility for the repair in question. Which party owes the obligation is likely to vary according to the type of lease. At common law, all landlords of urban leases have an obligation to provide subjects in a tenantable or habitable condition, and to maintain them in a like condition throughout the let.¹ However, most commercial leases are granted on a full repairing and insuring (FRI) basis, contracting out of the common law and making repairs the responsibility...

    • 13. Two Questions in the Law of Leases
      (pp. 255-278)
      Lord Gill

      In his years as a practitioner and as holder of the Chair of Conveyancing at Glasgow University, Professor Robert Rennie has served his profession and hisalma materwith distinction. His contribution to the development of our property law is fittingly recognised by the publication of thisFestschrift. It is a privilege to contribute this essay in honour of my good and esteemed friend.

      In this essay I consider the meaning and effect of the decision of the House of Lords inClydesdale Bank plc v Davidson.¹ That decision raised two fundamental questions; namely, the nature of the rights of...


    • 14. Conveyancing: A Bright Digital Future?
      (pp. 279-300)
      Stewart Brymer

      We are all accustomed to how heritable property transactions work – and sometimes do not work. If we were creating a property transfer system from scratch today, what would it look like? Indeed, how might a conveyancing system operate in, say, 2050? Is it too fanciful to suggest that transactions will be carried out electronically from start to finish with electronic paperwork, electronic examination of title and a clean and accessible Land Register holding all information relative to land and property in Scotland with experienced property lawyers advising clients on the important aspects of the transaction assisted by trained legal executives?...

    • 15. Islamic Mortgages
      (pp. 301-316)
      George Gretton

      In most countries property law is, or at least is seen as being, dry and dull. And in most countries links between property law theorists and property law practitioners are weak. Not so here. Far from being dry and dull, property law in Scotland is, and is seen as being, exciting, fun and often – in a good sense – funny (thanks, Robert) funny. Strong links exist between theory and practice (thanks again, Robert). This paper has no laughs, but has something in it of practice and theory.

      I hesitate to write on Islamic mortgages for a good reason: I am unqualified...

    • 16. Completion of the Land Register: The Scottish Approach
      (pp. 317-344)
      John King

      Scotland can lay claim to the world’s oldest, still running, public property register. Dating from 1617,¹ the Register of Sasines has witnessed the industrial revolution, the extension of the franchise and the spread of property ownership. It is a real success story; the authors of the Act got it right first time, and deed registration became a concept which was subsequently adopted, in various guises, across the world.

      Scotland also has one of the most recent land registration systems by international standards. The Land Register was a late introduction to Scotland: the Land Registration (Scotland) Act 1979 (“the 1979 Act”)...


    • 17. Primary Clients, Secondary Clients, Surrogate Clients and Non-Clients – the Expanding Duty of Care of Scottish Solicitors
      (pp. 345-366)
      Kenneth Swinton

      Until the publication by Professor Rennie of his monographSolicitors’ Negligence¹ in 1997 there was no coherent treatment of the liability of Scottish solicitors for their negligent acts or omissions. Thereafter Professor Rennie published a volume of opinions on professional negligence² and has published a stream of articles which relate to the professional practice of conveyancing. He has continued to make himself available for opinion work as well as appearing as an expert witness in many cases. Law and practice has continued to develop over the last two decades and this chapter considers how factors have developed which may have...

    • 18. The Court and the Conveyancing Expert
      (pp. 367-380)
      Lady Paton

      The traditional litigation landscape once familiar to the conveyancing expert is undergoing considerable upheaval. The development of automated and electronic technologies, a question-mark over immunity from suit, and the recommendations in Lord Gill’s Scottish Civil Courts Review Report,¹ are some of the changes bringing about a new and unfamiliar environment.

      Not every lawyer aspires to an automated and paperless world. John Mortimer possibly spoke for many when he observed through his fictional character barrister Horace Rumpole (habitué of the Old Bailey and the Uxbridge Magistrates Court):²

      Things, I regret to have to say it, have not improved since those distant...

    • 19. The Role of the Expert Witness in Professional Negligence Litigation
      (pp. 381-394)
      Gerald F Hanretty QC

      Expert or skilled witnesses are objectionable. Needless to say, that observation is not directed towards the characters, qualities, learning or experience of those not infrequently called to assist parties and the court in litigation. Rather, the leading of such evidence necessarily results in material being presented to the court which is, by its nature, opinion evidence and accordingly objectionable – and, in the absence of justification, therefore inadmissible.

      Issues in relation to the admissibility and use of opinion evidence have long been the subject of debate throughout the English-speaking world. Indeed, in the 21st-century it is worthwhile reflecting upon the observations...

    • 20. Robert Rennie: A Bibliography
      (pp. 395-402)
  12. Index
    (pp. 403-406)
  13. Back Matter
    (pp. 407-411)