Head 10: Prescription

Question 1

What is prescription?

Answer 1

Prescription is the creation or extinction of rights through the lapse of time.

Question 2

What are the 2 types of prescription?

Answer 2

Positive prescription: Where rights are created the prescription is positive (acquisitive) This is limited to property law rights i.e. real rights in land.

Negative prescription: Where rights are extinguished the prescription - can apply to real rights and personal rights.

Rights are lost when they are not enforced. They are extinguished.

Question 3

What is the governing legislation concerning Prescription?

Answer 3

Prescription and Limitation (Scotland) Act 1973 Part I

Question 4

What does negative prescription mainly apply to?

Answer 4

Personal rights

Question 5

How many years does it take for a right to repay a debt to prescribe?

Answer 5

5 years

Question 6

What is the difference between negative prescription and limitation

Answer 6

Although negative prescription and limitation are both governed by PL(S)A 1973 there is a distinct difference.
Whereas negative prescription extinguishes an obligation, limitation does not, it bars the raising of an action except with the permission of the court. The limitation period is three years.

Question 7

How long does it take for subordinate real rights to be extinguished by negative prescription?

Answer 7

Through non exercise for 20 years PL(S)A 1973 S 8

Question 8

Can ownership of land be extinguished by negative prescription?

Answer 8

No, the right to ownership of land is imprescriptible in the sense that it cannot be lost by negative prescription, it is still capable of being lost by positive prescription

Question 9

What are the requirements for prescription to run?

Answer 9

For prescription to run, there must be for the relevant period (20 or 5 years) neither
a relevant claim by the creditor or a relevant acknowledgment by the debtor.

Question 10

What is positive prescription confined to?

Answer 10

Real rights in land e.g. ownership, lease, standard security, proper liferent and servitudes.

Question 11

What are the 4 possible instances of positive prescription?

Answer 11

1. Registered real rights in land
2. Unregistered real rights in land
3. Servitudes and public rights of way
4. Real rights in corporeal moveables

Question 12

What are the 2 requirements of acquisition of land by prescription

Answer 12

The two requirements are that the possession must have been for 10 years and that the person also has an ostensible registered title

Question 13

What are the purposes of positive prescription?

Answer 13

To validate deeds which are void or voidable. In this respect, prescription is like s 86 of the LR(S)A 2012, a method of shoring up a bad title

Question 14

What is the registered deed on which possession can be founded called?

Answer 14

The foundation writ

Question 15

What is the requirement for possession?

Answer 15

1. Open and peaceable
2. Sounded on the foundation writ (adverse)
3. Continuous and not broken by personal or judicial interruption

Question 16

What is a non domino disposition?

Answer 16

Where ownership of land is unclear, matters are sometimes settled by the use of a non domino disposition (a disposition granted by a non-owner)

Question 17

What are the requirements for the keeper to accept a non domino disposition?

Answer 17

1. The land has been possessed openly and peaceably for and
2. the grantee has notified the owner (if one can be found) or the Crown

Question 18

Does a grantee have to be in good faith for prescription to run?

Answer 18

No, but there is an exception for forgery

Question 19

why is prescription less significant in the land register compared to the sasine register?

Answer 19

The nemo plus rule is disapplied sometimes in some types of cases involving the land register. Even if it was not disapplied and the title is rendered invalid, most good faith acquirers will enjoy the protection of the keepers title warranty so that if they lose the property they can benefit from receiving compensation.