Head 10: Prescription Flashcards
What is prescription? Which statute governs it?
Prescription is the creation, alteration or extinction of rights through the running of time.
Prescription is governed by the Prescription and Limitation (Scotland) Act 1973 Part I.
What are the two types of prescription, and when do they apply?
There are two types of prescription: positive prescription, and negative prescription.
Negative prescription applies mainly to personal rights
Where rights are created the prescription is positive [Only a limited category of rights can be created by prescription - they are all real rights.] (acquisitive).
Where rights are extinguished the prescription is negative [Almost all rights will prescribe by non use.] (extinctive). If you fail to exercise rights for a period of time then you lose them - they (negatively) prescribe. Subordinate real rights can also be extinguished by negative prescription through non-exercise for 20 years (e.g. Where a servitude is not exercised for 20 years then, at the end of that period, it is extinguished).
Is the real right of ownership of land included in the rules of prescription?
In Short: (I) subordinate real rights can be extinguished by negative prescription
(Ii) ownership of land cannot (it is “imprescriptible” under PL(S)A 1973).
(Iii) nevertheless ownership of land can be lost by positive prescription in favour of someone else.
When do personal rights subscribe?
Obligations and (by s 15(2)) correlative rights.
⁃ Most rights prescribe after 5 years (s 6 & schedule 1 [ Paragraph 1 of schedule 1 lists the types of rights which prescribe after 5 years under s 6.
Paragraph 2 of schedule 1 lists certain types of rights which DO NOT prescribe after 5 years under s 6 (e.g. obligations relating to land)
Look up Barratt (Scotland) Ltd v Keith 1993 - this concerns the meaning of ‘obligations relating to land’.])
⁃ The remainder (other than imprescriptible rights) prescribe after 20 years (s 7)
⁃ For prescription to run, there must for the relevant period (5 or 20 years) have been neither:
⁃ (a) a relevant claim[ This essentially means a court actin by the creditor to enforce the obligation owed to him.] by the creditor (s 9), nor
⁃ (b) a relevant acknowledgement[ Either part performance of the obligation or an unequivocal written statement that the obligation is still due.] by the debtor (s 10)
When do real rights prescribe?
Right in a thing so no correlative obligation.
⁃ Real rights prescribe after 20 years (s 8).
⁃ For prescription to run, during this period there must have been neither:
⁃ (a) a relevant claim by the holder, nor
⁃ (b) exercise[ Common example - if a servitude is not used for 20 years then it prescribes.] of the right by the holder.
When does prescription start to run?
It begins to run at the point when the right first becomes enforceable (s 6(3), 7(1), 8(1))
What are imprescriptible rights?
⁃ There are some rights which do not prescribe (imprescriptible rights). These are listed in schedule 3.
⁃ One of these is very important: any real right of ownership in land does not prescribe.
⁃ However, ownership of moveable property does prescribe after 20 years.
What happens to property which prescribes?
It becomes ownerless and passes to the Crown (corporeal property)
What does positive prescription apply to?
It seems that it ONLY applies to real rights in land (not in corporeal moveables).
The rights which positive prescription applies to are[ Ownership and servitude are the most important in this regard.]: ownership, lease, standard security, proper liferent, servitude, NOT real burdens (s 1(3)).
So if a title is void or voidable, positive prescription can resolve the problem, provided that ten years have passed since the registration and there has been possession.
What does prescription cure?
Prescription cures both (I) invalidity and (II) voidability. There is an additional requirement that the person has an ostensible registered title. (So if Anna possesses land for 15 years, that is not enough, but if she possesses land for 15 years and there was also a registered disposition in her favour that is enough.
When does positive prescription start to run?
The 10 year period is calculated from either (I) the beginning of the possession of (ii) the registration of the deed, whichever is later.
When is prescription relevant?
Prescription is only relevant where the deed was void or voidable. The idea is that where there is a discrepancy between the facts on the ground and the legal position, there should eventually come a time when the legal position is realigned to match the reality — the law should not forever protect those who do not enforce their rights.
Is good faith a requirement for prescription to take place?
No — irrelevant whether the possessor knows the legal position.
What are the four possible instances of positive prescription?
⁃ 1) Registered real rights in land[ Most importantly ownership] (other than servitudes and real burdens) (s 1)
⁃ 2) Unregistered real rights in land (other than servitudes and real burdens) (s 2)
⁃ 3) Servitudes and public rights of way (s 3) - covered in semester 2.
⁃ 4) Real rights in corporeal moveables? - see above, probably not covered.
When does prescription apply to real rights in statute?
⁃ The LRA 2012 sch 5 para 18(1) has (prospectively) amended s 1(1) of the 1973 Act:
⁃ S 1(1):
⁃ “If land has been possessed by any person, or by any person and his successors, for a continuous period of ten years openly, peaceably and without any judicial interruption and the possession was founded on, and followed[ First requirement - possession for 10 years.] –
⁃ (a) the recording [ This is the second requirement if registered on the REGISTER OF SASINES.] of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in -
⁃ (i) that land; or
⁃ (ii) land of a description habile to include that land; or
⁃ (b) the registration of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in –
⁃ (i) that land; or
⁃ (ii) land of a description habile to include that land [ Second requirement - possession must follow the registration of a deed on the land register which constitutes a real right in favour of that person in the land.]
⁃ ⁃ then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge [The consequence. After 10 years you will have an unchallengeable right.].”
In practice, the requirement of possession means that prescription applies mainly to ownership and to long lease and so not to such subordinate real rights as rights in security.