Head 10: Prescription

Question 1

What is prescription? Which statute governs it?

Answer 1

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.

Question 2

What are the two types of prescription, and when do they apply?

Answer 2

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).

Question 3

Is the real right of ownership of land included in the rules of prescription?

Answer 3

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.

Question 4

When do personal rights subscribe?

Answer 4

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)

Question 5

When do real rights prescribe?

Answer 5

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.

Question 6

When does prescription start to run?


Answer 6

It begins to run at the point when the right first becomes enforceable (s 6(3), 7(1), 8(1))

Question 7

What are imprescriptible rights?

Answer 7

⁃ 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.

Question 8

What happens to property which prescribes?

Answer 8

It becomes ownerless and passes to the Crown (corporeal property)

Question 9

What does positive prescription apply to?

Answer 9

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.

Question 10

What does prescription cure?

Answer 10

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.

Question 11

When does positive prescription start to run?

Answer 11

The 10 year period is calculated from either (I) the beginning of the possession of (ii) the registration of the deed, whichever is later.

Question 12

When is prescription relevant?

Answer 12

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.

Question 13

Is good faith a requirement for prescription to take place?

Answer 13

No — irrelevant whether the possessor knows the legal position.

Question 14

What are the four possible instances of positive prescription?

Answer 14

⁃ 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.

Question 15

When does prescription apply to real rights in statute?

Answer 15

⁃ 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.

Question 16

What are the detailed requirements of prescription for acquiring the real right in land?

Answer 16

1. Title
   ⁃ A) There must be a registered deed on which possession can be ‘founded’ (“foundation writ”).
   ⁃ B) The deed must be capable of creating the right claimed[So the land described on the Register must ‘match up’ with the land you possess.

If the deed is highly specific (as in the modern Sasine dispositions, or the Land Register) then this may limit how useful the deed is for prescription. The reason is that you cannot prescribe beyond a bounding title - so if the boundaries are precise then they circumscribe what you can prescribe. Whereas if the boundaries are more loosely defined then you can possibly prescribe more land.

One of the key areas where this is relevant is boundary disputes between neighbours - often neighbours will possess slightly more or less than they rightfully own by a meter or two. If the description was vague then prescription could operate. However, since now boundaries are very well described with reference to the cadastral map, prescription will not be able to operate.]
⁃ What this means in practice depends on which Register the land is registered in: Register of Sasines or Land Register

2. Possession
   ⁃ A) You must possess the land for 10 years (except where s 1(5) applies)
   ⁃ B) Possession may be civil or natural (s 15(1)). .
   ⁃ C) Possession may be by a person and his or her successors.

D) Quality of possession
Under the Act, possession must be:
. (a) Open and peaceable. [The true owner must know, (or be alerted?) about the possession - it cannot be done in secret.]
. (b) Founded on the foundation writ. Hence ‘adverse’. This means that the possession must be linked to the deed on the Register. So if the possession has some other explaintion other than the deed on the Register then it will not be sufficient for prescription. See Houstoun v Barr 1911 SC 134.
. (c) Continuous. – Possession can be animo solo (by intention alone).

But if you are interrupted then you must start the prescriptive period all over again.

There are two ways it could be interrupted: physically or judicial interruption (where someone raises a court action which has the effect of challenging your possession - defined in s 4)]

So possession obtained and maintained by force does not count.

Question 17

What happened in the case of Houstoun v Barr 1911 SC 134?

Answer 17

• someone was a tenant under a lease and were in possession of the property. They put a deed onto the Register to become owner. At the end of the prescriptive period they told the landlord that they had become owner because they had possessed for 20 years. The court rejected this because there possession was not based on the deed that they put on the Register, rather it was based on the lease. Accordingly there was nothing to notify the landlord that the tenant was possession for the purpose of prescription.]

Question 18

The deed must be capable of creating the right claimed: How does this meaning differ if real right in land is registered in the Land Register and the Sasine Register?

Answer 18

Register of Sasines
• In the Register of Sasines, the descriptions found in dispositions and other deeds vary from the sketchy to the detailed.
• Today descriptions are often done by reference to plans but in earlier times they relied on verbal descriptions which were sometimes extremely vague.

Land Register
⁃ Descriptions must be in reference to the title sheet and the plan - based on the cadastral map.
C) For Sasine deeds only[ KR thinks that it is a mistake that this does not apply to Land Register deeds too.]: deed must not be invalid ex facie. (ie on its face).
• But latent defects do not matter. So does not matter that actually invalid, eg because granted a non domino. And does not matter that possessor knows this, for good faith is not required.
⁃ There is no requirement that the deed actually be valid[ This applies for both Land Register or Sasine deeds. The difference is that for Sasine deeds, there is a requirement that the deed not be ex facie invalid. This suggests that for Land Register deeds, they could be ex facie invalid and still be applicable.]. There must simply be a deed on the Register which purports to convey the property. The rule for Sasine deeds is that if the deed is invalid then that invalidity must not be obvious from the face of the deed.
⁃ For a deed to be ex facie invalid it must be ‘self-destructive’
⁃ This distinction was brought out in the cases of:
⁃ Watson v Shields 1994 - “.. considering that we have occupied the subjects hereinafter disponed continuously since 1955, openly, peaceably and without any judicial interruption, but without a title to”. - Since the deed itself acknowledges that they do not have title, the deed was ex facie invalid.
⁃ Landward Securities (Edinburgh) Ltd v Inhouse (Edinburgh) Ltd 1996 - “.. the said open yard lying to the west of said subjects and the access lanes and passages connected with the same but only so far as I have right thereto”. - This states that they might not have right to the property, but it is not an unequivocal acknowledgement that they don’t. Therefore the deed was not ex facie invalid.

Question 19

What happens where the deed for real right in land is invalid by forgery?

Answer 19

If the invalidity of a deed is based on the fact it has been forged then this excludes the operation of prescription - s 1(2).

Question 20

What are the rules for prescription in relation to possession?

Answer 20

A) You must possess the land for 10 years (except where s 1(5) applies)

B) Possession may be civil or natural (s 15(1)). .

C) Possesion may be by a person and his or her successors.

D) Quality of possession
⁃ Under the Act possession must be:
⁃ 1) Open and peaceable[ The true owner must know, (or be alerted?) about the possession - it cannot be done in secret.]
⁃ 2) Founded on the foundation writ
⁃ 3) Continuous[ Possession can be animo solo (by intention alone).

But if you are interrupted then you must start the prescriptive period all over again.

There are two ways it could be interrupted: physically or judicial interruption (where someone raises a court action which has the effect of challenging your possession - defined in s 4)]

Question 21

Does it make a difference to prescription if the Keeper knows a deed is void before registration?

Answer 21

If the Keeper knows a deed is void it will not be accepted for registration, and so prescription can never run. However where the Keeper does not know the position or mistake, following registration, prescription can run in favour of the grantee.

Question 22

How are matters settled when the ownership of land is unclear, or the Keeper does know that a disposition is wholly or partly void, because the granter has no title, but the Keeper nevertheless accepts it?

Answer 22

By the use of an a non domino disposition (ie a disposition granted by a non-owner). But while anyone can be the granter of such a deed, this must be a disposition from A to B and not from A to A.

Question 23

When will the Keeper grant a non domino disposition?

Answer 23

The legislation only allows the acceptance of a non domino disposition as a means of bringing legal title back into line with de facto title.

The Keeper will generally only accept a non domino deed where

(1) the property was already possessed by the granter for at least one year;
(2) the person who appears to be the true owner has been notified (or reasonable attempts have been made to notify them.

Question 24

What happens where the Keeper accepts a non domino disposition?

Answer 24

On the Land Register any entry made in response to an a non domino disposition is marked as’provisional [This indicates that you aren’t actually the owner since the deed is invalid. If you are able to then possess for 10 years you can return to the Register and the Keeper will remove the ‘provision’ status.]’ and remains marked in this way unless or until prescription has run (s 44). The Keeper
also is likely to exclude her warranty (s 75(1)(b)(ii)). Ownership will only pass, if at all, only ten years later.

Question 25

What happened in the case of The Board of Management of Aberdeen College v Youngson [2005] ?

Answer 25

⁃ This involved a party granting a disposition by themselves in favour of themselves.
⁃ It was held in this case that this type of deed is not acceptable for prescription.

In the past it was easy to get dispositions put on the Register. Around 20 years ago the Register
began to be less inclined to register these deeds. They decided that if it was a blatant attempt to
steal someones property then they should not be allowing this.

Question 26

What are the rules under the LRA 2012 about what types of deeds the Keeper will accept?

Answer 26

The LRA 2012 now contains rules about what type of deeds the Register will accept in s 43-45. These rules are quite strict
⁃ The Keeper can only accept a non domino dispositions if (s 43(3), (4)):
⁃ i) the land has been possessed openly and peaceably for a year [So there must already have been a year’s possession.] by the granter and/or grantee and
⁃ ii) the grantee has notified the owner [Obviously unpopular with people trying to ‘grab’ land. This provision has significantly limited the scope of positive prescription. Prescription is most likely only to be possible now where the owner cannot be found or identified - particularly in relation to Sasine titles.] (if one can be found) or the Crown (otherwise) (s 43(3), (4)).
⁃ The Keeper, separately, must notify the owner or the Crown and must refuse the application if an objection[ Objection by a live owner for example.] is made within 60 days (s 45)

Question 27

What is the effect of positive prescription?

Answer 27

1) Cures invalid (void) foundation writs - so prescription creates ownership[ Or perhaps other real rights.

This is a form of original acquisition.].
⁃ The person who was owner is no longer owner.
- so original acquisition. See 1973 Act s 5(1A) (inserted by LRA 2012 sch 5 para 18(4) (‘exempt from challenge’ includes the ‘acquisition of the real right by the possessor’). Ownership subject to existing real rights and title conditions.

2) Cures voidable foundation writs
⁃ So if the foundation writ was valid but voidable (e.g. offside goal, fraud) then after 10 years voidability is eliminated.

3) Provides conclusive proof of validity of foundation writ
⁃ This is the most important use of prescription in the Sasine Register.

4) Resolves boundary disputes
⁃ Only where the deeds themselves are sufficiently flexible in their description.

Question 28

In year 1 A grants a disposition to B. B registers in the Land Register. In year 5 B grants a disposition C who registers. It is now year 11. What is C’s position?

Variant 1: The title conferred on C was voidable because B had earlier concluded missives with Z.

Answer 28

⁃ Anything which was wrong with the title more than 10 years ago has now been cured. So if the original disposition (A –> B) is void then this is cured. If the original disposition (A –> B) is voidable - then this voidability is now cured.

⁃ Since this defect only occurred 5 years ago, this defect is not cured in year 11. Another 5 years possession would be necessary to cure this defect.

Question 29

When do Unregistered real rights (s 2) prescribe?

Answer 29

20 years.

Question 30

What are the rules for calculating prescription time?

Answer 30

S 14 describes the rules for calculating time.
S 13 - you cannot contract out of prescription
S 24 - the Crown is bound by prescription, so you can prescribe rights against the Crown.

Question 31

Does the PL(S)A 1973 apply to corporeal moveables?

Answer 31

No -

Question 32

How can you tell that a person you are buying corporeal moveable property from owns the property?

Answer 32

You can’t.
⁃ However the law gives an evidential presumption that somebody who possesses moveable is presumed to be the owner. This only ever actually matters if litigation results - if there is a title dispute then the onus is on somebody who want to disprove that the possessor is owner.
- So
(a) possession presumes ownership
(b) title of true owner is extinguished by long negative prescription (s 8) except against a thief or one privy to the theft (sch 3).

So for negative prescription for corporeal movables, s 8 probably applies.. After 20 years of non-possession, J loses ownership of the painting BUT this does not mean that K gets ownership, the Crown does.
- The law is unclear as to positive prescription for corporeal moveables however most are of a limited lifespan so prescription is not usually a relevant issue.

• NB no clear rule, but the Scottish Law Commission has recommended that a 20 year period for positive prescription should be enacted for corporeal moveable property.

Question 33

What is the function of prescription in relation to determining ownership of land resgistered on the Sasine Register?

Answer 33

• The nemo plus principle always applies and there is no Keeper’s warranty of title.
• Prescription therefore plays a vital role in the Sasine Regsiter.
  ⁃ Therefore it is difficult to determine if the person you are buying from is the owner. Since title is derivate you have to trace back all the previous dispositions to make sure that all are valid going right back to the first one - to the beginning of time!
  ⁃ Accordingly, this system becomes very tedious and prescription steps in. It provides that any deed which is more than 10 years old is the foundation for prescription. So instead of checking every deed, you must check the first deed which is more than 10 years old - this is the foundation writ. So long as it is not ex facie invalid and there has been possession for the past 10 years, then regardless of whether this deed was actually invalid, this has been cured by prescription.
  ⁃ This is the most important function of positive prescription in everyday property law.
• For Sasine land exhaustive examination of title is avoided by the 10 year rolling period of positive prescription.

Question 34

How do you determine who is owner on the Land Register?

Answer 34

If a property is on the Land Register then it is very easy to determine who is the owner. If a person is registered as owner in the proprietorship section of the title sheet then you will be safe to buy from them because either that person is the owner[ Almost certainly.], or you will be covered by s 86.

• Where B buys a property in good faith from C, he is protected from any invisible invalidity in C’s title. This is because of (1) the nemo plus principle is disapplied in many types of case involving the Land Register, so B will probably become the immediate owner and (2) even if the nemo plus rule is not disapplied, so the title is invalid, he will usually enjoy the protection of the Keeper’s title warranty, so if he loses the property he can be sure of receiving compensation.
• For Land Register land the large pile of title deeds is replaced with a single title sheet, guaranteed by the state. And, because of LRA 2012 s 86, the person entered on the title sheet as owner can be taken by an acquirer to be owner without the need for further investigation.

Question 35

You are buying a house for a client from Z. The large pile of title deeds includes the following: disposition from T to U of 1988; disposition from U to V of 1990; disposition from V to W of 1993; disposition from W to X of 2004; disposition from X to Y of 2004; disposition from Y to Z of 2005. Which deed is the foundation writ?

Answer 35

The foundation writ is the disposition in 1993 - it is the first disposition which is more than 10 years old.