Prescription and Registration Flashcards
Broad definition
When an individual is in possession of property over a long period of time they can acquire ownership. There are conditions though.
Historic development
Originally required to provide loads of documents dating back. This was because positive prescription was resisted. It caused issues though as titles could be lost. Introduced Prescription Act 1617 which introduced acquisitive prescription for heritable property. If had possess with various feudal titles for over 40 years then owner. Register it in record of sasines
Sasines
Formal act where transferor of lands granted it grantee in possession. Used to be symbolic, but then changed gradually to written document known as instruments of sasine. Then began being recorded for ease of knowledge. If in possession of land based on instrument of sasine that is then registered then owner of that land. Prescription Act 1617 based on 40 years holding the intrustment that is registered though.
Normal use of conveyancing can be used as well though which would create ownership. Yet if the instrument of sasine wasn’t registered there would be an issue Young v Leith. Lords said it had no effect if unregistered
Land Registration (Scotland) Act 1979
This reformed the Prescription act 1617.
Section 1 - Possession of land for 10 years, which condition of recording of deed and what that deed constitutes
Introduced the Land Register, which at the time worked alongside the sasine register. Mere registration of the deeds would mean that the person becomes owner, which became known as the Midas Touch. Most transfers were made by owners, Keeper wouldn’t have to register it but often did and just left out indemnity. If registered with indemnity then it would mean that if lost then Keeper would make good the loss.
If in possession for 10 years then positive prescription would take place give him title exempt from challenge.
Loss of title but under normal property law then he wouldn’t have there was two systems operating at the same time.
Land Registration (Scotland) Act 2012
Superseded 1979 act, got rid of the Midas Touch, but keep indemnity.
Could only acquire ownership now if transactional error - If someone is fraudulent, means ownership does not pass
Yet if transactional error sold on then it becomes register error and that individual has ownership if possession has occurred for a year
Not longer possible to register in the sasine register must be in the land register.
Prescription of moveable property
Law is unclear. Institutional writers say yes, but positive prescription is a mere analogy with moveables.
Ramsay v Wilson - Argued it was theres but has to be over 40 years
Aberscherder v Gernie - Bells, thought it was moveable but held it to be negative prescription
SLC thought there should be positive prescription of moveables but halt to process, would be 20 years
