Topic 3: Positive Prescription

I. Concept and Purpose of Positive Prescription

The concept of positive prescription

• Positive prescription: acquisition of rights by the passage of time.

• Modern law contained in Prescription & Limitation (Scotland) Act 1973 - acquisition of ownership by PP

only possible for land

• 2 requirements: title & possession

• Can proceed on the basis of a deed granted by a non-owner (a non domino)

The purpose of positive prescription

• To render a defective title unchallengeable (both void and voidable)

• To fix the extent of a title

• To promote ease of conveyancing

• Note that the Keeper will not register speculative dispositions a non domino

– Land Registration etc (S) Act 2012, s.43

II. Operation of Positive Prescription

Requirements of prescription – registered real rights

• 1973 Act, s.1

• Applies to any real right which is registrable in the Land Register, other than real burdens, servitudes and

public rights of way

• Primarily concerned with ownership and leases

Requirements of prescription – registered real rights (s.1)

• Land must be possessed.

• Possession must be:

– open;
– peaceable;
– without judicial interruption;
– continuous;
– last for ten years.
• The possession must be founded on a recorded or registered title capable of constituting a real right in

the land.

Requirements of prescription
• To acquire ownership by prescription, two things are needed:

– first an apparent title in the Land Register or Register of Sasines (the foundation writ);
– followed by ten years’ continuous possession of the land, openly, peaceably and without judicial
interruption

Need for title

• The title must be capable in its terms of constituting the right sought to be acquired in the land in

question: the term often used is that the title is “habile to include” the land to be acquired.
– Suttie v Baird 1992 (in Register of Sasines, descriptions often vague & poor quality
– Auld v Hay 1880 (area of land owned in 7th shares, 2 individuals owning between them 3/7ths of
property, granted deed conveying “the several shares belonging to us” of land in question. Court
held sufficient description for prescriptive acquisition of ownership of whole property. As deed did
not state extent of granters shares, equally consistent with their shares adding up to 100%. This
was case even though, presumably, granters of deed only intended to convey a 3/7ths share)
• No prescription beyond a bounding title, or where the title is otherwise incapable of the construction

contended for.

Recorded title must not be ex facie invalid or forged

• Examples of ex facie invalid deeds:

– deeds granted by a party in own favour (Aberdeen College v Youngson 2005 - Lord Menzies:
"Transfer of property essential for effective conveyance in land. Person cannot dispone piece of

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 land from himself to himself in exactly the same status or category, because no transfer will have
resulted.”
– deeds not complying with Requirements of Writing (Scotland) Act 1995
– deeds stating that granter does not have title (Watson v Shields1994,1996 - Req. for presciption of
deed in Sasine register, it must look valid & not be "self-destructive". Here person drawing up deed
was v.honest, claiming they have no title and thus it was self-destructive)

• Deed must not be forged (i.e. it must be executed by party identified as granter in the deed) or, in the
Land Register, the grantee must not be aware of any forgery.

What is possession?
• Possession is the physical occupation of the property with the intention to hold on one's own behalf (Stair,

Inst. 2,1,17) involves “detention and holding” of the property, must be physical control not symbolic
• How much control is necessary?

– Stair, Inst. 2,1,13 (“He who possesseth a field, needs not go about it all, or touch every turf of it, by
himself or his cattle, but by possessing a part, possesseth the whole..”)
– Bain v Carrick 1983 (extent of land possessed normally judged by boundary features present e.g.
walls, fences, rivers. Principle that anything outside physical boundaries of land normally not
possessed - held occupier of land did not possess land outside the fence, where there was no
direct access to that area from the rest of land. For possession of the land outside the fence,
separate acts of possession needed)
• Once acquired, possession may be continued without further physical acts (possession animo solo)

• Possession may be lost (Stair, Inst. 2,1,20):

– by contrary possession
– by loss of control
– by loss of intention to possess

Openness of possession
• Required in order to alert owner of land that an adverse right is being asserted.

• The level of openness required will depend on the nature of the subjects.

– Hamilton v McIntosh Donald 1994 (property not in condition that allows very much active use, fairly
minimal acts accepted as sufficient for possession. Farmland where claimants had allowed people
to shoot and dump waste on the land)
– Stevenson-Hamilton's Exrs v McStay (No 2) 2001

Need for possession to be peaceable

• Prescriptive possession must be peaceable

• Possession which is open but which is maintained by force would not count towards the prescriptive

period

Judicial interruption
• Defined in s.4(1) as meaning “the making in appropriate proceedings, by any person having a proper

interest to do so, of a claim which challenges the possession in question”.

• Includes both court proceedings and arbitration.

Continuity of possession
• No need to exercise possession at all times – possession animo solo will be presumed, as long as there is

not too long a gap.

• However, need for continuous possession means that any interruption of possession, whether lawful or

unlawful, will interrupt prescription.

– Stevenson-Hamilton's Exrs v McStay (No 2) 2001

Protection of possession - possession is a protected state, not because possession gives right to property
nut because in public interest to ensure disputes resolved in orderly manner. “possession may not be
recovered by violence, but by order of law”. Correct way to recover possession is through court action or
consent of possessor. Wrongful dispossession = spuilzie. In spuilzie “pursuer needs no other title but
possession” Pursuer need only show 2 things; he/she was in possession of property & he/she was
dispossessed by defender.

Requirements of prescription: unregistered real rights

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• Section 2 creates equivalent provisions for deeds not requiring registration, with prescriptive period of
twenty years.
• Main example long lease – now less important.
• Does not apply to ownership, servitudes or public rights of way.

Requirements of prescription: servitudes and public rights of way

• Dealt with in s.3.

• Prescriptive period of twenty years, whether registered or unregistered.

III. Cutting Prescription Short

Cutting prescription short

• Where land is registered in the Land Register, an a non domino disposition (i.e. a disposition granted by a

non-owner) will give ownership in the following circumstances (Land Registration etc (S) Act 2012, s. 86):
– possession for at least one continuous year, openly, peaceably and without judicial interruption
– Keeper unaware of any inaccuracy during that period
– acquirer in good faith
– disposition otherwise valid
– no caveat under s.67 or statement under s.30(5)
• Where the year's possession is not complete by the date of registration, ownership is acquired when it is

complete (s.86(4)(b), (6))

• This does not apply where the property is in the Register of Sasines

Compensation
• Any person losing ownership as a result of s. 86 is entitled to be compensated by the Keeper (2012 Act,

s.94)
• Note that someone losing ownership as a result of positive prescription is not entitled to be compensated

Some questions on s.86

• Annie is registered in the Land Register as owner of an area of land, but she is not in fact owner. Her title

is in fact a non domino. A little over a year after her registration, she sells to Bert, who in turn registers.
Bert is in good faith.
– Does Bert become owner?
– Was Annie ever owner?
– What if the sale to Bert had happened only six months after Annie’s registration?
• Annie has a recorded title in the Register of Sasines, but is not owner. Her title is in fact a non domino. She

sells the property to Bert, who is unaware of the defect in her title. Does Bert become owner if this sale
happens (a) 10 years or (b) 1 year after the recording of Annie’s title?
• Annie has a registered title in the Land Register, but is not owner. Her title is in fact a non domino. She

sells the property to Bert, who is unaware of the defect in her title. Does Bert become owner if this sale
happens (a) 10 years or (b) 1 year after the registration of Annie’s title?

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