Prescription (Scots law)

The real right of ownership in Scots law can be created as an original mode of acquisition of corporeal heritable property (ie: it is not derivative acquisition, where ownership is acquired from another upon a voluntary or involuntary transfer). Positive prescription of ownership arises where land has been possessed openly, peaceably and without any judicial interruption for ten years and possession followed the registration/recording of a ex facie valid deed in the Land Register/General Register of Sasines.[10] The registration process that commences the running of the positive prescriptive period is known as a prescriptive claim under the Land Registration (Scotland) Act 2012.[11]

Servitudes, similar to easements in other jurisdictions, are capable of creation by positive prescription.[12] The requirements are:

• The rights under the prescriptive positive servitude has been exercised openly, peaceably and without judicial interruption for a period of twenty years.[13]
• The exercise of the rights are founded upon an a non domino deed which terms are sufficient to create a servitude of the nature of the prescriptive servitude.[14]

After the 20 year prescriptive period concludes, the existence of the servitude is beyond legal challenge.[15] However, while the servitude may validly exist under Scots law,still may not be appear on the Land Register, as acquisition by prescription is one of the main exemptions from the requirements of registration of real rights.

Public rights of way are capable of creation by prescription under the 1973 Act. The requirements are:

• The right of way has been exercised openly, peaceably and without judicial interruption for a period of twenty years.[16]

After the 20 year prescriptive period concludes, the existence of the public right of way is beyond legal challenge.[17] Similarly to prescriptive servitudes, a public right of way may not be denoted in the Land Register but still validly exist. ScotWays, the Scottish Rights of Way Access Society, maintains a public register of rights of way, the National Catalogue of Rights of Way, in order to raise awareness of the existence of public rights of way in Scotland.[18]

Short prescription occurs where rights and obligations have a prescriptive period of 5 years.[22] The 1973 Act provides that monetary obligations (ie: the legal obligation to pay a sum of money to another under contract, delict or unjustified enrichment) are subject to a 5 year-prescriptive period.[23] This includes:[24]

• any obligation to pay a sum of money due in respect of interest;
• any obligation to pay a sum of money due in respect of an instalment of an annuity;
• any obligation to pay a sum of money due in respect of by of ground annual or other periodical payment under a contract of ground annual;
• any obligation to pay a sum of money due in respect of rent or other periodical payment under a lease;
• any obligation to pay a sum of money due in respect of a periodical payment in respect of the occupancy or use of land;
• any obligation to pay a sum of money due in respect of a periodical payment under a land obligation;
• any obligation to pay a sum of money due in respect of redress of unjustified enrichment, including without prejudice to that generality any obligation of restitution, repetition or recompense;
• any obligation to pay a sum of money arising from an individual acting as negotiorurn gestio, a form of agency in Scots law.
• any obligation to pay a sum of money due in respect of liability (whether arising from any enactment or from any rule of law) to make reparation ;
• any obligation to pay a sum of money due under a bill of exchange or a promissory note;
• any obligation to pay a sum of money due in respect of an obligation to account, other than accounting for trust funds ;
• any obligation to pay a sum of money due in respect of any obligation arising from, or by reason of any breach of, a contract or promise, not being any obligation already falling within the five-year period.

Therefore, if any of the above obligations fail to be enforced within 5 years of its existence, the obligation prescribes and it becomes unenforceable.[25] However, the prescriptive period 'clock' does not take into account any period in which the debtor of the obligation (ie: the person obliged to make payment) has acted fraudulently, or his words or conduct induces the creditor to make an error, to prevent enforcement.[26] However, while most monetary obligations are covered by the five year prescriptive period, the following obligations are specifically exempt from the 5-year prescriptive period:[27]

• any obligation arising from a decree of court, an arbitration award or an order of a tribunal or authority exercising jurisdiction under any enactment;
• any obligation arising from the issue of a bank note;
• any obligation constituted or evidenced by a probative writ, not being a cautionary obligation nor being an obligation relating to interest.
• to any obligation under a contract of partnership or of agency, not being an obligation remaining, or becoming, prestable on or after the termination of the relationship between the parties under the contract;
• except for obligation involving negotorium gestio, any obligation relating to land (including an obligation to recognise a servitude);
• to any obligation arising out of succession law and inheritance rights under the Succession (Scotland) Act 1964.
• any obligation to make reparation in respect of personal injuries or in respect of the death of any person as a result of such injuries

Any obligation, including those covered or exempted by short-prescription, will prescribe after 20 years, by the passage of the long prescriptive period.[28] This includes real rights which have not been exercised for over 20 years bar those immprescriptible.[29] The passage of 20 years is considered the long-stop date for all obligations and real rights bar those specified as imprescriptible or relating to personal injury.[30][31]

Certain rights and obligations do not prescribe, either by short or long negative prescription:[32]

• the real right of ownership of corporeal heritable property (land). As this only relates to land, loss of ownership of moveable property is still possible.[33] However, while an owner of land's right cannot be extinguished by negative prescription, it can still be extinguished by operation of positive prescription by a possessor (see above).
• the real right of lease, this is only created by leases registered in the Land Register under the Registration of Leases (Scotland) Act 1857.
• any right exercisable as res merae facultatis. Despite being a long used phrase in Scots law, the definition of rights res merea facultatis (in Latin, lit: 'through a glass darkly') is uncertain.[34] It is considered that these are property rights associated with ownership held over corporeal heritable property, either held in the owner's land itself or another neighbouring property, which cannot prescribe. The exact species of rights falling as res merae facultatits is subject to academic debate and conflicting decisions by the Scottish courts.[35]
• any right to recover property extra commercium. These are described by Lord Polwarth, the then Minister of State for Scotland, as:

" property extra commercium comprises various categories of things which cannot be reduced into private ownership, either because of their nature, or because of some relevant rule of law. Particular examples are court records or other public documents which are held by whoever may have custody of them for the benefit of the community at large and not for the individual possessor. Where such articles are found in the possession of someone other than the proper custodian, it has been held that the latter's right to recover them does not prescribe: the right of recovery persists, however long may be the period of time during which they have been outside the legal custodian's control."[36]

• Obligation of a trustee to produce accounts of the trustee's dealings with any property of the trust;
• Obligations of a trustee to make reparation or restitution in respect of any fraudulent breach of trust;
• Obligation to provide property to any person entitled to it under a trust, or the proceeds of any such property, in the possession of the trustee, or the value of any such property previously taken the trustee and appropriated to his own use ;
• any obligation of a third party to make furthcoming to any person entitled to any trust property received by the third party otherwise than in good faith and in his possession ;
• any right to recover stolen property from the person by whom it was stolen or from any person privy to the stealing thereof;
• any right to an estate as heir to an ancestor who died before the commencement of the Succession (Scotland) Act 1964;
• any right to take any steps necessary for making up or completing title to any interest in land.