Prescriptive Possession

Have you possessed land for which you have registered a deed “openly, peacefully and without judicial interruption”? If yes, you may have obtained good title to it.

The law, or prescription, operating for sasine titles has remained unchanged since the introduction of the Prescription and Limitations (Scotland) Act 1973 in that where a title includes a description of land “habile” to include it is possible to gain rights over that land over a passage of time. This principle is referred to as prescription.

However, the Land Registration etc. (Scotland) Act 2012 amended the Prescription and Limitation (Scotland) Act 1973 so that all titles, whether recorded in the sasine register or registered (Land Register), become unchallengeable if followed by 10 (or in some cases 20) years’ prescriptive possession.

Possession in all instances must be open, peaceable and without judicial interruption. This may be evidenced by the party seeking to exercise the right fencing off the area in question, maintaining same using it regularly. The Possession requirement applies whether or not the Keeper excluded her warranty/indemnity.

Prescription can only apply where the registration of title is founded on a deed. Prescription runs on the deed and not on the title sheet. This means that voluntary registration, automatic plot registration, and Keeper Induced Registration titles do not act as foundation for prescriptive possession, because in essence there is no deed to found upon.

The fact that prescription runs on the deed has another feature worth noting. If the Keeper registers a deed and does not give effect to the full property extent on the Land Register, for example, omitting reference to common parts, prescription can still run on those areas as long as the owner was aware of their ownership and therefore continued to possess same openly and peaceably for the necessary period.

Possession of common areas, of course, would only be possession to the extent of a pro indiviso owner, not full exclusive possession to the exclusion of other owners.

It is important to consider when purchasing land if you need confirmation of prescriptive possession to be narrated in the missives, or if the seller should be required to deliver affidavits (sworn statements) to evidence open and peaceable possession.

For more information or advice, please contact a member of our experienced team.

Prescriptive possession

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