Prescription - Lecture notes 5-6 PDF

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This is the lecture notes for the Prescription topic in the Scottish Property Law module....

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Prescription- Scottish Property Law Distinction between negative and positive prescription • Remember from Private Law of Scotland 1 and 2 that prescription is the acquisition (positive) or loss (negative) of legal rights by the passage of time. • Prescription can also be summarised as “if you snooze, you loss” or the “law protects those who are watchful of their rights.” • Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”). • Prescription and human rights: J A Pye (Oxford) Ltd v UK (2006) 43 EHRR 3 (see paras 32.14-15). Negative Prescription as it relates to property law • Can ownership negatively prescribe? • For land, no: schedule 3 of the 1973 Act • Corporeal moveables? Right to claim ownership appears to prescribe after 20 years. • Subordinate real rights (eg a servitude) • Lost by 20 years non-use (ie 20 years without exercising your right of access). • But as you will see when you look at real burdens there is a 5 year period in the Title Conditions (Scotland) Act 2003 (this is coming up later in the module). • While ownership cannot negatively prescribe, it can be lost by positive prescription. • Gretton & Steven outline negative prescription at paras 6.3 to 6.6 Positive Prescription of ownership of land (s 1 of the 1973 Act) • Essential to the operation of the Register of Sasines (a register of deeds) • Prescriptive acquisition of ownership of land requires: • Possession that is open, peaceable and without judicial interruption for ten years, and • This possession must be “founded on” a recorded (Sasines) or registered (Land Registered) deed. • Effect of positive prescription? • If the title was void it becomes absolutely good. • If the title was voidable it becomes absolutely good (although negative prescription may fix the problem sooner) • If the title was absolutely good, there is no legal effect. Positive Prescription Examples

• Donald dispones to Jo in 2020. At this point, unknown to Jo, Donald lacked capacity. This means Jo’s title is void. Donald delays in clearing out and so Jo takes possession of the land in 2021. • Under positive prescription, when does Jo become the owner? • Mike dispones to Jared in 2018. The disposition is voidable. Jared took possession in 2018. When does Jared become owner? When does the title become absolutely good (applying positive prescription)? • Michelle disponed to Elizabeth in 2010 but unbeknown to both parties, Michelle was not the owner of the land and so Elizabeth obtained a void title. In 2015, Elizabeth disponed to Ruth. Under positive prescription, when does Ruth become owner?...