Head 10: Prescription

Question 1

What type of rights can be created by prescription?

Answer 1

Only a very limited category - they are ALL REAL RIGHTS

Question 2

Main provisions on negative prescription of obligations

Answer 2

s 6 and 7 (these relate to personal rights)

Question 3

s 15(2)

Answer 3

States that when an obligation prescribes, so does the correlative right..

Question 4

s 8

Answer 4

provides for prescription of real rights (since there is no obligation

Question 5

(Negative prescription of personal rights) Most rights prescribe after…

Answer 5

5 years (s 6 and schedule 1)

Question 6

(Negative prescription of personal rights) The remainder of rights prescribe after…

Answer 6

20 years (s 7)

Question 7

(Negative prescription of personal rights) For prescription to run, there must for the relevant period (5/20 years) have been neither:

Answer 7

1. A relevant claim by the creditor (s 9), nor

2. A relevant acknowledgement by the debtor (s 10)

Question 8

(Negative prescription of real rights) Real rights prescribe after…

Answer 8

20 years (s 8)

Question 9

(Negative prescription of real rights) For prescription to run during this period there must have been neither:

Answer 9

1. A relevant claim by the holder, nor

2. Exercise of the right by the holder.

Question 10

When does negative prescription start to run?

Answer 10

It begins to run at the point when the right first becomes enforceable (s 6(3), 7(1), 8(1)

Question 11

(Negative prescription) What type of rights are imprescriptable?

Answer 11

Listed in schedule 3 including:

Real rights of ownership in land.

Question 12

What happens to property which negatively prescribes?

Answer 12

It becomes ownerless and passes to the Crown.

Question 13

Positive prescription only applies to…

Answer 13

Real rights (it seems only in land, not moveables)

Question 14

Four possible instances of positive prescription

Answer 14

1. Registered real rights in land (other than servitudes and real burdens) (s 1)
2. Unregistered real rights in land (other than servitudes and real burdens) (s 2)
3. Servitudes and public rights of way (s 3)
4. Real rights in corporeal moveables (probably not covered)

Question 15

Two main requirements for positive prescription of registered real rights in land

Answer 15

1. Title on the Land Register

2. Possession for 10 years

Question 16

Key provision in respect of positive prescription of registered real rights in land?

Answer 16

s 1(1) 1973 Act (as prospectively amended by the LRA 2012 schedule 5 para 18(1))

Question 17

For positive prescription of real rights in land, in relation to sasine deeds only, the deed must…

Answer 17

Not be ex facie invalid.

Question 18

For positive prescription of real rights in land, in relation to sasine deeds, what makes a deed ex facie invalid?

Answer 18

The deed must be self destructive (ie Watson v Shields - recognising that it is insufficient).

Whereas in Landward Securities, the deed stated that they might have a right to the property - this was not self destructive.

Question 19

For positive prescription of real rights in land, if the registered deed is a forgery…

Answer 19

Then this excludes the operation of prescription s 1(2)

Question 20

For positive prescription of real rights in land, what are the 4 possession requirements?

Answer 20

1. Must possess for 10 years
2. Possession may be civil or natural
3. Possession may be by a person or his / her successors
4. Possession must be: open and peacable, founded on the foundation writ, and continuous.

Question 21

Houston v Barr

Answer 21

Someone was a tenant under a lease and were in possession of the property. They put a deed onto the Register to become owner. At the end of the prescriptive period they told the landlord they had become owner. Court rejected this because their possession was NOT FOUNDED ON THE FOUNDATION WRIT, rather it was based on the lease.

Question 22

What is an a non domino disposition?

Answer 22

One granted by a non-owner (not yourself)

Question 23

When are a non domino dispositions used?

Answer 23

Land grab cases

Question 24

Aberdeen College v Youngson

Answer 24

Held that an a non domino disposition in favour of yourself is not competent.

Question 25

The rules concerning the types of deeds the Register will accept are contained in...

Answer 25

ss 43-45 LRA 2012

Question 26

The Keeper can only accept a non domino dispositions if:

Answer 26

s 43(3)/(4): 1. The land has been possessed openly and peacably for a year by the granter and / or grantee, and 2. The grantee has notified the owner or the Crown s 45: The Keeper must separately notify the owner or the Crown and MUST refuse the application if an objection is made within 60 days

Question 27

If an a non domino disposition is accepted by the Keeper, how is this marked on the land register?

Answer 27

The entry is marked as "provisional" and remains this way unless or until prescription has run (s 44)

Question 28

4 effects of positive prescription of real rights in land:

Answer 28

1. Cures invalid (void) foundation writes 2. Cures voidable foundation writs 3. Provides conclusive proof of validity of foundation writ (most important use of prescription for the Sasine Register) 4. Resolves boundary disputes (only where the deeds themselves are sufficiently flexible)

Question 29

In year 1 A grants a disposition to B. B registers in the Land Register. In year 5 B grants a disposition C who registers. It is now year 11. What is C's position?

Answer 29

Anything which was wrong with the title more than 10 years ago has now been cured. So if the original disposition (A --> B) is void then this is cured. If the original disposition (A --> B) is voidable - then this voidability is now cured.

Question 30

Positive prescription of unregistered real rights

Answer 30

S 2 - very uncommon, KR never come across a case.

Question 31

S 14

Answer 31

Rules for calculating time

Question 32

S 13

Answer 32

You cannot contract out of prescription

Question 33

S 24

Answer 33

The Crown is bound by prescription, so you can prescribe rights against the Crown

Question 34

How can you determine who is owner of Sasine land?

Answer 34

Positive prescription is very useful - it means that you must find the first deed which is more than 10 years old, and as long as this is not ex facie invalid and there has been possession for the past 10 years, then this is the foundation writ and regardless of whether this deed was actually invalid, this has been cured by prescription.