Property Law

  1. The purpose of negative prescription is to extinguish the right to claim after a certain period of time. There are two main periods known as the short and long negative prescription. If someone does not exercise their property right, the right is lost. For the short term it is 5 years under s6 of the Prescription and Limitation (Scotland) act 1973 and the long term is 20 years under s7 of the act. It douses an obligation.[1]

 

  1. Previous provisions have been replaced by sections 1 – 5 of the Prescription and Limitation (Scotland) act 1973. The purpose of positive prescription is to substantiate and confirm claims to the property after a set period of time. It can be used for two things; create new rights in land and also render the existing rights absolute.[2]

 

  1. For anyone who has a land certificate does not need to worry about their title being challenged. As, under the land register system in Scotland, prescription is not required. This is because title is guaranteed.[3] Prescription only applies here when it runs on titles where indemnity has been excluded under s 1 of the Prescription and Limitation (scot) act 1973. Prescription differs in the Register of Sasines as it doesn’t guarantee title. The register of Sasines does not register title, only deeds. . Positive prescription is required to ensure registration is done effectively and can assist to obtain an unchallengeable title[4]

 

  1. Under the Prescription and Limitation (Scotland) Act 1973 c52 s1 it states that;

“If land has been possessed by any person… for a continuous period of ten years openly, peaceably and without judicial interruption… the real right shall be exempt from challenge”[5]. Openly means the right has been acquired in an apparent way. Peaceably means there was no dispute over the possession. Without judicial interruption means the possession was not challenged by courts or similar actions.[6] Title is required and must be ex facie and not forged. Good faith is not required.

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