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 Previous provisions have been replaced by sections 1 – 5 of the Prescription and Limitation (Scotland) act 1973.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.

  1. Section 1, as amended by the Land Registration (scot) act 1979, s10 enacts: Interests in land, not servitudes. If the land has been possessed by following the requirements in s1 of the act it will constitute in favour of a person and give a real right in land of a description habile to include that land and an exclusion subject of indemnity.[7] It takes 10 years to fortify a defective title which is habile and been registered. Section 3 deals with positive servitudes on written constitution, actual possession of land and public rights of way.[8] It takes 20 years to create or fortify a positive servitude.

 

  1. In Scotland trespass is not a crime per say however it is illegal in some circumstances. Certain legislation has been put into place for these occasions such as; the Trespass (scot) act which originally made it punishable to passage through someone else’s land without their consent unless they were exercising their rights under the Land Reform (scot) Act 2003 which created universal access rights to most land and inland water.[9] The Game (scot) act 1832 and the Night Poaching act 1982 which was put into place to prevent illegal hunting and killing of wild animals.[10]

 

  1. There is a civil remedy which can be used however it is very difficult to obtain. It is an interdict. The courts will not allow this if the trespass is trivial. A lot of evidence will have to be shown to the courts so as an alternative, the landowner may seek to speak to the trespasser directly which is known as “self-help”. Under the Occupiers Liability (scot) Act 1960 occupiers have a duty to care to trespassers so are limited on what they can do. Force can be used however kept to a minimum.[11]

 

  1. Pursuer must prove his right has been infringed and the infringe is unlawful. The infringe must be timeous, not too late after the event. It must be real and not hypothetical.

 

  1. An Interim order is a temporary order given by the court until the court enters a final decree or order. Until that has been established, the interim order will continue to be binding to all parties involved. It can be used in many cases ranging from contract disputes to the more commonly known area, family law proceedings[12]

[1] Brand,D., Law Baics Property, Edinburgh, W.Green, 2009, p30

[2] Walker,D., Prescription and Limitations of Actions, Edinburgh, W.Green, 2002, p13

[3] Brand,D., Law Baics Property, Edinburgh, W.Green, 2009, p31

[4]   Brand,D., Law Baics Property, Edinburgh, W.Green, 2009, p31

[5] Steven,A. Wortley, S., Scots Property, Trusts and Succession Law,Edinburgh, Avizandum publishing, 2012,p79

[6]   Brand,D., Law Baics Property, Edinburgh, W.Green, 2009, p31

[7]   Walker,D., Prescription and Limitations of Actions, Edinburgh, W.Green, 2002, p38

[8]   Walker,D., Prescription and Limitations of Actions, Edinburgh, W.Green, 2002, p45

[9] My Lawyer.2014.Tresspasing.(online).Available from: http://www.mylawyer.co.uk/trespassing-a-A76076D34460/. (Accessed: 03/11/2014)

[10] Gretton,G.Steven,A. Property,Trusts and Succession. West Sussex.Tottel Punlishing.2009.p254

[11]   Gretton, G.Steven,A. Property,Trusts and Succession. West Sussex,Tottel Punlishing.2009.p254

[12] WiseGeek.2014.Interim Interdict.(online) Available from: http://www.wisegeek.com/what-is-an-interim-order.htm (Accessed 3/11/2014)