Ownership by Possession: A Brief Summary on Prescriptive Claims

Thanks to sayings such as “possession is nine tenths of the law” it is perhaps not surprising that a lot of people might assume that occupation of land automatically confers rights of ownership. But is it really that simple?

Unsurprisingly, and perhaps fortunately, it isn’t so straightforward – such a scenario would arguably result in a stream of speculative and contested claims. A statutory framework exists to prevent this and to ensure that any land which is to be acquired in absence of title goes through a robust set of checks to identify a potential owner.

How is “ownerless property” transferred in Scotland?

Ownerless property is transferred through a deed called an a non domino disposition. This allows a party to grant a right to land without having the title to do so. It is not possible for this to be granted by the applicant in its own favour (unless acting under different capacities), and in most cases it must be transferred by another party.

Possession – how long is required?

Peaceful, continuous and uninterrupted ownership of the property for at least one year is required by either:

• The applicant; or
• Firstly, by the party granting a non domino disposition, and then by the applicant.

This can be evidenced through affidavits, photographic evidence or any supplementary documentation which can be attributed towards occupation. It should be noted however, that this initial year of possession isn’t factored into the prescriptive period required to acquire ownership.

Steps to identify an owner

The applicant must show that they have taken all reasonable measures to locate and contact the potential owner. There is a hierarchical structure which must be followed:

1. Notification to the proprietor

Attempts must be made to contact the owner of the land. If the property is registered, a title sheet will be available. If unregistered, then the applicant will need to show that they have tried to trace the owner (via property searches or copy deeds). If a proprietor is identifiable, whether they are still capable of ownership must be determined, as an individual could be deceased, or a company could be dissolved.

2. Notification to persons able to complete title

If the proprietor cannot be identified or traced, then supporting evidence showing this conclusion must be exhibited. In certain cases, it may still be possible for title to be “completed”. For example, the property may have transferred to a beneficiary under a will and confirmation from the estate could be used to acquire ownership.

3. Notification to the Crown

If all routes of enquiry are exhausted, then this again must be evidenced. In such a scenario, the Crown, represented by the King’s and Lord Treasurer’s Remembrancer, should be notified as the ultimus haeres (the ultimate heir) under Scots Law.

4. Notification by the Keeper

On receipt of an application, the Keeper of the Registers of Scotland is bound to make a notification as an anti-fraud measure. If satisfied that the correct party has been notified, the Keeper will re-notify those already contacted by the applicant. If the Keeper believes a different person should have been contacted, the application will be rejected.

Objections

If an objection to a claim is received within 60 days in response to an applicant’s notification it will be rejected.

The same also applies in relation to the Keeper’s notification.

Key information

An applicant must ensure certain information is provided when making their notification. This includes, but is not limited to:

1. Providing their contact details.
2. Sufficiently identifying the property in question.
3. Specify who they are notifying (be it the proprietor, person able to complete title, or the Crown).
4. Listing or providing any evidence as necessary.
5. Providing proof of service by way of recorded delivery to the last known address of the person or party identified.

10 years of possession

If an application is accepted without any objections, then the resulting title sheet will be marked as “provisional”. This is because ownership is conditional on possession being enjoyed openly, peacefully and without judicial interruption for 10 years.

Once this prescriptive period lapses, title to the property shall be exempt from challenge and the applicant will become the legal owner. Steps should then be taken to notify the Keeper and submit appropriate evidence to facilitate the removal of the provisional marking from the title sheet.

If you are looking to determine ownership rights, or have any other questions relating to rural land and property law, contact Paul Henderson for advice on your individual situation.

You may also be interested in the following articles:

• Securing the future: succession planning for business owners | Anderson Strathern
• Land Reform (Scotland) Bill: New provisions for large land holdings | Anderson Strathern
• LDT long continuations: avoid sleepwalking into a 10-year lease extension | Anderson Strathern

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