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Land Registration etc. (Scotland) Act 2012

Prescriptive claimants etc.

Overview of sections 43 to 45: prescriptive claimants

117.Sections 43 to 45 provide for the process whereby a person can apply for title to land to be constituted by prescription. The process for this is for an application to be made for registration of what is known as an a non domino disposition in relation to the area of land. The sections provide for the process by which a “prescriptive claimant” can apply to the Keeper to obtain a provisional title in the Land Register. The 10-year prescriptive period provided for by section 1(1) of the Prescription and Limitation (Scotland) Act 1973 can begin to run. If the 10-year period elapses without interruption (for example, such interruption could be by virtue of a challenge from the true owner of the land), the Keeper is to remove the provisional marking from the relevant entry in the title sheet.

Section 43: Prescriptive claimants

118.Subsection (1) provides that for the purposes of becoming a prescriptive claimant, the disposition granted in favour of the prescriptive claimant can be treated as valid so that the conditions of registration in sections 23 and 26 can be met.

119.Subsection (2) clarifies that this section is applicable to a disposition that is not granted by the person with the title to the subjects being granted.

120.Subsection (3) provides the first limb of the requirements for a person to become a prescriptive claimant. The applicant must satisfy the Keeper that the land that is sought to be acquired has been possessed by the disponer or the prescriptive claimant for one year immediately preceding the date of application. The prescriptive claimant will require to submit relevant evidence to the Keeper to satisfy this requirement. Subsection (8) allows Scottish Ministers to substitute a different time period for that provided for in subsection (3).

121.Subsection (4) provides the second limb of the requirements. To make a valid application, the applicant must satisfy the Keeper that they have taken reasonable steps to trace the true owner of the land, or any party able to complete title as true owner, and that they have been notified. Where no-one appears to own the land, sub-paragraph (c) requires the applicant to notify the Crown, as it is the ultimate heir to land in Scotland. In addition, abandoned property and the assets of a dissolved juristic person may also fall to the Crown as a matter of law. Subsection (7) contains a power to make further provision in Land Register rules regarding notification to various parties. This will allow the Land Register rules to make further provision with regards to the detail of the notification, how it is to be done and the information it should contain.

122.Subsection (5) is relevant to a title that has been provisionally registered in favour of a prescriptive claimant. It clarifies that subsequent deeds granted by a prescriptive claimant (such as a standard security) or against a prescriptive claimant (such as a charging order) are to be treated as valid despite the fact the prescriptive claimant's title remains provisional. The entries relating to any such deeds are also to be marked provisional in terms of section 44(1).

123.Subsection (6) sets out that in subsection (5) a prescriptive claimant is (i) a person whose application has been accepted under section 42(1), (ii) a person whose title has been marked as provisional under section 81(3)(a)(i) as a consequence of the Keeper becoming aware of a manifest inaccuracy which cannot be rectified due to the possibility prescription is running to cure it and (iii) any person in right of person (i) or (ii).

Section 44: Provisional entries on title sheet

124.This section provides that while a person is a prescriptive claimant, entries relating to the rights they would acquire were the prescriptive period to run successfully are to be marked as provisional. Entries relating to deeds granted by or against a prescriptive claimant are to be similarly marked. This section deals with first registrations and deeds affecting registered plots.

125.Subsection (2) provides that when the requirements in section 1 of the Prescription and Limitation (Scotland) Act 1973 have been met, the person’s title is no longer provisional as they have become the owner in law of the land in question. Accordingly, the Keeper is to remove the provisional marking. This section should be read with the amendments made to the 1973 Act contained in paragraph 18 of schedule 5, in particular sub-paragraph (4).

126.Subsection (3) ensures that provisional markings on title sheets confer no real rights.

127.Where a prescriptive claimant’s name is entered on the proprietorship section of a title sheet and the Keeper knows who the underlying owner of the land is, the Keeper can, by virtue of section 10(2)(e), enter the underlying owner’s name as well as the prescriptive claimant’s.

Section 45: Notification of prescriptive applications

128.This section provides for further notification to the underlying true owner of property in advance of the acceptance of an application to become a prescriptive claimant. This extends the procedure in section 14 of the Land Registration (Scotland) Act 1979 that provided for the Keeper to notify the Crown Estate Commissioners of applications of foreshore subjects. Subsection (1) requires the underlying owner (who may be the Crown) to be notified by the Keeper. Such notification only requires to be done in the instance when there is not already a prescriptive claim to the title in question.

129.Subsection (2) provides that the duty on the Keeper in subsection (1) does not need to be carried out when it is not reasonably practicable to do so.

130.Subsections (4) and (5) ensure the underlying owner is given 60 days to veto an application for a person to become a prescriptive claimant over their land.

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Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

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