Prescriptive claimants

Introduction

The Land Registration etc. (Scotland) Act 2012 ("the Act") provides a statutory framework for the registration of dispositions a non domino. A disposition by someone not the owner is, by definition, invalid but the Act works by deeming it to be valid where the Keeper is satisfied that certain steps have been taken. A prescriptive claimant is the term used for a person entered in a title sheet as holder of a right, which is marked on the title sheet as "provisional" (discussed further below). The prescriptive claimant provisions are contained in sections 43 to 45 of the Act.

The purpose of a disposition a non domino is to found prescription, and the general law of prescription will continue to operate in the usual way, running on the deed. If the land in question is possessed openly, peaceably and without judicial interruption for the prescriptive period following the registration of such a deed this will result in a title that is beyond challenge.

One year of possession

Section 43(3) sets out the first evidential step. The applicant must satisfy the Keeper that the land to which the application relates has been possessed openly, peaceably and without judicial interruption by either: (a) the disponer or applicant for a continuous period of one year immediately preceding the date of application, or (b) first by the disponer and then by the applicant for periods which together constitute such a period.

It is important to note that the year of possession required under section 43(3) does not count towards the prescriptive period. Rather, it is a requirement that must be met in order for the Keeper to accept the application. Only possession following the registration of the disposition a non domino is relevant for prescription to operate in terms of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"). It is however possible for a period of prescriptive possession to be already running when the prescriptive claimant application is received. This is where the prescriptive claimant disposition itself stems from an earlier disposition a non domino.

Evidence

In terms of the evidence required to establish that there has been sufficient possession under section 43(3), the Keeper will expect, at least, affidavit evidence confirming possession by the disponer or applicant. In terms of regulation 9 of the land register rules any affidavit accompanying an application for registration must be made before a notary public.

It is likely that in many cases affidavit evidence from neighbouring proprietors will also be required, and in certain cases this would include all bounding neighbours. The wording of affidavits must be clear as to the nature and extent of possession, as well as to the area possessed. Therefore, in the majority of cases a plan of the area should be attached to the affidavit. A plan may not be necessary in the rare cases where the prescriptive claimant application relates to the whole of a registered plot. Applicants are advised that any plan provided should be in accordance with the RoS published deed plan criteria, as the plan may be used for other documentation also, for example, annexed to the disposition a non domino.

Additional forms of evidence may also be required depending on the circumstances of the case. For instance, in order to better demonstrate the nature and extent of possession the Keeper may require photographic evidence showing the age and nature of boundaries or the use of the land in question. Evidence from local authority records or utility providers may also be useful in certain circumstances.

It must be clear from the evidence submitted that possession was at a level attributable to ownership and not, for instance, servitude use.

The key information that an affidavit should contain is as follows:

• A sworn statement by the relevant party that the land has been possessed openly, peaceably and without judicial interruption;
• The duration of the applicant's and/or disponer's possession. Where possession extends back further than the required one year period, and an accurate duration cannot be given, an approximate start date may be acceptable provided the required one year period is covered;
• Details of the type of land it is, e.g. garden ground, parking place, grazing land, overgrown space, etc;
• A detailed statement as to the specific nature of the possession, i.e. not a bald statement. For instance, that the land has been used as garden ground for a house, and that a shed has been constructed on it;
• A plan that clearly identifies the extent of the land possessed, unless relating to the whole of a registered title;
• Confirmation of who has access to the land, who uses the land, and who maintains the land;
• Confirmation of the apparent age and nature of the boundary features surrounding the ground, e.g. stone walls, wire fencing etc, and details of any maintenance provisions in place for these boundaries.

Notification by the applicant

Section 43(4) sets out the second evidential step. The applicant must satisfy the Keeper that they have taken steps to identify the true owners of the land in question and have attempted to contact them. This should ensure that purely speculative applications are not accepted, and may instead result in the parties entering into an appropriate conveyancing transaction.

Find the notification by a prescriptive claimant form on the Registers of Scotland website.

In terms of section 43(4) the applicant must satisfy the Keeper that the following parties have been notified of the application: (a) the proprietor, (b) if there is no proprietor (or none can be identified) any person who appears to be able to take steps to complete title as proprietor, or (c) if there is no such person (or in either case none can be identified) the Crown.

These provisions recognise the Crown as the ultimate heir in Scots Law. The Crown is represented by the Crown Estate Scotland ("the CES") in respect of property falling within the regalia minora (foreshore, seabed, salmon fishings, etc) and the King's and Lord Treasurer's Remembrancer ("the KLTR") for bona vacantia and ultimus haeres cases.

Further guidance on the conveyancing procedures for bona vacantia and ultimus haeres cases can be found on the King's and Lord Treasurer's Remembrancer Officer website.

If you have any questions about the work of the KLTR, you can contact them at:

King's and Lord Treasurer's Remembrancer Office
Scottish Government Building
1F North Victoria Quay
Victoria Quay
Edinburgh
EH6 6QQ

In order to demonstrate that the requisite notification has taken place under section 43(4) the applicant must satisfy the Keeper: (1) that the correct person has been identified, or that all reasonable steps have been taken to identify the correct person, and (2) that the notification has actually been carried out and that it is sufficient in its terms.

The evidence required to demonstrate that the correct person has been identified will vary depending on the circumstances of the case and under which paragraph of section 43(4) the applicant is notifying.

Notification by the Keeper

Section 45 also sets out that the Keeper must make her own notification when a prescriptive claimant application is received. This notification is essentially an anti-fraud measure and must also be made to either the proprietor, whom failing any person who appears able to complete title, whom failing the Crown.

It is only where the Keeper is satisfied that the correct person has been notified by the applicant that the Keeper will make her own notification. For this reason the Keeper will only re-notify those individuals already notified by the applicant. If the Keeper thinks that a different person should have been notified then the applicant has failed to satisfy the first evidential step under section 43(4), and the application should be rejected or further evidence requested.

In terms of section 45(2) the Keeper's duty to notify only applies in so far as she considers it reasonably practicable to do so. However, the Keeper will notify in nearly all cases since the owner's formal objection is tied to this notification.

In terms of section 45(4) a person who is notified by the Keeper may object in writing to the prescriptive claimant application being accepted. If such an objection is received within 60 days of the Keeper's notification, the Keeper must reject the application. Provided the objection is from a person previously notified the Keeper is not required to assess the basis of the objection. Also, because the person objecting has been identified as the appropriate person to notify in terms of section 43(4), that person is not required to give any reason for their objection.

Under section 45(3) notification is to be by such means as the Keeper considers appropriate. It is unlikely that notification under this section will be by email, since in most cases only a postal address will be available. The Keeper will rely on the address used by the applicant for their notification, and will notify by post to that address. Since the Keeper does not require evidence of her own notification, the Keeper's notification need not be by recorded delivery.

The one-shot rule

In general terms the one-shot rule requires applicants to get their applications for registration right first time. Therefore the circumstances in which it will be competent to make a requisition will be limited.

View separate guidance on the one-shot rule.

However, given the nature of prescriptive claimant applications, and the range of evidence that must accompany them, a strict one-shot rule is not appropriate. The application must still comply with the general application conditions and conditions of registration however in certain circumstances the applicant may be allowed to supplement their application with evidence additional to that submitted under section 43.

The following provisos should be noted:

• Where a request for further evidence is deemed appropriate, the Keeper will consent to an application being supplemented on one occasion, i.e. protracted correspondence will be avoided.
• Consent will only be given where the applicant and the Keeper have carried out a significant amount of work. For example, where the applicant has done a significant amount of work trying to identify, trace and notify a proprietor, but the evidence as to possession was only 95% acceptable, the Keeper may decide to allow a further 5% to be added.
• Certain shortfalls cannot be remedied by allowing the application to be supplemented. For example, where the applicant has carried out their notification but has neglected to submit evidence of it, the Keeper may allow this to be sent in as supplementary evidence. However, where the applicant has simply failed to carry out the necessary notification this is not something that can be remedied at a later stage.

The provisional marking

Where the Keeper accepts a prescriptive claimant application she must mark any resulting entry in the title sheet as "provisional" in terms of section 44(1). While an entry is provisional it does not affect the rights held by any person in the land to which the entry relates. The rights the prescriptive claimant would acquire are therefore provisional until such time as the prescriptive period has run to validate them, always provided there is also sufficient possession to meet the terms of the 1973 Act. In terms of section 44(1) the Keeper must mark any resulting entry as provisional upon accepting a prescriptive claimant application, and this would include any deed granted by or against a prescriptive claimant, for example, a standard security.

Section 44(2) provides that the Keeper is to remove the provisional marking once prescription has operated to make the real right in question exempt from challenge in terms of section 1 of the 1973 Act. At that point the prescriptive claimant becomes the owner in law of the land in question. Since this will not be evident to the Keeper from the face of the register, the prescriptive claimant should notify this to the Keeper and submit the appropriate evidence for the 10 year period. The standard of evidence required will broadly follow the existing policy for the removal of an exclusion of indemnity, and should be similar to the evidence previously noted in relation to the one year period of possession under section 43(3).

Completing registration

When a prescriptive claimant application is accepted, and while the entry is provisional, this does not affect any rights over the land held by any other person. Accordingly where a prescriptive claimant application is accepted over registered subjects, that entry will be marked "provisional" and the existing proprietorship information will be retained.

Where the prescriptive claimant application is accepted as a first registration the Keeper will disclose the last known proprietor in the proprietorship section of the resultant title sheet. This ensures consistency with the approach to be taken with registered titles.

Since the prescriptive claimant is not yet the legal owner, and if the legal owner is known, this information should be included in the title sheet. The register should disclose the current ownership information.

Where the prescriptive claimant application is accepted over part of a registered title the Keeper will reflect this on the larger title. The larger title will not be divided and no separate title sheet will be created at that time; this will only happen once prescription has operated and the provisional marking has been removed.

For the avoidance of doubt in terms of section 73(5) where an application is accepted by virtue of section 43 the Keeper does not warrant that the resultant title sheet is accurate, since until positive prescription has operated it is not. Where the entry in the title sheet ceases to be provisional through the successful operation of prescription, the Keeper may then grant warranty as she considers appropriate under section 75(4).

Disposition a non domino discovered after application submitted

There may be circumstances where a disposition is submitted as a regular application but it transpires, during the course of registration, that the deed is in fact partly a non domino. In such cases the Keeper must reject the application. There are a number of reasons for this:

1. The applicant has not met the requirements of section 43, therefore the Keeper cannot treat the the deed as valid for the purposes of acceptance.
2. Were the Keeper to accept the deed, but only give effect to the valid part, this could circumvent the prescriptive claimant provisions. This is because prescription could possibly run on the deed in the archive record.
3. There is no scope for allowing the applicant to supplement the application at this stage in order to comply with section 43. Although it may be possible for the applicant to provide the evidence of possession required under section 43(3), they could not, at that time, meet the notification requirements. Regulation 18(1)(a) of the Rules requires notification by the prescriptive claimant to be made to the appropriate person at least 60 days prior to the application.

Transaction stemming from a previously recorded disposition a non domino

The Keeper may receive an application to register a property where title stems from a disposition a non domino already recorded in the sasine register. If prescription has operated to put the title of the current owners beyond challenge a disposition granted by them will be valid for the purposes of acceptance, and can be registered in the usual way. If the prescriptive period is still running, the transfer from the sasine register to the land register does not interrupt the running of prescription, and the period of possession of the granter can be combined with the period of possession of the grantee when considering removal of the provisional marking at a later date.

However, the disposition granted by the current proprietor in these circumstances is still a non domino, and if submitted for registration would still be subject to the prescriptive claimant provisions as if it were a first time disposition a non domino, including the notification requirements at section 43(4). Although the Keeper is aware of the implications of the notification requirements on obligations contained in existing title insurance policies, the provisions cannot simply be disapplied.

In order to avoid these difficulties the current a non domino owner could submit an application for voluntary registration of the unregistered plot of land under section 27(1), prior to submitting the intended disposition. In these circumstances, the Keeper will create a title sheet, and will mark the entry relating to the current a non domino owner's title as provisional. Where known, the Keeper will also disclose in the proprietorship section of the resultant title sheet details of the last recorded proprietor of the land, thereby ensuring consistency with the approach to be taken for prescriptive claimant applications over both registered and unregistered titles. This will allow the subsequent disposition to be submitted for registration under section 26, as a deed relating to a registered plot. The existing title sheet would then be updated and the current applicant's resultant entry would also be marked provisional by virtue of section 81(3)(a)(i).

Where submitting an application for voluntary registration to register a property where the title of the applicant is not yet valid as a result of positive prescription, this should be disclosed to the Keeper in the additional information section of the application form. Details of the proprietor should also be included, where known. Any information provided on any preceding title will be used for the purpose of compiling the title sheet.

Application form

A prescriptive claimant application should be submitted using a normal Application for Registration form. Prescriptive claimant applications are applications for registration made under section 21 like any other, albeit the applicant must satisfy the Keeper that the additional requirements set out in sections 43 to 45 have been met.

The application form asks (for applications relating to unregistered land only):

"Does the application relate to a prescriptive claimant?"

And:

"If yes, have the conditions of section 43 (prescriptive claimants) been met?"

The applicant should then answer "yes" to both of these questions and this will indicate to the Keeper that this is a prescriptive claimant application and that the relevant procedures have been complied with.

Where the application relates to the whole or part of an existing registered title, information regarding prescriptive claimants should be provided in the "Further/Additional Information" sections of the form.

The Application for Registration form contains an optional inventory sheet. Since by their nature prescriptive claimant applications will be accompanied by a range of documents and evidence, applicants are encouraged to list the items being submitted on the inventory page. The Keeper also expects the "additional information" section of the form to contain:

• clear information as to who has been notified under section 43(4);
• a clear statement that copies of all correspondence generated by the notification are enclosed; and
• a clear statement as to what items in the inventory are included in support of the notification and what items in respect of the one year period of possession.
• Evidence that the land has been possessed openly, peaceably and without judicial interruption for a one year period immediately preceding the date of application;
• Evidence that the proprietor cannot be identified or, where identified, cannot be traced;
• Evidence that a person who could take steps to complete title cannot be identified or traced;
• Evidence that notification has been made to the appropriate person, based on the searches above;
• Evidence that notification was sent by recorded delivery post or equivalent;
• Evidence that notification was sent at least 60 days prior to application;
• Ensure the questions on the application form under "Title Information" are answered appropriately.

Checklist to consider in preparation of prescriptive claimant application

• Evidence that the land has been possessed openly, peaceably and without judicial interruption for a one year period immediately preceding the date of application;
• Evidence that the proprietor cannot be identified or, where identified, cannot be traced;
• Evidence that a person who could take steps to complete title cannot be identified or traced;
• Evidence that notification has been made to the appropriate person, based on the searches above;
• Evidence that notification was sent by recorded delivery post or equivalent;
• Evidence that notification was sent at least 60 days prior to application;