Prescription (Scots law)

Prescription in Scots law allows the creation or extinction of personal and real rights. There are two forms of prescription: (1) positive prescription, which creates certain real rights, and (2) negative prescription, which extinguishes both personal and real rights. Prescription is different from limitation, which prevents the raising of court proceedings or litigation in relation to civil law matters in Scottish courts, primarily affecting personal injury claims arising from delict as these are exempt from prescription. The terms prescription and limitation are used in other jurisdictions to describe similar rules, mainly due to shared Roman law and Civil law heritage.
The law of prescription, although a long-standing feature of Scots property law, has been the subject of modern reform, primarily following on from reports on the law by the Scottish Law Commission (SLC). The SLC's main reports on prescription, with some of the recommendations of these reports adopted and introduced into statute, are:
Despite these reforms, the primary source of law regulating prescription is still the Prescription and Limitation (Scotland) Act 1973. 1973 Act was last subject to major reform under the Prescription (Scotland) Act 2018, which followed on from the SLC's 2017 Report.
Positive Prescription.
Positive prescription allows the creation of real rights through the passage of time. It was first introduced into Scots law by the Prescription Acts of 1469 & 1474. However, it came into greater usage following the Prescription Act 1617, an Act of the Parliament of Scotland: "ACT XII Regarding prescription of heritable rights
Our sovereign lord, considering the great prejudice which his majesty's lieges sustain in their lands and heritages, not only by the abstracting, corrupting and concealing of their true evidents in their minority and less age and by the omission thereof, by the injury of time, through war, plague, fire or such occasions, but also by the counterfeiting and forging of false evidents and writs and concealing of the same to such a time that all means of improving thereof is taken away, whereby his majesty's lieges are constituted in a great uncertainty of their heritable rights and diverse pleas and actions are moved against them after expiring of 30 or 40 years, which nevertheless by the civil law and by the laws of all nations are declared void and ineffectual; and his majesty, according to his fatherly care which his majesty has to ease and remove the grievances of his subjects, being willing to cut off all occasions of pleas and to put them in certainty of their heritage in all time coming, therefore his majesty, with advice and consent of the estates of parliament, by the tenor of this present act, statutes, finds and declares that whatsoever his majesty's lieges, their predecessors and authors have possessed heretofore, or shall happen to possess in time coming by themselves, their tenants and others having their rights, their lands, baronies, annualrents and other heritage by virtue of their heritable infeftments made to them by his majesty, or others their superiors and authors for the space of 40 years, continuously and together following and ensuing the date of their said infeftments, and that peaceably without any lawful interruption made to them therein during the said space of 40 years, that such persons, their heirs and successors shall never be troubled, pursued nor deprived in the heritable right and property of their said lands and heritages foresaid by his majesty or others their superiors and authors, their heirs and successors, nor by any other person pretending right to the same by virtue of prior infeftments, public or private..."While the wording of the Act indicates that positive prescription was introduced to serve as a method of rectifying situations where the lieges (ie: the King of Scot's subjects) had lost important documents proving their ownership of held property, commentators such as Wightman argue that the introduction of positive prescription was actually a "means to legitimise the appropriation of land which had never been granted to the owner in the first place." and the 1617 Act allowed holders of land to become owner through the passage of 40 years possession. This primarily affected lands owned by the Church of Scotland and its officials, following the Reformation in Scotland.
Today, the usage of positive prescription is strictly limited in application to the following circumstances under the 1973 Act:
Positive Prescription of Right of Ownership.
The real right of ownership in Scots law can be created as an original mode of acquisition of corporeal heritable property (ie: it is not "derivative acquisition", where ownership is acquired from another upon a voluntary or involuntary transfer). Positive prescription of ownership arises where land has been possessed openly, peaceably and without any judicial interruption for ten years and possession followed the registration/recording of a "ex facie" valid deed in the Land Register/General Register of Sasines. The registration process that commences the running of the positive prescriptive period is known as a under the Land Registration (Scotland) Act 2012.
Positive Prescription of Servitudes.
Servitudes, similar to easements in other jurisdictions, are capable of creation by positive prescription. The requirements are:
After the 20 year prescriptive period concludes, the existence of the servitude is beyond legal challenge. However, while the servitude may validly exist under Scots law,still may not be appear on the Land Register, as acquisition by prescription is one of the main exemptions from the requirements of registration of real rights.
Positive Prescription of Public Rights of Way.
Public rights of way are capable of creation by prescription under the 1973 Act. The requirements are:
After the 20 year prescriptive period concludes, the existence of the public right of way is beyond legal challenge. Similarly to prescriptive servitudes, a public right of way may not be denoted in the Land Register but still validly exist. ScotWays, the Scottish Rights of Way Access Society, maintains a public register of rights of way, the National Catalogue of Rights of Way, in order to raise awareness of the existence of public rights of way in Scotland.
Negative Prescription.
Negative prescription allows for the extinction of obligations and rights (both real and personal). This is because Scots law adopts the Roman law principle that "vigilantibus non dormientibus jura subveniunt" (lit: the law assists those that are vigilant with their rights, and not those that sleep on them). The Scottish Law Commission discuss the important aspects of negative prescription: "Negative prescription plays an essential part in balancing individual interests on the one hand and serving the public interest on the other. Justice between the parties to litigation means that after a certain lapse of time it is actually fairer to deprive a pursuer of a right than to allow it to trouble a defender. That is connected with concerns about stale or missing evidence and the difficulties facing a court in trying to administer justice in those circumstances. There is another dimension too: there is more to prescription than justice between the parties to a particular case. There is a wider public interest in having litigation initiated promptly if it is to be initiated at all. That is conducive to legal certainty. Even if in an individual case prescription may seem to involve hardship, as long as the law of prescription strikes a fair balance overall, it serves the wider interests of fairness, justice and certainty.
It is for the legislature to decide what the appropriate time-limits should be, and what should be the exceptions or qualifications to them. A well moderated law of prescription will serve the public interest by promoting legal certainty and the efficient use of resources. In this way it can make a valuable contribution to a strong sustainable economy"
Short Negative, or "quinquennial", Prescription.
Short prescription occurs where rights and obligations have a prescriptive period of 5 years. The 1973 Act provides that monetary obligations (ie: the legal obligation to pay a sum of money to another under contract, delict or unjustified enrichment) are subject to a 5 year-prescriptive period. This includes:
Therefore, if any of the above obligations fail to be enforced within 5 years of its existence, the obligation "prescribes" and it becomes unenforceable. However, the prescriptive period 'clock' does not take into account any period in which the debtor of the obligation (ie: the person obliged to make payment) has acted fraudulently, or his words or conduct induces the creditor to make an error, to prevent enforcement. However, while most monetary obligations are covered by the five year prescriptive period, the following obligations are specifically exempt from the 5-year prescriptive period:
Long Negative Prescription.
Any obligation, including those covered or exempted by short-prescription, will prescribe after 20 years, by the passage of the "long" "prescriptive period." This includes real rights which have not been exercised for over 20 years bar those immprescriptible. The passage of 20 years is considered the long-stop date for all obligations and real rights bar those specified as "imprescriptible" or relating to personal injury"."
Imprescriptible Rights.
Certain rights and obligations do not prescribe, either by short or long negative prescription:
" property "extra commercium" comprises various categories of things which cannot be reduced into private ownership, either because of their nature, or because of some relevant rule of law. Particular examples are court records or other public documents which are held by whoever may have custody of them for the benefit of the community at large and not for the individual possessor. Where such articles are found in the possession of someone other than the proper custodian, it has been held that the latter's right to recover them does not prescribe: the right of recovery persists, however long may be the period of time during which they have been outside the legal custodian's control."