We're frequently asked to answer questions regarding the 2012 Act. Here's a list of the most popular questions that should give you a better understanding of the 2012 Act and what it means for you. If you have any questions that aren't answered here, click the link in the box to the right and we'll get back to you with a response.
Q1. What is a prescriptive claimant?
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. The prescriptive claimant provisions are contained at sections 43 - 45 of the 2012 Act.
Q2. What is the effect of a provisional marking?
A provisional marking is generally an indication that the right in question is one on which positive prescription may be running. While an entry is marked as provisional it does not affect any right held by any person in the land to which the entry relates
Q3. Are there different types of prescriptive claimant?
Yes, there are three types of prescriptive claimant:
- (a) The grantee in a disposition a non domino which has been accepted by the Keeper by virtue of meeting the criteria set out in sections 43 - 45 of the 2012 Act,
- (b) a person who was entered as a holder of a right without a provisional marking may subsequently become a prescriptive claimant on the entry being marked provisional. That would happen where the original entry is found to be a manifest inaccuracy, or is subject to an existing exclusion of indemnity as to title, but positive prescription appears to be running to cure the defect, and
- (c) any person in right of a person falling into (a) or (b) above. Such a person may include the grantee, should the original prescriptive claimant dispone the property, and the creditor, should the prescriptive claimant grant a standard security over the property.
Q4. How do the provisions on prescriptive claimants interact with the law of positive prescription?
The provisions on prescriptive claimants in sections 43 - 45 of the 2012 Act are a set of rules for when the Keeper must accept a disposition a non domino. The general law of prescription will continue to operate in the usual way, running on the relevant deed. The deed may be the prescriptive claimant disposition submitted for registration, or an earlier disposition a non domino on which a period of positive prescription is currently running. (See Q.16 for further details).
Q5: What evidence of possession must the applicant supply to the keeper?
Section 43(3) requires that the applicant (or the granter of the deed) has been in possession of the land to which the application relates (or the relevant part thereof) for a period of one year immediately preceding the date of the application. Such possession may be split between the applicant and the granter of the deed.
The standard of evidence required as to possession is likely to broadly follow current policy and new guidance will be produced in advance of the designated day. That will typically mean affidavit evidence from the applicant/granter and also, where appropriate, from neighbouring proprietors. Other forms of evidence (photographs etc.) may be appropriate in certain circumstances.
Q6. Does the one year possession requirement count towards the prescriptive period?
No. The requirement for one year's possession before registration is part of the special rules setting out when the Keeper must accept a disposition a non domino. Possession before registration of the disposition a non domino does not count towards the prescriptive period. Possession after registration will count towards the prescriptive period subject to the rules contained in the Prescription and Limitation (Scotland) Act 1973.
Where the prescriptive claimant application stems from an earlier disposition a non domino, a period of prescriptive possession could already be running, which would serve to satisfy the one year possession requirement. (See Q.16 for further details).
Q7. When is the provisional marking removed?
The provisional marking will be removed on the real right in question becoming exempt from challenge in terms of section 1 of the Prescription and Limitation (Scotland) Act 1973. The Keeper will not know, from the face of the register, whether or when the real right in question has become exempt from challenge. Accordingly evidence supporting that fact will need to be submitted to the Keeper. The standard of evidence required is likely to broadly follow current policy for the removal of an exclusion of indemnity for an a non domino title. New guidance will be produced in advance of the designated day. Typically the evidence required will be affidavit evidence from the prescriptive claimant and also, where appropriate, from neighbouring proprietors.
Q8. Can a prescriptive claimant sell or otherwise transact with the property?
Yes. Deeds granted by (such as a disposition, standard security or lease) or against (such as an adjudication) a prescriptive claimant are acceptable for registration. Any resulting entry in a title sheet will also be marked as provisional. .
Q9: Does a prescriptive claimant enjoy the benefit of warranty?
On registering a disposition a non domino the register will be inaccurate until positive prescription has operated. The Keeper is therefore unable to warrant the accuracy of the register. For that reason there is a statutory exclusion from warranty for such applications (s.73(5)).
Where a prescriptive claimant is of the type noted at Q3 paragraph (b) above then any warranty granted on the initial registration is unaffected by the subsequent provisional marking.
Q10. Who does the applicant have to notify?
Section 43(4) imposes a requirement to notify one of three parties. The proprietor (true owner), whom failing anyone who may be able to complete title, whom failing the Crown (the QLTR).
The applicant must decide which of those three parties has to be notified. That will involve matters of fact (where, for example, a proprietor simply can't be traced despite best efforts) and questions of underlying property law (e.g. the last proprietor was a company but is now dissolved). Guidance will be provided in this area but it will be for an applicant to determine which party must be notified.
Q11. What information is required to be included in the applicant's notification?
The intention is for a statutory form for notification to be provided. Further details on the content of this form will be provided in advance of the designated day.
Q12. When and how should this notification take place?
Notification should be sent by recorded delivery mail (or equivalent) to the last known address of the party identified. That notification should take place 60 days before the application is submitted to allow the party identified to check their title and take legal advice etc. Note: the applicant will have to submit evidence of this notification with their application.
Q13. Why does the applicant have to notify those listed in s.43(4)?
To ensure that the applicant has taken steps to identify the true owner and then to contact them. The expectation being, if that is done, it will be possible to negotiate a normal disposition. The notification to the Crown provides a backstop where no one else can be traced.
Q14. Why is the keeper required to notify parties already notified by the applicant?
This is an anti fraud measure. The expectation is that, following the applicant's notification, either a valid disposition will be negotiated or the party notified will indicate that they do not intend to object to the application. If the party notified indicates that they intend to object, then the application is unlikely to be submitted as it would inevitably be rejected following an objection received under section 45(5). Section 45(5) provides a route by which objections may be formalised in response to the Keeper's notification but, other than in cases of fraud, an unexpected objection is unlikely to be received by the Keeper.
Q15. What will the keeper do if she receives an objection?
The Keeper must reject the application if an objection is received within 60 days of the Keeper's notification. As long as the objection is from a person previously notified by the applicant/Keeper then the Keeper is not required to assess the basis of the objection. The person objecting is not required to give any reason for the objection on the basis that, if they have previously been notified, they must either be the proprietor or a person able to complete title (or the Crown).
The applicant can then approach the person objecting in an attempt to secure a disposition. Alternatively if the applicant considers that the notification was made in error (i.e. that the person notified is not, in fact, the proprietor or a person able to complete title) then a fresh application may be made.
Finally, it is possible that the Keeper may receive an objection from a person who has not been previously notified. Such an objection would not trigger automatic rejection. However, if the objection is from a person who should have been notified by the applicant (and the objector can demonstrate that fact) then the application will be cancelled on the basis that the applicant has not satisfied the Keeper that the correct person has been notified under s43(4).
Q16. I am transacting with a property in the Sasine Register where title stems from a disposition a non domino. What are the implications of the 2012 Act for first registration of the property?
If prescription has operated to put the title of the current proprietor beyond challenge then a disposition granted by them will be valid and can be registered in the usual way.
If the prescriptive period is still running then the disposition will still be a non domino and will be subject to the same prescriptive claimant provisions as a first time a non domino disposition. However, transfer from the Register of Sasines into the land register does not interrupt the running of prescription and so 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.
Since certain checks will have been carried out by the Keeper before accepting the a non domino disposition into the Sasine Register, the Keeper is considering further how subsequent dispositions will be treated at registration stage. The Keeper is mindful, in particular, of the implications of the notification requirements at section 43(4) on obligations contained in existing title insurance policies.
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