Prescriptive Claimants

Table of Contents

Table of Contents

1 General
2 What is Prescription?
3 What is a Prescriptive Claimant?
4 What is a Disposition A Non Domino?
- 4.1 The King's and Lord Treasurer's Remembrancer
- 4.2 Identification of an a non domino disposition
5 Disposition A Non Domino Discovered After Application Submitted
6 Overview of Prescriptive Claimant Process
- 6.1 Checklist for prescriptive claimant application
7 Completion of Application Form by Prescriptive Claimant
8 Evidential Requirements to be Met by Prescriptive Claimant
9 Evidence of Possession by the Prescriptive Claimant
10 Evidence of Notification by Prescriptive Claimant
11 Notification by the Keeper
- 11.1 Objections to application by prescriptive claimant
- 11.2 Objections received before application for registration
12 Completing Registration

Useful Links

Crown Estate Commissioners, Crown Estate Scotland (Interim Management) and Crown Estate Scotland

Rejection Policy and Procedures

Requirements of Registrable Deeds

Securities Section Information

Substitution or Amendment - Requisition Policy and Procedures

Warrandice

General

The prescriptive claimant provisions are contained in sections 43 to 45 of the 2012 Act.The Act provides a statutory framework for the registration of dispositions a non domino. 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 of ten years following the registration of such a deed this will result in a title that is beyond challenge.

A disposition a non domino is, by definition, invalid but the 2012 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 such a right, which is marked on the title sheet as “provisional”. Each of these aspects is discussed in further detail below. .

The guidance and procedures for prescriptive claimants or dispositions a non domino or partly a non domino should be adopted as soon as the prescriptive claimant or a non domino title is identified, irrespective of the stage of processing which the application has reached.

Following creation at Intake, all prescriptive claimant applications should be referred to a senior officer without delay. With the assistance of a plans officer, the senior caseworker will decide whether:

the relevant evidential and procedural requirements have been met and registration may proceed subject to a provisional marking;
further information is required; or
the application should be rejected. If there is any possibility that the application may require to rejected, this will be dealt with as soon as possible after the date of receipt.

If the senior caseworker is satisfied that the relevant procedural and evidential requirements have been met, the application may proceed to be registered - subject to a provisional marking in accordance with the User Guide relevant to the category of casework into which it falls - and subject to otherwise meeting the usual registration criteria.

Registration staff are reminded that, in terms of section 44(1) of the 2012 Act, upon accepting a prescriptive claimant application the Keeper must mark any resulting entry as provisional. This would include any deed granted by or against a prescriptive claimant, such as a standard security. Once entered on a title sheet, a provisional marking can only be removed with the authority of a legal senior caseworker. Following a decision to remove a provisional marking, care should therefore be taken to ensure that all relevant provisional markings are removed from the face of the title sheet.

What is Prescription?

In terms of Section 1(1) of the Prescription and Limitation (Scotland) Act 1973, if an interest in land to which the section applies is possessed openly, peaceably and without judicial interruption for a continuous period of 10 years after the date of recording or registration of a disposition a non domino, then the validity of the title is exempt from challenge.

There is an important exception to this general rule, namely that the deed upon which possession is founded must be ex facie valid. The question of whether a disposition by a person to themselves in the same status or capacity (Disposition by A to A) can be a valid foundation writ for the purposes of positive prescription was the subject of much academic debate.

Previously the Keeper accepted dispositions a non domino by A to A for recording in the Sasine Register and registration in the Land Register. However, following the decision in the case of The Board of Management of Aberdeen College v Stewart Watt Youngson and another [2005] CSOH 31, the Keeper ceased to accept dispositions by A to A for recording in the Sasine Register and will reject an application for registration in the Land Register where the deed inducing registration is a disposition a non domino by A to A in the same status or capacity.

In the case of The Board of Management of Aberdeen College v Stewart Watt Youngson and another [2005] CSOH 31, the Court decided that a disposition by a person in favour of themselves in exactly the same status or capacity (A to A) is invalid ex facie. The Court commented that a deed that purports to convey land from the granter to himself does not involve any transfer and that transfer of property is essential for an effective conveyance of land.

The result is that it is not possible to use section 1(1) of the Prescription and Limitation (Scotland) Act 1973 to establish a title that is exempt from challenge on the basis of a disposition recorded in the Sasine Register by a person in favour of himself. This is because section 1(2)(a) disapplies section 1(1) where the deed is invalid ex facie.

This means that a disposition a non domino by a party in favour of themselves (A to A, or A and B to A and B) in the same capacity should be discounted for the purposes of founding prescription. The practical effect of this is that prescription will only be considered to run on a subsequent conveyance to a third party (e.g. a Disposition by A to C).

See Lack of Prior Title - Existing exclusion of Indemnity

What is a Prescriptive Claimant?

In order for an application to be accepted for registration, the onus is on the applicant to satisfy the Keeper that the application meets (1) the general application conditions set out at section 22 of the Act and (2) the conditions of registration set out in section 23 (transfer of unregistered plot), section 25 (certain deeds relating to unregistered plots) or section 26 (deeds relating to registered plots), and for a plot of land those set out in section 28 (voluntary registration), as appropriate, and is applicable specifically to the deed or plot being registered.

The applicant must be satisfied on these points prior to submitting their application. In addition, the applicant is asked to certify on the application form that the application meets with the relevant conditions, and the Keeper will rely on this certification when registering the application.

The applicant must therefore certify that the deed being registered is valid, including that the granter has title and capacity to grant the deed. The Keeper will rely on this certification and will carry out no further investigation in this regard. This means the Keeper will not need sight of much of the supporting documentation that would previously have accompanied an application for registration. For example, rather than submitting links in title for examination, or producing the prescriptive progress of title, applicants will simply certify that there has been an examination of title and that the terms of section 43 of the Act have been met.

However, in some cases it will become apparent to the applicant that there is a lack of title which cannot otherwise be made good. It is for the parties to a transaction to consider what remedy to seek to address the lack of sufficiency of title. However, one possibility is the use of a disposition a non domino. In doing so, the applicant(s) will have to consider the terms of sections 43 to 45 of the Act which provide for the registration of a disposition a non domino.

The Act provides a statutory framework for the registration of dispositions a non domino. A disposition a non domino 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 such a right, which is marked on the title sheet as “provisional”.

Section 43(4) of the Act sets out a requirement for the applicant in a prescriptive claimant's application to 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.

In terms of section 43(4) the applicant must satisfy the Keeper that one of the following parties has been notified of the application:

a) the proprietor, whom failing

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, whom failing

c) if there is no such person (or if no such person 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 Commissioners (“the CEC”) in respect of property falling within the regalia minora (but see Crown Estate Commissioners, Crown Estate Scotland (Interim Management) and Crown Estate Scotland) and the KIng’s and Lord Treasurer’s Remembrancer (“the KLTR”) for bona vacantia and ultimus haeres cases.

What is a Disposition A Non Domino?

In every case, it is important that once the legal settler has identified a disposition a non domino it is referred to a senior caseworker who will consider the application and make the decision as to whether the application can proceed to be registered or whether it should be rejected.

A disposition a non domino is a disposition of property granted by a party who has no title to it.

The a non domino facility is a recognised and legitimate device for making good a lack of title which cannot otherwise be made good. For example, it may be used where property has been in the same family for generations and unrecorded links in title were either not created or have been lost. It may also be used where parties have been in occupation of land for a considerable period of time, but discover that it is not included in their titles and the true ownership cannot be established.

If previously recorded in the Sasine Register or registered in the Land Register (subject to a provisional marking or, previously, an exclusion of indemnity), the disposition a non domino is capable of becoming a foundation writ on which prescription can run.

Since the Act came into force on 8 December 2014, with the one exception described below, any newly granted disposition - in respect of either a registered or unregistered plot of ground - which is either wholly or partly a non domino will have to comply with the procedural and evidential requirements for a prescriptive claimant's application that are set out in sections 43(3) and 43(4) of the Act.

Subject to the exception below, the requirement to meet these procedural and evidential requirements will also apply to the first registration of dispositions a non domino that were previously recorded in the General Registers of Sasines on which prescription is still running.

Exception

The one exception to the procedural and evidential requirements that result in a newly created title sheet being provisionally marked is a voluntary registration proceeding on a previously recorded a non domino disposition on which prescription is still running. See the paragraph on Disposition a non domino and voluntary registration in the section on Dispositions A Non Domino Discovered After Application Submitted below for further guidance.

In those cases where the applicant considers that prescription has run on a disposition a non domino that was previously recorded in the Register of Sasines, they may present their application in the usual way without having to meet the procedural and evidential requirements that are set out in section 43 of the Act.

In these circumstances, the applicant will certify that the deed being registered is valid, including that the granter has title and capacity to grant the deed. The Keeper will rely on this certification and will carry out no further investigation in this regard.

It should be borne in mind, however, that an a non domino title inevitably competes with that of another party. It may be that there is a registered or recorded title in another party’s name. Alternatively, it may be that the property belongs to the Crown, either because it has never been the subject of a Crown grant or because it has fallen to the Crown as ultimus haeres or because it is bona vacantia of a dissolved company. The King’s and Lord Treasurer’s Remembrancer (often abbreviated to KLTR) is the official responsible for the Crown’s interest in property which has become ‘ownerless’.

The King's and Lord Treasurer's Remembrancer

The King's and Lord Treasurer's Remembrancer is responsible for administering, or, where appropriate, abandoning, the Crown's interest in an estate which has become "ownerless" either by way of being ultimus haeres or bona vacantia.

Property falls to the Crown as ultimus haeres upon intestacy where no heirs can be identified whereas the assets of dissolved companies, missing persons and lost or abandoned property fall to the Crown as bona vacantia. In the event that the KLTR chooses to transact with those subjects which vest in him either as ultimus haeres or bona vacantia he must proceed by virtue of a Deed of Gift, under Royal Warrant, by which terms he is appointed donee in trust of the estate. The purchaser's title is thus derived through the KLTR from the Crown.

Registration staff are reminded that there are no exceptions to the evidential requirements set out in the 2012 Act. These rules apply even where evidence is presented to the Keeper that the interested party, such as the KIng's and Lord Treasurer's Remembrancer, has clearly indicated that they have no interest in the area of land conveyed by the disposition a non domino. See the section on Evidential Requirements to be met by Prescriptive Claimant below for further guidance on this point.

Identification of an a non domino disposition

If the prescriptive claimant's question on the application form is answered 'yes' or there are indications of formal notification under section 43(4), then it is likely that the applicant is applying for registration of all or part of the plot of ground as a prescriptive claimant. It should be noted however that sometimes the applicant answers this question in error where there is no a non domino element to the deed. This may be because of a system issue with the dynamic web form.

If a disposition a non domino is presented as a prescriptive claimants' application for which the relevant question on the application form has been answered ‘yes’ and the relevant evidence has been provided, it should be referred to a senior caseworker to decide whether it satisfactorily complies with the procedural and evidential requirements of section 43(3) and 43(4) of the Act and can be accepted for registration - subject to meeting the usual registration criteria - or whether it requires to be rejected.

If the prescriptive claimants question is unanswered or answered 'no', the presumption is that the applicant is satisfied that the application does not contain an a non domino element. However, in some cases, registration staff may become aware of the possibility that a disposition is wholly or partly a non domino. This in turn will require consideration as to how the application is to be treated.

Other than a statement on the application form or in a covering letter or it becoming apparent that the subjects for which registration is sought fall outwith the legal title, an indicator that a deed may be possibly granted a non domino in whole or part is that the warrandice is expressly excluded or qualified.

In other cases, we may receive affidavits stating that part or all of the plot of ground for which registration is sought has been possessed openly, peaceably and without judicial interruption without any explanation as to why they have been provided. This may indicate that there is, or was, an a non domino element to the title. Such cases should be referred to a senior caseworker for consideration.

In some cases, however, the disposition may be only partly a non domino – i.e. it may also convey interests to which the granter has a good title. Unfortunately, no hard and fast rules can be given to enable settlers to identify a non domino dispositions. Any settler who is in doubt in an individual case should therefore refer the application to a senior caseworker for a decision as to whether the deed in question is a non domino.

How a disposition a non domino that is not presented for registration in terms of section 43 of the Act is to be treated is dependent on a number of factors, which are discussed in the next section.

Disposition A Non Domino Discovered After Application Submitted

Sections 43 to 45 of the Act set out the procedural and evidential requirements that must be considered where the applicant(s) has answered the prescriptive claimants question 'yes' and clearly intends to apply for registration of a disposition a non domino that is to be treated as valid by virtue of the relevant criteria in respect of one year's possession and formal notification to the relevant party having been met.

There are potentially three other scenarios in which registration officers will have to consider what action to take when it becomes apparent that there is an a non domino element to the application. Each of these scenarios and the appropriate course of action is examined in the following guidance.

Disposition inducing registration partly a non domino

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:

The applicant has not met the evidential and procedural requirements of section 43, therefore the Keeper cannot treat the the deed as valid for the purposes of acceptance.
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.
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.

Previously recorded disposition a non domino

The period of prescription has run on the prior a non domino title

The Keeper may receive an application to register a property where title stems from a disposition a non domino already recorded in the Register of Sasines. 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. For the avoidance of doubt, this means that it is not necessary for the applicant to meet the evidential and procedural requirements set out in section subsections (3) (one year's possession) and (4) (formal notification) of section 43 of the Act.

The period of prescription has not run on the prior a non domino title

If the prescriptive period is still running, the transfer from the Register of Sasines 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.

However, the mechanism of voluntary registration may offer an alternative approach for applicants to consider. See guidance on disposition a non domino and voluntary registration below.

Voluntary registration and disposition a non domino

In order to avoid the difficulties posed by the implications of the notification requirements at section 43(4) on obligations contained in existing title insurance policies, 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 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.

In these circumstances, the prior submission of an application for voluntary registration 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 as provisional by virtue of section 81(3)(a)(i).

Information to be included on Part B of the application form

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 a title sheet.

Overview of Prescriptive Claimant Process

There are three stages in the prescriptive claimant process set out in the 2012 Act:

Investigation and notification at least 60 days prior to the submission of the prescriptive claimant's application to the Keeper. This process is as follows:

Possession - gather and prepare evidence of possession of the property in the form of affidavits, photographs etc. by the disponer and/or applicant for one year immediately preceding the date of the application;

Ownership - gather evidence of research and title investigation to establish the identity of the true owner of the property in the form of search sheets, formal searches etc., carried out as a preliminary to submitting the application;

Notification by recorded delivery - in the form prescribed by the Land Register 2014 Rules etc. (Scotland) Regulations 2014 ("the 2014 Rules") to be sent to the proprietor; whom failing to any person who appears to be capable of completing title; whom failing to the Crown.

The Keeper considers the application and - only if satisfied that the Keeper's evidential requirements and usual registration criteria are met - issues notification. This stage offers limited scope for the registration officer to requisition supplementary evidence omitted from the application by the applicant, subject to the usual conditions of the 'one shot rule'. Otherwise, the absence of the requisite information or failure to meet the evidential steps set out in section 43(3) and 43(4) of the 2012 Act will result in the rejection of the application at this stage.

Title sheet marked 'provisional' by means of a note on the title sheet - prescription can begin to run.

Each of these stages is discussed in further detail in the appropriate sections below.

Checklist for prescriptive claimant application

To be accepted for registration, a prescriptive claimant's application must meet the following key evidential and procedural requirements.

the questions on the application form in relation to prescriptive claimants have been answered appropriately;

evidence - including affidavits - that the land has been possessed openly, peaceably and without judicial interruption by the grantor or by the applicant, or by the grantor and the applicant together for a one year period immediately preceding the date of application;

evidence that (a) the proprietor of the plot cannot be identified or, where identified, cannot be traced; or (b) 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 research into the title position;

evidence that notification was sent by recorded delivery post or equivalent;

evidence that notification was sent at least 60 days prior to application.

Registration staff are reminded that, in terms of section 44(1) of the 2012 Act, the Keeper must mark any resulting entry as provisional upon accepting a prescriptive claimant application. This would include any deed granted by or against a prescriptive claimant, for example, a standard security. Following a decision by a legal senior caseworker to remove a provisional marking, care should therefore be taken to ensure that all relevant provisional markings are removed from the face of the title sheet.

Completion of Application Form by Prescriptive Claimant

A prescriptive claimant application should be submitted using the universal Application for Registration form set out in Part 4 of the Schedule to the Rules. To see the application form, please click here.

Prescriptive claimant applications are applications for registration made under section 21 like any other application. The difference is that the applicant must satisfy the Keeper that the evidential requirements set out in sections 43 to 45 of the Act have been met.

The application form for First Registration applications specifically asks if the application relates to a prescriptive claimant and if the terms of section 43 of the Act have been met. The applicant should answer these questions "Yes” and this will indicate to the Keeper that this is a prescriptive claimant application.

Where the prescriptive claim is received as part of a DW or TP application, the applicant should set out the details in the further information part of the application form as the title information question is not auto generated for applications which affect a registered plot.

If a prescriptive claimant application is submitted based on a previously recorded disposition a non domino on which the prescriptive period is still running, the applicant should still answer these questions "Yes". See Disposition a non Domino Discovered After Application Submitted above under "Transaction Stemming from a Previously Recorded Disposition a non Domino" for further guidance.

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 are in respect of the one year period of possession.

Evidential Requirements to be Met by Prescriptive Claimant

Section 43 of the Act sets out two evidential steps that must be met in order for the Keeper to be able to treat a disposition a non domino as valid for the purposes of registration. These are:

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; and
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.

Each of these steps is discussed in further detail in the following paragraphs.

There are no exceptions to the evidential requirements set out in the 2012 Act, even for cases where evidence is presented to the Keeper that the interested party - the 'true' proprietor - has clearly indicated that they have no interest in the area of land conveyed by the disposition a non domino.

For example, in a situation in which the Keeper is advised that the King’s and Lord Treasurer’s Remembrancer ('KLTR') had previously issued a Notice of Disclaimer in relation to land that is the object of a prescriptive claimants application, it will nonetheless still be necessary for the applicant to comply with the evidential and procedural requirements in respect of notification set out in section 43(4) of the Act and regulation 18(1)(b) and Schedule 2 of the Rules.

Evidence of Possession by the Prescriptive Claimant

First evidential step - one year of possession

Section 43(3) of the Act sets out the first evidential step that must be met in order to allow the Keeper to accept a prescriptive claimants application for registration.

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 should be noted that the year of possession required under section 43(3) does not count towards the prescriptive period. Rather, it is an evidential 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.

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.

In terms of the evidence required to establish that there has been sufficient possession under section 43(3) of the 2012 Act, the Keeper will expect, at least, affidavit evidence going to possession (commensurate with ownership) - for a continuous period of one year immediately preceding the date of application - from the applicant or disponer. For example, affidavit evidence that the prescriptive claimant has cut the grass and maintained an open area of ground may not, of itself, be sufficient if the plot of ground forms part of an open area that is not fenced in and is accessible to other neighbouring proprietors or third parties.

Possession should be clearly attributed to the plot of ground to which the a non domino disposition relates. The normal rule is that possession is attributed to the lowest interest with which it is consistent. For example, a proprietor who has an a non domino title to the solum of a roadway may also have an implied or explicit servitude right over the roadway. In that case, use of the roadway in a manner that is consistent with the exercise of a servitude right would not validate the title to the solum. In the same way, a tenant who takes title a non domino to the landlord's interest cannot validate the latter title by simply occupying the land.

If there is any doubt as to the validity of the nature of the possession the application should be referred to a senior caseworker who should seek further guidance as required.

Affidavit, photographic and other forms of evidence

In terms of the evidence required to establish that there has been sufficient possession under section 43(3) of the 2012 Act, the Keeper will expect, at least, affidavit evidence going to possession for a continuous period of one year immediately preceding the date of application that the land has been possessed openly, peaceably and without judicial interruption during the relevant period. See guidance below.

Affidavit evidence

This may be provided by the applicant or disponer. It is likely that in many cases affidavit evidence from neighbouring proprietors will also be required. This may for example be to rule out competing possession and in certain cases this would include all bounding neighbours.

The wording of affidavits must be clear as to both:

the nature and extent of possession; and
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. 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.

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.
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;
In terms of regulation 9 of the 2014 Rules, any affidavit accompanying an application for registration must be made before a notary public.

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

Photographic evidence

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.

Other forms of evidence

Evidence from local authority records or utility providers may also be useful in certain circumstances. For example, for the purposes of establishing possession of a property at a particular time by demonstrating that utility bills were paid by the disponer or applicant party during the period in question.

One shot rule and supplementary evidence

In general terms, the one-shot rule requires applicants to get their applications for registration right first time and the circumstances in which it is competent to make a requisition by means of Keeper's letter LR07 are limited. 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.

While the application must still comply with the general application conditions and conditions of registration, in certain circumstances the applicant may be allowed to supplement their application with evidence additional to that initially submitted under section 43 of the 2012 Act.

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. The registration officer should therefore endeavour to identify all issues - plans, legal, procedural - that require to be addressed by the applicant during the 42 day standover period.

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 the further 5% to be added.

For example, in a situation where the prescriptive claimant applying for registration of a plot of ground complies with the procedural and evidential requirements regarding possession and notification and provides the relevant search sheet for the larger title of which the plot of ground forms part (with copies of relevant titles deeds) but it is unclear that they have examined subsequent breakaway titles shown on the search sheet to satisfy themselves that the plot of ground was not subsequently conveyed to a third party, it would be appropriate for the Keeper to issue an LR07 letter to the applicants asking for confirmation that they had satisfied themselves on this point.

Certain shortfalls cannot be remedied by allowing the application to be supplemented.

For example, where the applicant has carried out their notification and this is evident from a covering letter or the inventory attached to the application form 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 and will result in the rejection of the application.

Further guidance on the procedure for supplementing a prescriptive claimants application is available at Substitution or Amendment - Requisition Policy and Procedures.

Evidence of Notification by Prescriptive Claimant

Second evidential step - "true owner" notification

Section 43(4) of the Act sets out the second evidential step that must be met before in order to allow the Keeper to accept a prescriptive claimants application for registration.

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.

Who should be notified?

In terms of section 43(4) of the Act, the applicant must satisfy the Keeper that one of the following parties has been notified of the application:

a) Notification to Proprietor under Section 43(4)(a) of the Act; or

Where the land in question is registered in the land register, it should be relatively straightforward for the applicant to show how the proprietor was identified since there will be a title sheet.

Where the land in question is not registered the Keeper will require evidence as to how the applicant has traced the owner in the General Register of Sasines. Such evidence may include copies of the relevant search sheets and perhaps copy deeds.

Where the applicant has instructed searches from a private searching company then details of those instructions, and records of the results, should be submitted to the Keeper.

The Keeper will also require evidence as to whether the person identified by the applicant is still capable of being a proprietor. For example, evidence that:

the person identified is still alive; or
that the company identified has not been dissolved.

In the latter case, it is likely that a check with Companies House will be sufficient. However, in the former case the Keeper may require evidence such as the results of searches of the electoral roll or searches of other local authority registers, evidence of contact with local solicitors (e.g. the last solicitor to act), and even local newspaper advertisements.

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 under section 43(4)(b) of the Act; or

In order for notification to be acceptable under section 43(4)(b) of the 2012 Act, the Keeper must be satisfied that notification under paragraph section 43(4) (a) has not been possible. Therefore, the applicant must demonstrate that it has not been possible to identify or trace a proprietor. Evidence of failed searches would be required or, where appropriate, evidence showing a proprietor was traced but has died, including a death certificate.

Once it has been established that notification to the proprietor is not possible, it will be necessary for the applicant to demonstrate how the identity of the person notified under section 43(4) (b) was arrived at. The evidence required will depend on the nature of the person’s uncompleted title, and there are numerous possibilities. It is likely that in some cases the person will be a beneficiary of the person who has died, who can potentially complete title because they hold a confirmation with docket transferring title to them, but they have never done so. The evidence required in those circumstances would be the confirmation and docket.

It may be that in certain circumstances a person may be able to complete title by relying on a will that is sufficient in its terms. In order to be satisfactory for this purpose, the will must contain a clear conveyance to the beneficiary in person. The Keeper would also require the death certificate of the former proprietor and confirmation that the will is the last will and testament of the former proprietor.

c) if there is no such person (or if in either case, none can be identified) the Crown under section 43(4)(c) of the Act.

In order for the Keeper to be satisfied that notification under section 43(4)(c) of the Act is appropriate, evidence will be required that it was not possible to notify under section 43(4) paragraphs (a) or (b). The applicant must demonstrate that all steps, which might have identified potential persons under paragraphs (a) and (b), have been taken but have failed to reveal anyone.

Evidence required will include details of:

failed searches;
evidence showing that a proprietor was traced but they have died; and
evidence of attempts to trace individuals able to complete title, such as letters to last known addresses, contact with local solicitors or advertisements in local newspapers.

In some cases, applicants may assume that the existence of a notice of disclaimer issued by the KLTR removes the notification requirement under section 43(4) of the Act. However that is not the case. For the avoidance of doubt, the existence of a notice of disclaimer issued by the KLTR does not remove the notification requirement under section 43(4).

In the absence of evidence of the requisite notification having been made, the application will be subject to rejection.

Demonstrating that the correct person has been notified

In order to demonstrate that the requisite notification has taken place under section 43(4) of the Act the applicant must satisfy the Keeper:

that the correct person has been identified, or that all reasonable steps have been taken to identify the correct person, and
that the notification has actually been carried out and that it is sufficient in its terms.

In the Keeper's view the provisions of section 43(4) (as set out above) are 'hierarchical'. That is to say, the applicant must satisfy the Keeper that one of the following has been notified of the application:

the proprietor; whom failing
any person who appears to be capable of completing title; whom failing
the Crown.

These provisions recognise the Crown as the ultimate heir in Scots Law. The Crown is represented by the Crown Estate Commissioners in respect of property falling within the regalia minora (but see Crown Estate Commissioners, Crown Estate Scotland (Interim Management) and Crown Estate Scotland) and the King’s and Lord Treasurer’s Remembrancer for bona vacantia and ultimus haeres: the Crown succeeds as last heir, both in heritage and moveables, to every subject dying intestate (without lawful heirs entitled to take up the succession) cases.

Whom to notify is a significant question. This is because the a non domino disposition for which the prescriptive claimants application is made can only be treated as valid if the Keeper is satisfied that the notification requirement in section 43(4) of the Act has been met and also because section 45 of the Act provides that the Keeper must make her own notification when a prescriptive claimant application is received.

What is sufficient evidence of notification?

In addition to providing evidence to satisfy the Keeper that the correct person has been identified for notification purposes, the applicant must demonstrate to the Keeper's satisfaction that notification has actually taken place. The evidence required to demonstrate that the correct person has been notified will vary depending on the circumstances of the case and under which paragraph of section 43(4) of the 2012 Act the applicant is notifying.

In order to ensure that the notification made to individuals under sections 43(4)(a) and (b) is sufficient in its terms, and that the pertinent information is included, a prescribed form of notification is contained in Schedule 2 of the Rules. Regulation 18(2) of the Rules sets out that notification must be made using the prescribed form, a copy of which is included below.

The form in Schedule 2 directs the applicant to:

include their own contact details;
sufficiently identify the land in question;
specify under which paragraph of section 43(4) of the 2012 Act they are notifying;
list any midcouples or links being relied upon where appropriate; and
provide details of service (delivery) on the copy of the form being retained for inclusion with the eventual application.

For the avoidance of doubt, the notification form may be signed by either the applicant(s) or by a solicitor acting on their behalf.

Prescriptive Claimant

Name and address of prescriptive claimant (See note 1 for completion)
(Name and address of prescriptive claimant)

Name and address of person notified (See note 2 for completion)
(Name and address of person notified)

Description of the land over which a prescriptive claim is sought (See note 3 for completion)
(Description of the land over which a prescriptive claim is sought)

Applicable paragraph of section 43(4) of the Act (See note 4 for completion)
(Applicable paragraph of section 43(4) of the Act)

Evidence of links in title (required only where person notified under section 43(4)(b) of the Act) (See note 5 for completion)
(Evidence of links in title)

Service (See note 6 for completion)
(Service)

Applicant Statement and Declaration
I swear or affirm that the information contained in this notice is, to the best of my knowledge and belief, true.

Signature of person sending notice - Date
(Signature) (Date)

The notification form also contains explanatory notes which advise the notified person that a prescriptive claimant application is being sought, what this means, and what the implications are, together with guidance for the prescriptive claimant on the completion of the form.

Explanatory Note - This explanation has no legal effect

This notice is sent by a person who is seeking to become a prescriptive claimant under section 43 of the Land Registration etc. (Scotland) Act 2012 in respect of the land detailed in the notice. This means that the person is seeking to register a disposition in their favour in the Land Register of Scotland which, on certain other criteria relating to possession being met, will result in them becoming the owner of the land in question. You have been notified as a person who (a) appears to be the proprietor of the land or (b) appears to be a person who may be able to become proprietor of the land or (c) as a representative of the Crown. The notice will specify which of the three categories you have been notified under. If you have been notified as a person who may become owner the links between the last known owner and you will be detailed in the notice.

This notice does not require you to take any action. However, if you consider that you do own or are capable of becoming owner of the land in question and you wish to challenge the prescriptive claim or to negotiate a sale you are advised to contact your solicitor or other adviser.

Please note if the prescriptive claim proceeds to registration you may be notified again by the Keeper of the Registers of Scotland. The Keeper’s notification will contain guidance on how to respond to that notification.

Page 2 of form:

Notes for completion of the notification - These notes have no legal effect

Insert the name and address of the person or persons seeking to take a disposition of the area of land. If there is an additional address for correspondence (such as a solicitor) you may also insert this here and specify it as the address for correspondence.
Insert the name and address of the person being notified.
Describe the land in a way that is sufficient to identify it. Where the land has been registered in the Land Register the description should refer to the title number(s) of the title sheets for the plot of land or the larger plot of land of which the land forms part. Otherwise it should normally refer to and identify a deed (or deeds) recorded in a specified division of the General Register of Sasines.
Insert whether the person is being notified under section 43(4)(a), (b) or (c) of the 2012 Act. Where notification is to the Crown in respect of land which has or may have passed to the Crown as bona vacantia or ultimus haeres then notification is to the King’s and Lord Treasurer’s Remembrancer. Where notification is to the Crown in respect of land which is or may be held by the Crown by virtue of the regalia majora, then notification is to the Crown Estate.
Where notification is by virtue of s 43(4)(b) list the midcouples or links between the person with the last recorded or registered title and the person being notified.
Service – Do not complete until a copy of the notice has been sent to the person being notified. Then insert “XXX has been sent a copy of this notice by (specify the method of delivery used in compliance with regulation 18(1)(b) of the Land Register Rules etc. (Scotland) Regulations 2014 on (date of posting) at (address in notice).

Evidence of delivery

It is also a requirement, under regulation 18(1)(b) of the Rules, for notification to be by a postal service that allows delivery to be recorded. Delivery should be made to the last known address of the person identified, as per the evidence that demonstrates they are the correct person.

The prescriptive claimant provisions are designed so that specific individuals are identified and notified by the prospective prescriptive claimant, therefore public notification e.g. lamppost notices etc. is, by itself, not suitable.

The requirements in relation to notification made to the Crown are the same as to an individual. Although the Crown Estate Commissioners and King’s and Lord Treasurer’s Remembrancer are familiar with the prescriptive claimant scheme and so do not necessarily require the same level of explanation when notified, consistency of approach is more straightforward for applicants. Therefore, the prescribed form of notification must be used for Crown notification also, and this must be sent by recorded delivery, but see Crown Estate Commissioners, Crown Estate Scotland (Interim Management) and Crown Estate Scotland.