Is possession 9/10 of the law? - Making a prescriptive claimant application

In Scotland, if you have been occupying land to which you have no legal title, there is a way to seek to legitimise your occupation and take legal title to that land: it is called a ‘prescriptive claimant’ application. It is born out of the concept of ‘prescription’ which is a long established way of validating a defective title on the basis of occupation. The process for making this type of application is contained within the Land Registration etc. (Scotland) Act 2012. Once an application is registered, it gives the applicant a ‘provisional’ right to the land.

We have been tasked with making a number of these applications since the arrival of this new process. Our experience has given us a helpful insight into how an application should be structured in order to achieve the highest prospect of a successful claim.

In simple terms, the process is as follows:

1. Identify the land: an applicant should identify, through a title examination, the title to the land over which they wish to make their application. They should make thorough enquiries as to the ownership of the land, for example, by conducting property and company searches.

2. Evidence possession: the applicant must provide affidavits confirming they have been in possession “openly, peaceably and without judicial interruption” for at least one year. The affidavit should (where possible) reference a plan, detail the type of land, detail how it has been used and describe boundary features. Photographic evidence and extent of the occupation should also be given, if available.

3. Notification: the Act requires an applicant to notify the ‘relevant party.’ The relevant party will be (a) the true owner, (b) if there is no true owner, any party who is able to validly complete title, or (c) if there is neither a true owner, nor a party who is able to complete title, then the Crown. Even if the relevant party has no interest in completing title they must be notified and are given 60 days to object. The 60 day period must have lapsed before an application is made to the Land Register.

4. Transfer: a disposition (the transfer document) should be prepared for signing by the applicant. The transfer cannot be by the applicant in its own favour, so applicants often prefer to create a distinct entity/SPV to take the provisional title and act as the transferee. The disposition is then submitted to Registers of Scotland with all other supporting evidence. Registers of Scotland may make contact to request any absent or necessary information, rather than refusing an application outright. It is therefore wise to provide all available supporting evidence, and include detailed background information within the application form, to pre-empt queries from Registers of Scotland, and thereby accelerate the process. Along with the application, registration fees based on the market value of the land must be paid, and a Land and Buildings Transaction Tax return calculated on the basis of the land value must be submitted (so valuation advice is an essential part of the pre-application process).

5. Re-notification: Registers of Scotland will examine the application and if it is acceptable they will re-notify the relevant party. The relevant party then has a further 60 day period to object. If the correct party has not been notified then the application will be rejected and the applicant will have to start the process from the beginning.

6. Registration: providing no notified parties have objected, the provisional title will then be registered and a title sheet created. From this date prescription will then run. If at the end of ten years it can be shown that the property is still being occupied without interruption and appropriate supporting evidence can be provided then the provisional status may be removed. The standard of evidence will remain as high as when the first application is made. Only once the provisional status has been removed, will there be a ‘clean’ title. During this ten year period, it is possible to sell, purchase or transfer land which is the subject of a provisional title as the provisional status runs with the land, not the applicant. It is crucial that the necessary possession evidence is retained for the whole ten year period covering all proprietors.

Our experience in this relatively new area means we are ideally placed to assist with any queries or potential applications.