Adverse Possession of Land in Scots and English Law

8/10/2019 Adverse Possession of Land in Scots and English Law

1/10

British Institute of International and Comparative Law

Adverse Possession of Land in Scots and English LawAuthor(s): D. J. CusineReviewed work(s):Source: The International and Comparative Law Quarterly, Vol. 45, No. 3 (Jul., 1996), pp. 667-675Published by: Cambridge University Presson behalf of the British Institute of International andComparative LawStable URL: http://www.jstor.org/stable/760686.

Accessed: 25/01/2012 09:57

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at.http://www.jstor.org/page/info/about/policies/terms.jsp

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms

of scholarship. For more information about JSTOR, please contact [email protected].

Cambridge University PressandBritish Institute of International and Comparative Laware collaborating with

JSTOR to digitize, preserve and extend access to The International and Comparative Law Quarterly.

http://www.jstor.org
http://www.jstor.org/action/showPublisher?publisherCode=cuphttp://www.jstor.org/action/showPublisher?publisherCode=biiclhttp://www.jstor.org/action/showPublisher?publisherCode=biiclhttp://www.jstor.org/stable/760686?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/stable/760686?origin=JSTOR-pdfhttp://www.jstor.org/action/showPublisher?publisherCode=biiclhttp://www.jstor.org/action/showPublisher?publisherCode=biiclhttp://www.jstor.org/action/showPublisher?publisherCode=cup


2/10

JULY

1996]

Contract:

Anticipatory

Breach in French Law

667

anticipatory

breach.

Here,

then,

if

but

to

this limited

extent,

the two

systems

are

not

as

starkly

different as

they

at

first

appear.

SIMON

WHITTAKER*

* Fellow,St John'sCollege,Oxford.

ADVERSE POSSESSION OF

LAND IN

SCOTS

AND

ENGLISH

LAW

IN

Scotland,

like

England, possession plays

a

part

in

landownership.

In Scotland

a

non-owner

may acquire

a title to land

by

the

operation

of

prescription;'

n

England

the

title of an owner

may

be

lost

by

limitation2but an easement can be

acquired by

prescription,'

as

can a

servitude

in

Scotland.4

Because

the

acquisition

of

ownership

in Scots law is by the operation of prescription, both a title and possession are

necessary,'

whereas

in

England only possession

is

required.

Although

the

theory

behind and

the

purpose

of

adverse

possession

are different

in

each

jurisdiction,

as

are the

periods

of

possession,

the result

in

many

cases

will be

similar.

The

purpose

of this article is

to look

at the similarities and the

differences,

and to consider

recent cases

on

possession

in

each

jurisdiction

to show to what

extent,

if

at

all,

one

jurisdiction may

learn

from

the other. The

Prescription

& Limitation

(Scotland)

Act

1973

codified

the

law

and,

although

it shortened the

period

of

prescription,

cases decided

under

the

previous

law,

notably

those

on

the

requisites

of

pos-

session,

are

still

relevant.

A.

Title

As has

been

said,

because Scotland

adopts

the notion

of

prescription

rather

than

limitation there is the

dual

requirement

of a title and

possession.

The

description

in

the title deeds

which is

relied

upon

must be sufficient

to include the

subjects

claimed,

or

alternatively

must

not

be

clearly

exclusive

of

them.

Patently,

therefore,

a title that contains a

description

of land which

clearly

excludes the land claimed

cannot

be a

basis

for

prescriptive

acquisition.

The 1973

Act

provides

for two

types

of

situation. One is where the

title to an

interest

in land is

recorded

in

the

Regis-

ter

of

Sasines

(a

register

of

deeds)

or the Land

Register,

which

for

this

purpose

is

not

dissimilar to the

English

model,

and the other is where the deed is not so

recorded

or

registered.

The

only

difference between the two is

that,

in

the first

case,

the

period

of

possession

is ten

years,6

whereas

in the second it

is 20

years.7

Most cases

would be

in

the first

category,

but non-feudal

subjects,

e.g.

those

in

Orkney

and Shetland still covered

by

udal

law

where there would be a written

deed

(but

not one

appearing

in either the

Register

of

Sasines

or

the

Land

Register)

1.

Prescription

&

Limitation

Scotland)

Act

1973

1973Act ),

ss.1-2.

2. LimitationAct 1980

1980

Act ),

s.15(1).

3.

Prescription

Act

1832,

.2;

Gale

on Easements

13thedn),

pp.162-163.

4. 1973

Act,

s.3.

5. The

problems

reated

n

English

aw

by

the

differencesbetweenadverse

possession

and

prescription

o

not

exist

n

Scots aw.See

Michael .

Goodman,

AdversePossession

r

Prescription?

roblems f

Conflict

1968)

32

Conv.

&

PropertyLawyer

270.

6. 1973

Act,

s.1.

7.

Idem,

s.2.


3/10

668 International

and

Comparative

Law

Quarterly [VOL.

45

would be

in

the second

category.x

The

only

additional

requirement

is

that the deed

on which

prescriptive possession

is based must

not

be

ex

facie

invalid or

forged.'

Apart from the need for a title, the principaldifferences between the two sys-

tems are

to

be

found

in

the

length

of

time

required

for adverse

possession,

when

the

period begins,

how it

may

be

interrupted

and the effect

of

lapse

of time. That

said,

as can be seen

from what

follows,

what

the courts

look for

in

order to

establish

adverse

possession

is

similar in

Scotland and

England.

B.

Possession

While the

Limitation Act 1980

speaks only

of

possession ,

he

corresponding

Scottish

provision requires

that the

possession

should be

open, peaceable

and

without judicial interruption . In addition to that statutory requirement, pos-

session must

be

continuous

and

with

a view

to

acquiring

ownership

of

the

subjects

possessed.

Nothing

further need

be

said

at

this

point

about

judicial interruption,

but

something

can

usefully

be said

about

possession

generally

and about the

spe-

cific Scottish

requirement

that

it be

open

and

peaceable.

The

institutional

writers

describe

the

requirement

for

possession

by

saying

that it should be

nec

vi,

nec

clam,

nec

precario

and

one such

writer, Erskine,

said:'2

Violent

possession

s whenone turnsanotherout

masterfully,

r

by

forceout of

pos-

session,

and

puts

himself

n

his

place

..

Possession s

got

clam,

when

one,

conscious

thathis

right

n

the

subject

s

disputable,

nd

apprehending

hat

he will

not

be

suffered

totakeopenpossession, atchesanopportunityfgettingnto tsurreptitiously,rin

a clandestinemannerwithout he

knowledge

f

the owner.Where

one

possesseth

at

his own

request,by

the

toleranceor

bare

icenceof the

proprietor,

t is called

pos-

session

precario.

Possession

which

is

open

is not secret

possession

and so the use

of a

route

by

shepherds

during

the

hours of

darkness

would not

qualify.

In

England possession

must also be

open,

because

it

would otherwise be

impossible

to

demonstrate

that

the true

owner had

been

dispossessed.

As was said

in

Leigh

v.

Jack, acts

must

be

done

which

are inconsistent

with

his

[the

true

owner's]

enjoyment

of

the soil

for

the

purposes

for which

he

intended to

use

it .'

However,

while for the

purposes

of

the

acquisition

of an easement forcible

possession

would

not

qualify,

for the

pur-

poses

of adverse

possession

forcible

ejection

of the owner would be

irrelevant.-5

In

Scotland it is

not

necessary

that

there

should be

personal possession

by

the

claimant;

possession

might

be

by employees,

tenants

or others who have the

con-

sent

of

the adverse

possessor.'

English

cases such

as

Hughes

v.

Griffin,'7

Heslop

v.

Burns' and

Hyde

v.

Pearce 'are

also

illustrative

of

this

principle.

However,

even

if

8. Ibid.

9.

Idem,

.1(IA).

10. S.15.

11. 1973

Act,

s.1.

12.

Erskine,

An

Institute

f

the Law

of

Scotland,

Book

II,

Title

i,

Section23.

13.

McInroy

.

Duke

of

Atholl

1891)

19 R.

(HL)

46

(a

claim

of

a

servitude).

14.

(1879)

5 Ex.D.

264,

273

(per

Bramwell

LJ).

15. Mount Carmel Investments

Ltd v.

Peter Thurlow Ltd

[1988]

1 W.L.R.

1078.

16. 1973

Act,

s.15(1).

17.

[1969]

1

W.L.R.23.

18.

[1974] 1

W.L.R. 1241.

19.

[1982]

1 W.L.R.560.


4/10

JULY

1996]

Adverse Possession

in

Scots Law 669

there

is

possession

it is essential

in

both countries

to

show that

it

is adverse

and

with the

intention

of

acquiring ownership.2?

n

Duke

of

Argyll

v.

Campbell2

the

court recognised this principlebut declined to recognise Campbell's possession as

sufficient

to

constitute

ownership

in that he

occupied

one of the

Duke's

properties,

the castle

at

Dunstaffinage,

as

keeper

and

could

not

therefore demonstrate

pos-

session

as the owner.

In another Scottish

case,

Houstoun

v.

Barr,

the claimant's

possession

was

equally

referable to

a

lease and

accordingly

prescription

did not

operate,

and

in

England

there

is a

long

line

of

authority

from

Leigh

v.

Jack

through

to

Williams Brothers Direct

Supply

Ltd

v.

Raftery23

nd

George

Wimpey

& Co.

Ltd

v.

Sohn24

which

supports

this view.

C.

The Nature

of

Possession

Although

it

is

possible

to define the

requirements

for

possession

in

both

countries,

it

is

recognised

that

it

is

impossible

to define

precisely

the nature

of

the

possession

required

in

any

one

case;

it

will

vary

depending

on

the

type

of

property

involved.

Thus it would be difficult to

argue

that

there had

not

been adverse

possession

where

an

area

has been fenced off or

incorporated

into the

garden

of a

domestic

property

and used

for the

requisite period.2

As was said

in

one

English

case,

enclosure

is

the

strongest possible

evidence

of

adverse

possession .2'

Although

that

may

be

so,

however,

it would be

inappropriate

to take

the

contrary

view in the

case

of a

large

estate

if

it

had not been fenced.

In a

recent

English

case the matter

was

put

in this

way by

the Court

of

Appeal:27

Factual

possession ignifies

an

appropriate egree

of

physical

ontrol.

It

mustbe a

single

and

[exclusive] ossession

hough

herecan be a

possession

ncreased

by

one

on behalf

of severalowners

ointly.

Thusan ownerof

landand

a

person

ntruding

n

that land

withouthis

consent

cannotboth be

in

possession

of the land

at

the same

time.

The

question

whatacts

constitutea sufficient

egree

of exclusive

physical

on-

trol

must

depend

on the

circumstances,

n

particular

he

natureof the

land and

the

manner

n

which and

of

that nature

s

commonly

used

or

enjoyed.

That

approach

can be

seen

clearly

in

Buckinghamshire County

Councilv.

Moran.28

In 1955 the plaintiffs had acquired a plot of ground for the purposes of a road

diversion. The

plot

seems

to have been in the middle

of

a row of

houses,

one of

which came into the defendant's

ownership.

Before that

happened,

the Council

had

merely

fenced

off

the land because

it did not

intend

to

carry

out the roadworks

for

some time.

From the latter

part

of

the 1960s the owner

of

one

of

the

adjoining

properties

cut

the

grass

on the

plot,

a fact known

to

the Council.

Following

the

acquisition,

the

Council did not

send

its

own

employees

to

the

plot

to cut the

grass,

20.

Powell

v.

McFarlane

1977)

38 P.

&

C.R.

452.

21. 1912S.C.458.

22.

1911S.C.

134.

23.

[1958

1

Q.B.

159.

24.

[1967]

Ch. 487.

25. See

e.g. GeorgeWimpey

&

Co.

Ltd

v. Sohn

[1967]

Ch.

487,

511

(per

Russell

U),

but

the

case itself illustrates he fact thatenclosure s not conclusive

n

every

nstance.See

also

WilliamsBrothers

Direct

Supply

Ltdv.

Raftery 1958]

1

Q.B.

159,

170

(per

Hodson

LJ).

26.

Seldon

v. Smith

1877)

L.T.

168,

169

(per

Cockburn

CJ).

27. Powell

v.

McFarlane,

upra

n.20,

at

p.470

per

Slade

U).

28.

[1990]

Ch. 623.


5/10

670

International

and

Comparative

Law

Quarterly

[VOL.

45

or

otherwise

keep

the

plot

in

an

orderly

fashion.

Moran

acquired

the

adjoining

property

in

question

in

1971,

knowing

about the

ownership

of

the

plot.

However,

a

visual inspection of the plot would have given the impression that it formed partof

Moran's

garden.

In

1976

the Council wrote to Moran

disputing

his

right

to

use

the

plot,

but

took

no further action until

1985,

when

proceedings

to recover

possession

were

commenced-by

which

time

Moran had been

using

the

plot

as

garden

ground

for over 12

years.

The

Council's

argument

was that

merely leaving

the

plot

alone could not

give

rise

to a claim

by

Moran,

as his

possession

was

not

adverse

to

the

Council's

claim.

Moran's stance

prevailed.

The court

accepted

that the burden

of

proof

on an adverse

possessor

was

a

high

one

but,

in the

circumstances,

it

had

been satisfied.

In

Higgs

v. Nassuarian Ltd21

t was

pointed

out that it

is

not

necess-

ary for anyone claiming adverse possession to demonstrate that there has been

physical

use

of

the whole area claimed. The

Privy

Council in that

case

cited with

approval

the

opinion

of

Lord Blackburn

in

the Scottish case of Lord Advocate

v.

Lord

Blantyre. 3

Two

Scottish cases

are

instructive.

The

first is Buchanan

v.

Geils,-'

in which there

was

a

dispute

about

ownership

of the

foreshore,

which

would

be

in

the

ownership

of the

Crown

in the

absence of

an

express grant

or a title

fortified

by

prescriptive

possession.2

The

pursuer

founded on a title

in

which the

description

of the

lands

was

general

and was

capable

of

including

the foreshore.

He founded on

various

acts of

possession,

viz.:

the

pursuer

and

his

predecessor

in

title had taken

soil,

sand

and

gravel

from the foreshore for use as

building

materials,

they

had erected a

fence below the low water

mark,

had

grazed

their cattle

and

had

also

built a

pier

and

charged

those

using

it.

These acts

were

held to be sufficient to amount to

prescriptive possession.

In a

more recent

case,

Bain v.

Carrick,

he

ownership

of a

piece

of

ground

was

in

dispute

in

that the

adjoining properties

were both

described

in a

way

which

could have

included

the

disputed

area.

However,

for

a

period

in

excess

of ten

years

the

pursuer

and his tenants had used the

ground

for

rough

shooting

in

the belief that he owned

it.

The defenders were unable

to

establish that

they

had made

any

use of

the

ground

and

so the

pursuer's

claim

was

preferred.

There are numerous other cases,34but in all of them the acts of possession

extended

over

the whole

period

of

prescription.

In the most recent

case,

Hamilton

v.

McIntosh Donald

&

Ors,35

he issue

of

possession only

of

parts

of a

large

area

and

at

different times was of the essence of the case. Hamilton

purchased

the

resid-

ue

of

an

estate

at

Portlethen,

near

Aberdeen,

including

the

Moss

of

Balquharn,

which covers 13 acres and

is

part

of the Moss of Portlethen. In 1991 he

began

an

action

against

McIntosh

Donald,

contending

that McIntosh Donald had no title to

the Moss of

Balquharn,

even

though

their

predecessors

had recorded

a

disposition

29.

[19751

A.C. 464.

30.

(1879)

6

R.

(HL)

72, 85;

4

App.

Cas.

770,

779.

31.

(1882)

9 R. 1219.

32.

Gordon,

Scottish Land

Law,

para.7-02.

33. 1983 S.L.T. 675.

34.

E.g.

Young

v.

North

British

Railway

Co.

(1887)

14 R.

(HL)

53;

Lock v.

Taylor

1976

S.L.T. 238.

35. 1994 S.L.T. 212; 793.


6/10

JULY

1996]

Adverse

Possession in Scots Law

671

in

1950 to

the area

in

question.

Hamilton claimed

that

although

this deed

had been

recorded

it

was

a title a non

domino

(by

a

non-owner)

on

which there had

not

been

any prescriptivepossession. The defenders argued that if they could establish pos-

session

over a

ten-year period,

their title was

preferable

to

Hamilton's.

The

issues

were what

possession

there had been

(if

any)

and whether that was sufficient.

The

evidence

presented

by

the defenders

was

that

a

survey

had

been

carried

out

in

1972,

some

peat

extracted

in

1976,

a

fence moved

in

1981,

boreholes

made

in

1982

and land

had

been surrendered

to the

Scottish

Office for a road

junction

in

1984.

For

convenience,

these acts

can be called

lesser

acts

of

possession .

These

were

not

the

only

acts,

because the case turned

really

on

the

significance

of

two

other acts

of

possession,

viz.

shooting

and

the

dumping

of waste. At first

instance,

Lord Prosser took the

view

that,

looking

at

all

of

these,

there was sufficient

to

establish

ownership.

Hamilton

appealed against

this

decision

to the

Inner

House

and

they upheld

the decision

by

a

majority

(the

Lord Justice-Clerk

(Lord

Ross)

and Lord

Wylie,

with Lord

Murray dissenting).

The

Lord Justice-Clerk

looked

at

the lesser acts of

possession.

The

surveyor

had

walked over the whole

moss,

but

the

taking

of

bores had lasted about

one week.

Both

Lord Prosser and

the Inner House

judges regarded

that

as

a one-off

event

and without

any

material

significance

as far as

prescription

was

concerned. The

Inner House took the same

view of

the

peat-cutting,

which had lasted

only

three

weeks.

The Lord Justice-Clerk did

not

think that the

moving

of

the

fence

was

of

any significance either but, even if it was, it related only to a very small part of the

moss and at one

edge

of it.

The boreholes

in

1982 were

again regarded

by

the Lord

Justice-Clerk as

being

of

a

transient

nature.

So

far as the land for

the

road

junction

was

concerned,

the

Inner

House

judges

thought

that

that

might

be

an

assertion

of

ownership

of

the

part disposed

of,

but it said

nothing

about

the

ownership

of

the

part

retained.

Therefore,

looking

to

the lesser acts of

possession ,

they

were

insufficient to establish

any

right

of

ownership.

The

important point

was,

there-

fore,

what effect

the

shooting

and the

dumping

had.

At

first

instance,

Lord Prosser

was

satisfied

that the

shooting

had taken

place

with the

consent of

the

possessors,

but there are a number of matters which were not brought out clearly in the evi-

dence.

A

father and son said

that

they

shot

over the

moss,

but

it

was

not clear

whether

they

thought they

had

permission

and

from whom.

Despite

that

Lord

Prosser concluded that

they

had

permission

from

those

purporting

to be the own-

ers. So far as the

dumping

was

concerned,

the

evidence was

that this had occurred

on and

off all

the

year

round,

but

it

took

place

almost

every day

in

the

spring

when

stones were

being

removed from arable

farming

land round about. The

dumping

was, however,

restricted to small

parts

of the moss and the Lord Justice-Clerk

accepted

that it could

not

be

seen

as an assertion

of

ownership

of the whole moss.

The Lord

Justice-Clerk's

summing

up

of

the

evidence was as

follows:36

The critical

question

s

whether he evidence as a whole discloses

possession

of

a

sufficient

uantity

nd

quality

o indicate hat he firstdefenderswere

asserting ights

of

ownership

n

plot

1271

the

Moss].

I

ambound o

say

that

I

regard

hisas

a

narrow

question

upon

which

my

opinion

has

wavered

during

my

consideration f the

case.

From he first

defenders'

point

of

view

the best evidenceof

possession

s

in

the fact

that

shooting

ook

place

..

from

1970

until

at least

1979

when

Mr

McGregor

enior

36.

Idem,

p.800.


7/10

672

International and

Comparative

Law

Quarterly [VOL.

45

died.

Thishad nvolved

he

McGregors

nd

MrJohnstone

oing

over

the whole

area

of

the

moss,

but the amount

f

game

shot

appears

o havebeen

very

small,

and

shoot-

ing appears

o have

taken

placemainly

on

Saturdays uring

he

shooting

season.

Nevertheless,

regard

he

shooting

as

constituting

clearassertion f

ownership

ver

nearly

en

years,

and

having egard

o the natureof the

shooting,

amof

opinion

hat

it can

reasonably

e

regarded

s continuous

.. As

already

ndicated,

am satisfied

that

they [the

first

defenders]

can

rely

only

on the

dumping

carriedout

by

the

McGregors

utthat

was

very

ocalised nd

s not

sufficient o

support

he

proposition

that the

first

defenders

were

asserting ossession

of the

whole of

plot

1271.

He

then

went

on

to

consider the other

evidence

and concluded

that there

was

just

enough

to

enable

him

to conclude that

there

had been

possession

for the

prescrip-

tive

period.

Lord

Wylie

basically

took

the same

approach

as

the Lord Justice-

Clerk and reached the

same conclusion.

Lord

Murray,

however,

dissented. After

assessing

the

evidence,

he said:7

On

any

view of the evidence

whichwas

led beforethe

Lord

Ordinary

Prosser],

t

is

clearthatthe

actsof

possession

on which he defenders

had

to

rely

were

minimal

n

numberand

extent,

no

single

one with the

possible

exceptions

of seasonal

rough

shooting

and

dumping,being

continuous

hroughout

he

prescriptive

eriod,

nor

affirmingtrongly

he

quality

of an

owner's

possession

of the

whole.

In

his

opinion,

to

justify

an

inference of

continuity,

the

acts of

possession

would

have

required

to be continuous

in

time,

place

and circumstance

and would have

to

indicate

continuous

rather

than

sporadic

occupation.

In relation

to the

shooting,

Lord Murraypointed out that the evidence tended to indicate that permission to

shoot

had been

given

not

by

the

defenders

but

by

farm

managers

and

so

this was

not

possession

by

those

claiming

ownership.3

The decision

was for

him a narrow

one

also.

Although

Hamilton

marked an

appeal

to the House

of

Lords,

the

case

was settled

prior

to the

hearing.

In

reaching

their decision

the

majority

seemed

to take

into consideration

the

lesser acts of

possession

which

they

did

not

regard

as

being

indicative

of

prescrip-

tive

possession,

and that

seems odd. For

that reason

Lord

Murray's

reasoning

is

the

sounder.

There are three features

of the case

which are

significant.

The first is

that

this was an

appeal

from a

judge

who saw

the witnesses

and an

appeal

court

is

always

reluctant to

take a

different

view on

the

evidence.

That

said,

the issue

was

about neither

the

credibility

nor the

reliability

of

the evidence

but the

weight

to be

given

to

it,

assuming

its truthfulness

and

reliability.

The second

was the

nature of

the

subjects

claimed.

Obviously, possession

of

a

landed

estate

will be of a different

nature

from that

of a domestic

garden.

If someone

were

claiming

adverse

pos-

session of a

garden

area,

it would

not be unreasonable

to

expect

the

ground

to be

fenced

off,

or

otherwise

incorporated

into the other

subjects

of which it

would

become an

adjunct.

One would also

expect

evidence

of constant

use

of the

whole

area,

or at least a

very

substantial

part

of

it. Where the

subjects

are

13 acres

in

extent, as the Moss of Balquharn was, it is inappropriate for the law to insist on

fencing

it

off,

or on

constant use

of the

whole area.

Because

of that

it

may

be that

an

adverse

possessor

should be

required

to establish

more

than was

established

in

Hamilton.

As Lord

Murray

said,

the

possessory

acts

ought

to have

been

continu-

ous and

it

may

be

argued

that

they ought

to have

been

significant

in relation

to the

37.

Idem,

p.801.

38.

Idem,

p.802.


8/10

JULy

1996]

Adverse

Possession

in

Scots Law

673

whole

of the

area

claimed.

Thus,

even

if

it had

been

established

that

dumping

had

taken

place

for ten

years,

but

only

in

part

of the

Moss,

that would

not

be sufficient

to establish ownership of the whole Moss. The case also raises the issue whether a

person claiming

title

based

on

adverse

possession

(and afortiori

in

England

where

no title

is

required) ought

to be

required

to

give

notice of the existence of the deed

on which adverse

possession may proceed.

This

argument,

if

it has

weight,

has

greater

force the shorter the

period required

for

adverse

possession.

Thus,

when

the

period

of

possession

was

40

years,

or even

20,

it could be

argued

that that is

sufficiently long

so that

any

owner

who has

neglected

to

police

his or

her owner-

ship

over such a

period ought

not to be able to

complain

about

the

activities

of

an

adverse

possessor.

The

author's

own view

is

that the same

applies

to a

ten-year

period, but any furthershortening of the period would raise this issue more starkly

and

is

perhaps

an

argument

not for

requiring

notice

but for not

shortening

the

period

of

prescriptive,

or

adverse,

possession

any

further.

Having

noted similarities

in

what

the two

systems require

for

possession,

we

now consider the

differences,

viz.

the

length

of the

period

of

possession, interrup-

tion of

possession

and

the

effect

of

the

lapse

of

that

period.

D.

Length

of

Time

In

Scotland

the

original

period

laid

down

in

the

Prescription

Act

1617 was

40

years,

whichwas reduced to 20 years in 18741 ndfinallyto ten in 1973.41 he general rule

in

England

is 12

years,4

ut it used to be

20

years,

a

requirement

which dates back

as far as

1623.42

here are

exceptions

to the

general ten-year

rule

in

Scotland,

such

as

servitudes

(easements)

where the

period,

as

in

England,

is

20

years.43

Another

exception

is

the

acquisition

of land from the

Crown-usually

the foreshore-

where the

period

in

Scotland is

20

years44

and

in

England

60

4

In

Scotland

the

concept

of a charitable

corporation

sole is

unknown,

but

in

England

the relevant

period

where such a

body

is

involved is 30

years.46

E.

Interruption

and

Postponement

In

both countries the

running

of the

period

of adverse

possession

may

be inter-

rupted by

court

proceedings.

In

Scotland all that is

required

is

that the

action

be

raised47 nd

it

would seem

that

the action

can be

sisted thereafter. In

England,

that

seems

to be the

position

also

in

that the Limitation

Act

198048

rovides

that

no

action shall be

brought

after twelve

years

and

action

is

defined

as

including

any proceedings

in

a court of

law .4

hysical interruption

is

also a means of

stop-

39.

Conveyancing

(Scotland)

Act

1874,

s.34.

40. 1973 Act, s.l.

41. 1980

Act,

s.15.

42. 21

Jac.

1

c.

16,

s.1(3)

re-enacted n Real

Property

LimitationAct

1832,

.2.

43. 1973Act

s.3;

Bryant

.

Foot

(1867)

L.R. 2

Q.B.

161,

179

(per

Cockburn

CJ).

44. 1973

Act,

s.1(4).

45.

1980

Act, Sch.1,

para.11.

46.

1980

Act,

Sch.1,

para.10.

47. 1973

Act,

s.4.

48.

1980

Act,

s.15.

49.

Idem,

s.36(1).


9/10

674 International and

Comparative

Law

Quarterly

[VOL.

45

ping

the time

running

where,

for

example,

the true owner resumes

possession

and

then

surrenders

or abandons

it

later,

but

a distinction

has

to

be drawn between

that

situation and one in which there is no more than a temporary non-occupation, for

example

for

a

holiday. '

In

the recent

English

case

of Mount

Carmel

Investments

Ltd

v. Peter

Thurlow

Ltd5'

he

plaintiffs'

solicitors sent a letter to the defendants

requiring

them to vacate the

premises

which

they

were

occupying.

This was done

in

the belief that

the

plaintiffs

had

a better

right

to the

premises.

It

was

held,

cor-

rectly,

that

sending

a letter was not sufficient

in

terms

of

the 1980

Act2

to

stop

the

period

of

limitation

running

and,

since the defendants had been

in

possession

for

13

years, they

were

to

be

preferred

to

the

plaintiffs.

In

Scotland,

in a

similar

decision,

it

was held that

the

mere intimation of

a

claim,

without court

proceedings

being

raised,

was not

enough

to

interrupt

the

running

of

the

period

of

prescription.*3

In

England,

but not

in

Scotland,

the

running

of the

period

can be

postponed

in

two

instances: where there

is

disability;

or

fraud,

deliberate concealment

or

mis-

take.54

(It

can also be

interrupted

by

part-payment,

but that

is

not

relevant

in

cases

of

adverse

possession.)

In

the case of

disability,

the

period

is extended

by

six

years

from

the

time the

disability

ceased or on

death

whichever is the earlier but this

is

subject

to a maximum

period

of 30

years.

In

Scotland,

under the

Prescription

Act

1617,

the

position

was similar

to

that

in

England, except

that

disability simply post-

poned

the

operation

of

prescription.

The

position

was

changed

in

1874, 6

when the

period of prescriptionwas reduced from40 years to 20, butwith the proviso that,in

the case of

disability,

the

period

would be extended

by

ten

years.

The

Prescription

& Limitation

(Scotland)

Act 1973 reduced

the

period

to ten

years,

but does not

make

any

allowance

for

disability.

At first

sight

this

may

seem

inequitable,

but the

Scottish

Law

Commission,

which considered reform

in

particular

in

this

area,17

followed the view

of

an earlier committee that

anyone

under

disability

who

is

also

the

owner

of

land

will

almost

certainly

have a

guardian

either de

facto

or

de

jure,

and

that

person

will

be,

or

ought

to

be,

vigilant

in

ensuring

that the

person

under

disability

is

not

dispossessed.

In

Scotland the

possessor

may

have obtained

possession by

fraud,

etc.

but this

does not

prevent acquisition

of title

by prescription.

However, the

possession,

as

we

shall

see,

must be

open

and

peaceable.

Furthermore,

because

both a title

and

possession

are

required,

the true

owner

may

at

any

time

inspect

the

Register

of

Sasines or the Land

Register

to see whether

any conflicting

interest has been

recorded

or

registered.

If

it

has,

the

remedy

is in his hands. The

only

situation

which could be

considered

in Scotland to

be

akin

to fraud

is

forgery,

and where

the

deed

on which

prescription

is

based

is

a

forgery

prescription

does

not

run.58

That

apart, good

faith

is

not

a

requirement.

50. Erskine, op. cit. supra n.12, Book III, Title vii, Section 42.

51.

[198811

W.L.R. 1078.

52. 1980

Act, Sch.1,

para.

8(2).

53.

Troup

v.

Aberdeen Heritable Securities

Co. Ltd

1916 S.C. 918.

54. 1980

Act,

ss.28,

32.

55.

Idem,

s.28.

56.

Conveyancing

(Scotland)

Act

1874,

s.34.

57.

Prescription

and Limitation

of

Actions,

Memorandum

No.9(1),

Prescription

and

Limitation

of

Actions,

Scot. Law

Com.

No.15

(1970).

58. 1973

Act,

s.1A.


10/10

JULY

1996]

Adverse Possession in Scots Law

675

F.

Effectof

Lapse

of

Time

In

Scotland,

on

the

expiry

of the

ten-year

period,

the

person

in

possession acquires

an unassailable title to the

subjects,

unless the deed is a

forgery

or is ex

facie

invalid.

In

the case of

registered

land,

at

the

time of first

registration

of the title the

Keeper

of the

Registers

of

Scotland5v

will

exclude

indemnity,

because there is a

previously registered

and hence

competing

title.

If,

however,

on the

expiry

of the

period,

the

possessor

is

able

to demonstrate that

he

has

been in

possession

con-

tinuously

for the

requisite

period

and that

the

possession

has been

open, peace-

able and

without

judicial

interruption,

the

Keeper

will remove the exclusion of

indemnity.

In

England

the

position

is

that

the

squatter

does not become the true

owner,

at

least

in the

case of

unregistered

land. '

All

that the

expiry

of the

period

of

limitation does is to exclude a claim by the proper owner. In the case of registered

land,

the

opinion

has been

proffered

that the

registered

estate

may

be

vested

in

the

adverse

possessor,'

by

virtue of section 75 of the Land

Registration

Act

1925,

but

the

courts

have not

yet

expressed

a view

on

the matter.

However,

in

Fairweather

v.

St

Marylebone

Property

Co.

Ltd62

Lords Radcliffe and

Denning

did

not think that

that

was

the

effect,

because,

in

the

words

of

Lord

Denning,

the effect of the Statute

of Limitations

is

negative

and

not

positive.6'

G.

Conclusion

While there

are

undoubtedly

different

bases for adverse

possession,

and different

consequences

which follow from the

expiry

of the

periods

of

such

possession,

the

results in cases with the same facts

could

be the same. The Scottish

and

English

courts have faced similar

issues,

e.g.

what

weight

to

give

to

certain acts

of

pos-

session,

and dealt

with them in

ways

which

are

not

substantially

different.

No

one

would

argue

that cases

decided

in the

context of

prescription

are

necessarily

to

be

decided

in

the

same

way

in

England,

or that cases

on adverse

possession

in

England

can be

looked

to in a Scottish

context;

nevertheless,

the

issue

of

pos-

session

is

central to both

systems

and it

is in

that context

that

one

system may

in

appropriate

cases

provide

useful

guidance

to

the other.

D. J. CUSINE*

59. Which

nclude he

Register

of Sasinesand the Land

Register.

60.

Tichbourne

v.

Weir

(1892)

67 L.T.

735.

61.

Megarry,

Manual

of

Real

Property

(6th

edn),

p.528.

62.

[1963]

A.C.

510.

63.

Idem,

p.544.

*

Professor of

Conveyancing

&

Professional Practice of

Law,

University

of

Aberdeen.

TRINIDAD AND

TOBAGO:

A

CASE FOR

REFORM

IN

THE

LAW

OF

SUCCESSION

A.

Introduction

It is

rather

distressing,

if

not

tragic,

that

the

Republic

of

Trinidad

and

Tobago,

with

a

relatively

large legal

population

and a somewhat

litigious reputation,

has

earned

itself the

dubious distinction of

having

the most

archaic,

if

not

the most

inequi-

table, succession laws in the English-speaking Caribbean, second only to the

Bahamas.

Documents

Adverse Possession of Land in Scots and English Law