Prescription in Scots law allows the creation or extinction of personal and real rights. There are two forms of prescription:
Prescription is different from limitation, which prevents the raising of court proceedings or litigation in relation to civil law matters in Scottish courts, primarily affecting personal injury claims arising from delict as these are exempt from prescription. The terms prescription and limitation are used in other jurisdictions to describe similar rules, mainly due to shared Roman law and Civil law heritage.
The law of prescription, although a long-standing feature of Scots property law, has been the subject of modern reform, primarily following on from reports on the law by the Scottish Law Commission (SLC). The SLC's main reports on prescription, with some of the recommendations of these reports adopted and introduced into statute, are:
Despite these reforms, the primary source of law regulating prescription is still the (c. 52). The 1973 act was last subject to major reform under the Prescription (Scotland) Act 2018, which followed on from the SLC's 2017 Report.
Positive prescription allows the creation of real rights through the passage of time. It was first introduced into Scots law by the (c. 4 (S)) and the (c. 9 (S)). However, it came into greater usage following the (c. 12 (S)), an act of the Parliament of Scotland:
While the wording of the act indicates that positive prescription was introduced to serve as a method of rectifying situations where the lieges (ie: the King of Scot's subjects) had lost important documents proving their ownership of held property, commentators such as Wightman argue that the introduction of positive prescription was actually a "means to legitimise the appropriation of land which had never been granted to the owner in the first place." and the Prescription Act 1617 allowed holders of land to become owner through the passage of 40 years possession. This primarily affected lands owned by the Church of Scotland and its officials, following the Reformation in Scotland.
Today, the usage of positive prescription is strictly limited in application to specific claims, as explained below.
The real right of ownership in Scots law can be created as an original mode of acquisition of corporeal heritable property (ie: it is not derivative acquisition, where ownership is acquired from another upon a voluntary or involuntary transfer). Positive prescription of ownership arises where land has been possessed openly, peaceably and without any judicial interruption for ten years and possession followed the registration/recording of a ex facie valid deed in the Land Register/General Register of Sasines. The registration process that commences the running of the positive prescriptive period is known as a under the Land Registration (Scotland) Act 2012.
Servitudes, similar to easements in other jurisdictions, are capable of creation by positive prescription. The requirements are:
After the 20 year prescriptive period concludes, the existence of the servitude is beyond legal challenge. However, while the servitude may validly exist under Scots law, still may not be appear on the Land Register, as acquisition by prescription is one of the main exemptions from the requirements of registration of real rights.
Public rights of way are capable of creation by prescription under the Prescription and Limitation (Scotland) Act 1973. The requirements are:
After the 20 year prescriptive period concludes, the existence of the public right of way is beyond legal challenge. Similarly to prescriptive servitudes, a public right of way may not be denoted in the Land Register but still validly exist. ScotWays, the Scottish Rights of Way Access Society, maintains a public register of rights of way, the National Catalogue of Rights of Way, in order to raise awareness of the existence of public rights of way in Scotland.
Negative prescription allows for the extinction of obligations and rights (both real and personal). This is because Scots law adopts the Roman law principle that vigilantibus non dormientibus jura subveniunt (). The Scottish Law Commission discuss the important aspects of negative prescription: <blockquote>"Negative prescription plays an essential part in balancing individual interests on the one hand and serving the public interest on the other. Justice between the parties to litigation means that after a certain lapse of time it is actually fairer to deprive a pursuer of a right than to allow it to trouble a defender. That is connected with concerns about stale or missing evidence and the difficulties facing a court in trying to administer justice in those circumstances. There is another dimension too: there is more to prescription than justice between the parties to a particular case. There is a wider public interest in having litigation initiated promptly if it is to be initiated at all. That is conducive to legal certainty. Even if in an individual case prescription may seem to involve hardship, as long as the law of prescription strikes a fair balance overall, it serves the wider interests of fairness, justice and certainty.
It is for the legislature to decide what the appropriate time-limits should be, and what should be the exceptions or qualifications to them. A well moderated law of prescription will serve the public interest by promoting legal certainty and the efficient use of resources. In this way it can make a valuable contribution to a strong sustainable economy"</blockquote>
Short prescription occurs where rights and obligations have a prescriptive period of five years. The Prescription and Limitation (Scotland) Act 1973 provides that monetary obligations (ie: the legal obligation to pay a sum of money to another under contract, delict or unjustified enrichment) are subject to a five-year prescriptive period. This includes:
Therefore, if any of the above obligations fail to be enforced within five years of its existence, the obligation prescribes and it becomes unenforceable. However, the prescriptive period 'clock' does not take into account any period in which the debtor of the obligation (i.e. the person obliged to make payment) has acted fraudulently, or his words or conduct induces the creditor to make an error, to prevent enforcement. However, while most monetary obligations are covered by the five year prescriptive period, the following obligations are specifically exempt from the 5-year prescriptive period:
Any obligation, including those covered or exempted by short-prescription, will prescribe after 20 years, by the passage of the long prescriptive period. This includes real rights which have not been exercised for over 20 years bar those immprescriptible. The passage of 20 years is considered the long-stop date for all obligations and real rights bar those specified as imprescriptible or relating to personal injury.
Certain rights and obligations do not prescribe, either by short or long negative prescription:
<blockquote>"property extra commercium comprises various categories of things which cannot be reduced into private ownership, either because of their nature, or because of some relevant rule of law. Particular examples are court records or other public documents which are held by whoever may have custody of them for the benefit of the community at large and not for the individual possessor. Where such articles are found in the possession of someone other than the proper custodian, it has been held that the latter's right to recover them does not prescribe: the right of recovery persists, however long may be the period of time during which they have been outside the legal custodian's control."</blockquote>
Various ambiguities of the Prescription and Limitation (Scotland) Act 1973 were reformed through the passage off the Prescription (Scotland) Act 2018 (asp 15).
The amendments now require that the creditor requires that:
The amendments also introduce standstill requirements:
There were delays to the implementation of the law due to difficulty in the drafting of the transitional provisions as the law replaces the existing legislation. In 2022, the implementation process started with certain sections of the law being commenced. The remaining provisions are planned for a multi-year transition.