Title out of nothing

What is a “s 43 prescriptive claimant”?

The 2012 Act does not use the phrase “a non domino”. Instead, an a non domino purchaser is referred to as a “prescriptive claimant”.

Does prescription under the 1973 Act still run on a non domino rights as before?

As under the 1979 Act, prescription can still run. The main difference between different types of right is still the period required for the relevant prescriptive possession, namely:
- 10 years for ownership;
- 20 years for a long lease;
- 20 years for a servitude;
- 20 years for a public right of way;
- 20 years for an interest in allodial land;
- 20 years for an interest in foreshore or salmon fishings where prescription is being claimed against the Crown’s regalia right.

Prescriptive possession still means for a continuous period by the claimant (or the claimant and their predecessors), openly, peaceably and without judicial interruption.

Now, however:

(1) Prescription can run both on deeds registered in the Land Register, even if RoS has not excluded warranty, as well as sasine deeds.

(2) Prescription runs on the deed rather than what is shown on the title sheet. So, if a title sheet omits a purported servitude right but the underlying deed includes it, then in some cases prescription will later crystallise that right and render the register inaccurate.

What procedure is needed for a non domino deeds?

An a non domino disposition needs to be submitted using the new s 43 application procedure. There is no similar statutory procedure for other deeds such as leases, deeds of servitude and so on. An unwritten servitude can still be acquired by the usual prescriptive method.

In two scenarios, registration and prescription will still cure a non domino deeds which have not gone through the s 43 procedure:

(1) Inadvertent a non domino deeds, where parties do not reasonably know of the title defect when registering (taking into account normal title examination and the statutory duty of reasonable care). The defect being originally unknown, s 43 will not have been used. If the parties do know that a grant is a non domino, they must proceed through the s 43 procedure (if a disposition) or not register (if not a disposition).
(2) A s 43 claimant has registered “provisional” title and a deed (disposition or otherwise) is granted by or directed towards that person. If the application would be accepted were the prescriptive claimant’s title actually valid, then for the purposes of registration the onward deed is treated as “valid” without the s 43 procedure being used again. Such entries made in the Land Register for the onward deed will be marked provisional, and do not receive RoS’s warranty.

What is the s 43 procedure?

The basic steps are as follows:

(1) Identify that the interest is a non domino during normal title examination.

(2) Evidence one year’s possession openly, peaceably and without judicial interruption by the disponer, the applicant, or the disponer then applicant. This year must have passed before the application and does not count towards the 10 (or 20) years needed for 1973 Act prescription, which still needs to run after registration.

(3) Identify and notify relevant party using the statutory form (available on RoS’s online system). Notification must be sent by recorded delivery.

(4) Wait 60 days. An objection at this stage does not prevent a s 43 application being made, but increases the chance of objection when RoS re-notifies (see below).

(5) Prepare a disposition a non domino. Such disposition still has to be ex facie valid, e.g. it cannot be from A to A.

(6) Submit the disposition, application form and all supporting evidence to RoS. The form should confirm that the granter is not the last recorded owner and that this is a s 43 claim.

(7) RoS then examines the application.

(8) If the application is generally in order, the Keeper will then re-notify the same party notified by the applicant.

(9) The notified party has 60 days to object. If they object, RoS must reject the s 43 application: no reason for objection is needed and there is no appeal or counter-objection. If they do not respond or object, registration can proceed.

(10) Where registration proceeds, RoS marks the proprietorship entry for the prescriptive claimant’s title sheet as “provisional”.

(11) Prescription under the 1973 Act can then start to run on the registered disposition.

What evidence is required for the one year possession?

RoS will expect to see at least affidavit evidence from the applicant or disponer.

In addition to the usual sworn statement that the land has been possessed openly, peaceably and without judicial interruption for a particular duration, RoS wants affidavits to include where possible:

• details of the type of land, e.g. garden ground;
• details of the possession, e.g. that the land has been used as garden ground for a house, and that a shed has been constructed on it;
• a plan clearly identifying the land possessed, unless the whole of a registered title;
• details of who accesses, uses and maintains the land;
• the apparent age and nature of the boundary features surrounding the ground, e.g. stone walls, and who maintains these boundaries.

In most cases, affidavit evidence should also be obtained from neighbours, and the applicant will need to consider also submitting photographs, local authority or utility records and so on.

Who is the relevant party to be notified?

They are:

(a) the proprietor;

(b) any person who appears to be able to take steps to complete title as proprietor (e.g. a beneficiary under a will of a deceased proprietor); or

(c) the Crown, i.e. the Crown Estate Commissioners for regalia minora property (foreshore, seabed, salmon fishings etc), and the Queen’s & Lord Treasurer’s Remembrancer for bona vacantia and ultimus haeres.

The parties in (a), (b) and (c) above are not alternatives. Only if there is no proprietor or none can be identified should (b) be considered, and only if neither (a) nor (b) exist or can be identified should step (c) be used.

Even if the Crown or other party confirm on enquiry that they have no interest in the land, the statutory formal notification procedure must still be followed if a s 43 claim is to be pursued.

RoS will need to be satisfied that the correct person has been identified. Appropriate searches, copy deeds, death certificates, letters to last known addresses etc should be included with any s 43 application to evidence e.g. that the proprietor could not be found or has died.

In addition, RoS will want to see that the identified person can still actually be proprietor. Company searches will be sufficient for corporate bodies. For individuals, it can be more difficult to prove that the person is still alive. RoS may require electoral roll searches; local authority registers; evidence of contact with their last known solicitor; local newspaper advertisements and so on.

For instance, if the notified party is the proprietor under (a), evidence that they are alive and have title will need to be exhibited. If the notified party is the QLTR under (c), the steps taken to identify someone under both (a) and (b) must be shown.

Does a title sheet issued to a s 43 claimant carry RoS’s warranty?

Not while it is marked as “provisional”.

RoS can grant warranty once the marking is removed following the relevant prescriptive possession having been evidenced.

How can the “provisional” status be removed from the title sheet?

RoS will need to be satisfied that the relevant possession has occurred. RoS will take a similar view on what will be required for this as is taken to the separate one year’s possession requirement (see above). For simpler cases where the position on the ground appears clear, affidavit evidence from the claimant may be sufficient. Other cases may require neighbours’ affidavits or even court declarator. The likelihood of competing interests will form part of RoS’s judgment.

Is the s 43 procedure required for a first registration disposition if the parent sasine title is unclear as to its exact extent?

Granters, applicants and both solicitors have a duty to take reasonable care not to make the register wrong. There will always be cases that are grey. Solicitors’ judgment as to what a reasonable solicitor would do in the same circumstances will inform their own decision as to what to register. RoS relies on the statements and disclosures on the application form.

For example, competing sasine titles are not uncommon. A solicitor dealing with a sasine title will not normally check neighbours’ titles. Even if an apparent or potential competition does come to light, that in itself does not mean the neighbour has the better right, since prescriptive possession will be a factor. Unless the solicitor actually knows that the neighbour has the best right, the title can be reported on to the client and the land dealt with in the usual way without needing to go down the route of the s 43 procedure.

If on the other hand it was evident that the sasine title could not have included the land in question, a normal application would be inappropriate given the questions and certifications on the Land Register application form. The s 43 procedure would be needed instead.

What if part of the land being sold is in title and part is not?

Part of the application will be by normal procedure and part by the s 43 procedure. This can either be by a single disposition and single application form, or separate dispositions and forms for each part.

Is there any effect on existing a non domino titles where prescription is still running?

If a purchaser acquires title, the title (whether already registered or not) is founded on an a non domino deed, and prescription is still running, any onward deed is also a non domino. Thus an onward disposition of an a non domino sasine title where prescription has not run has to comply with the s 43 procedure.

Where a known a non domino disposition was registered in the Land Register under the 1979 Act, the Keeper’s indemnity will have been expressly excluded. If prescription has run, the parties can submit evidence of prescriptive possession and request removal of the exclusion. If no evidence is submitted at all and the registered title is being dealt with, it is likely that an exclusion of warranty will be added for the onward grant being registered.