Acquiring Ownership To Land By Possession: Is Possession Really Nine-tenths Of The Law?

• Published date: 24 November 2020
• Subject Matter: Real Estate and Construction, Real Estate
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Stephanie Hepburn

It is often said that possession is nine-tenths of the law - but is it? In this article, we will look at when it may be possible to acquire title to land through possession and dispel the myth that possession alone of any area of land for a period of 10 years acquires an unchallengeable title - the "finders-keepers" principle is indeed only nine-tenths of the law.

Ownerless property

How do you acquire a right of prescriptive possession to land when the true owner can't be found? It's possible for another person to grant you a right to an area of land even though they don't have title to it. This is known in Scots law as an a non domino disposition. Making an application to Registers of Scotland for acceptance of an a non domino disposition is known as a "prescriptive claimant application" and there are a number of steps which must be followed. The application presented needs to be right first time or else it will face rejection.

Possession for one year

The first requirement before Registers of Scotland will accept an a non domino application is that the grantee (i.e. the person an a non domino disposition is in favour of) must already have possessed the land for at least one year. The possession requirement is also fulfilled if the granter of the disposition has possessed, or a combination of possession by both. This one-year period is not to be confused with subsequent possession for 10 years to acquire the right, which we will touch upon below. This one-year period is more like an entry qualification.

Notification to the true owner

Secondly, the person who appears to be the true owner must be notified. The purpose behind notification is really to satisfy Registers of Scotland that you have taken steps to identify the true owner, and you have attempted to contact them - this ensures that purely speculative applications are not accepted. Notification will be made to the proprietor if you can identify someone. If there is no proprietor, or you can't identify them, then you should notify any person who appears to be able to take steps to complete title. This may be a successor where there has been a death, or if there is no such person, you must notify the Crown.

Keeper's notification

The Keeper of the Registers of Scotland also has to do their own notification - this is essentially to protect against any fraud. If someone objects, that is the end of the matter. The Keeper is not required to assess the basis of the objection and this is because the person...