Acquiring Rights Of Way By Prescription

In Scots law, it is possible to acquire certain rights to land - access, for instance - simply by the passage of time. This process is known as "prescription" and is outlined in the Prescription and Limitation (Scotland) Act 1973.

There are two forms of prescription: positive and negative. Negative prescription extinguishes certain rights after a period of time. Conversely, positive prescription stipulates that, where someone has possessed land "openly, peaceably and without judicial interruption" on the strength of a valid deed for a period of 10 years, they will obtain good title to it. In this way, prescription can make a bad title good. Positive prescription also applies to the creation of servitudes and public rights of way. But in these cases, there must have been use of a servitude or public right of way for a period of 20 years before positive prescription will apply.

Prescriptive servitudes and public rights of way received particular attention earlier in the year in the case of Mr and Mrs B v Mr and Mrs C [2018] SC FORF 27, which underlines the importance of the tests in the 1973 Act and supporting case law.

A right of way or a servitude?

Mr and Mrs B went to court to obtain a declarator that there was an established public right of way across the neighbouring woodland owned by their neighbours Mr and Mrs C, together with Mrs C's father. They claimed that they and others had used the right of way for many years for recreation.

The route of the claimed public right of way comprised a path running from the north to the south of the woodland. At either end of the path, access was taken by a gate. Mr and Mrs B argued that the path was a designated public right of way based on evidence, but Mr and Mrs C disputed this, claiming that permission had been given to Mr and Mrs B to use the path.

How to acquire a right of way

The 1973 Act says that:

"If a public right of way over land has been possessed by the public for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the right of way as so possessed shall be exempt from challenge."

There are five particular requirements that, in the past, the courts have indicated are necessary to establish a public right of way. Specifically, there must be:

(1) A public place at either end of the way;

(2) A continuous journey from end to end;

(3) A definite route;

(4) A right to continuous use; and

(5) Use...