Commentary on Sections Overview of sections 43 to 45: prescriptive claimants Section 43: Prescriptive claimants
118.Subsection (1) provides that for the purposes of becoming a prescriptive claimant, the disposition granted in favour of the prescriptive claimant can be treated as valid so that the conditions of registration in sections 23 and 26 can be met.
119.Subsection (2) clarifies that this section is applicable to a disposition that is not granted by the person with the title to the subjects being granted.
120.Subsection (3) provides the first limb of the requirements for a person to become a prescriptive claimant. The applicant must satisfy the Keeper that the land that is sought to be acquired has been possessed by the disponer or the prescriptive claimant for one year immediately preceding the date of application. The prescriptive claimant will require to submit relevant evidence to the Keeper to satisfy this requirement. Subsection (8) allows Scottish Ministers to substitute a different time period for that provided for in subsection (3).
121.Subsection (4) provides the second limb of the requirements. To make a valid application, the applicant must satisfy the Keeper that they have taken reasonable steps to trace the true owner of the land, or any party able to complete title as true owner, and that they have been notified. Where no-one appears to own the land, sub-paragraph (c) requires the applicant to notify the Crown, as it is the ultimate heir to land in Scotland. In addition, abandoned property and the assets of a dissolved juristic person may also fall to the Crown as a matter of law. Subsection (7) contains a power to make further provision in Land Register rules regarding notification to various parties. This will allow the Land Register rules to make further provision with regards to the detail of the notification, how it is to be done and the information it should contain.
122.Subsection (5) is relevant to a title that has been provisionally registered in favour of a prescriptive claimant. It clarifies that subsequent deeds granted by a prescriptive claimant (such as a standard security) or against a prescriptive claimant (such as a charging order) are to be treated as valid despite the fact the prescriptive claimant's title remains provisional. The entries relating to any such deeds are also to be marked provisional in terms of section 44(1).
123.Subsection (6) sets out that in subsection (5) a prescriptive claimant is (i) a person whose application has been accepted under section 42(1), (ii) a person whose title has been marked as provisional under section 81(3)(a)(i) as a consequence of the Keeper becoming aware of a manifest inaccuracy which cannot be rectified due to the possibility prescription is running to cure it and (iii) any person in right of person (i) or (ii).