Prescription and Limitation (Scotland) Act 1973

Part I — Prescription

Positive prescription

Interests in land: general

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• (1) If land has been possessed by any person, or by any person and his successors, for a continuous period of ten years openly, peaceably and without any judicial interruption and the possession was founded on, and followed—

• (a) the recording of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in—

• (i) that land; or

• (ii) land of a description habile to include that land; or

• (b) the registration of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in—

• (i) that land; or

• (ii) land of a description habile to include that land,

then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge.

• (2) Subsection (1) above shall not apply where—

• (a) possession was founded on the recording of a deed which is invalid ex facie or was forged; or

• (b) possession was founded on registration in the Land Register of Scotland proceeding on a forged deed and the person appearing from the Register to have the real right in question was aware of the forgery at the time of registration in his favour.

• (3) In subsection (1) above, the reference to a real right is to a real right which is registrable in the Land Register of Scotland or a deed relating to which can competently be recorded; but this section does not apply to real burdens,servitudes or public rights of way.

• (4) In the computation of a prescriptive period for the purposes of this section in a case where the deed in question is a decree of adjudication for debt, any period before the expiry of the legal shall be disregarded.

• (5) Where, in any question involving any foreshore or any salmon fishings, this section is pled against the Crown as owner of the regalia, subsection (1) above shall have effect as if for the words “ten years” there were substituted “twenty years”.

• (6) This section is without prejudice to section 2 of this Act.

Interests in land: special cases

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• (1) If—

• (a) land has been possessed by any person, or by any person and his successors, for a continuous period of twenty years openly, peaceably and without any judicial interruption; and

• (b) the possession was founded on, and followed the execution of, a deed (whether or not registered or recorded ) which is sufficient in respect of its terms to constitute in favour of that person a real right in that land, or in land of a description habile to include that land, then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge except on the ground that the deed is invalid ex facie or was forged.

• (2) This section applies—

• (a) to the real right of the lessee under a lease; and

• (b) to any other real right in land, being a real right of a kind which, under the law in force immediately before the commencement of this Part of this Act, was sufficient to form a foundation for positive prescription without the deed constituting the title to the real right having beenregistered or recorded,

but does not apply to servitudes or public rights of way.

• (3) This section is without prejudice to section 1 of this Act or to section 20B or 20C of the Registration of Leases (Scotland) Act 1857 (c.26).

Positive servitudes and public rights of way

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• (1) If in the case of a positive servitude over land—

• (a) the servitude has been possessed for a continuous period of twenty years openly, peaceably and without any judicial interruption, and

• (b) the possession was founded on, and followed the execution of, a deed which is sufficient in respect of its terms (whether expressly or by implication) to constitute the servitude,

then, as from the expiration of the said period, the validity of the servitude as so constituted shall be exempt from challenge except on the ground that the deed is invalidex facieor was forged.

• (2) If a positive servitude over land has been possessed 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 servitude as so possessed shall be exempt from challenge.

• (3) 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.

• (4) References in subsections (1) and (2) of this section to possession of a servitude are references to possession of the servitude by any person in possession of the relative dominant tenement.

• (5) This section is without prejudice to the operation of section 7 of this Act.

Judicial interruption of periods of possession for purposes of sections 1, 2 and 3

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• (1) In sections 1, 2 and 3 of this Act references to a judicial interruption, in relation to possession, are references to the making in appropriate proceedings, by any person having a proper interest to do so, of a claim which challenges the possession in question.

• (2) In this section “appropriate proceedings” means—

• (a) any proceedings in a court of competent jurisdiction in Scotland or elsewhere, except proceedings in the Court of Session initiated by a summons which is not subsequently called;

• (b) any arbitration in Scotland in respect of which an arbitrator (or panel of arbitrators) has been appointed;

• (c) any arbitration in a country other than Scotland, being an arbitration an award in which would be enforceable in Scotland.

• (3) The date of a judicial interruption shall be taken to be—

• (a) where the claim has been made in an arbitration , the date when the arbitration begins;

• (b) in any other case, the date when the claim was made.

• (4) An arbitration begins for the purposes of this section—

• (a) when the parties to the arbitration agree that it begins, or

• (b) in the absence of such agreement, in accordance with rule 1 of the Scottish Arbitration Rules (see section 7 of, and schedule 1 to, the Arbitration (Scotland) Act 2010 (asp 1)).

Further provisions supplementary to sections 1, 2 and 3

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• (1) In sections 1, 2 and 3 of this Act “deed” includes a judicial decree; and for the purposes of the said sections any of the following, namely an instrument of sasine, a notarial instrument and a notice of right in land shall be treated as a deed sufficient to constitute that right in favour of that person.

• (1A) Any reference in those sections to a real right's being exempt from challenge as from the expiration of some continuous period is to be construed, if the real right of the possessor was void immediately before that expiration, as including reference to acquisition of the real right by the possessor.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Negative Prescription

Extension of limitation periods for 1987 Act actions: mediation

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• (1) If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of five years—

• (a) without any relevant claim having been made in relation to the obligation, and

• (b) without the subsistence of the obligation having been relevantly acknowledged,

then as from the expiration of that period the obligation shall be extinguished:

Provided that in its application to an obligation under a bill of exchange or a promissory note this subsection shall have effect as if paragraph (b) thereof were omitted.

• (2) Schedule 1 to this Act shall have effect for defining the obligations to which this section applies.

• (3) In subsection (1) above the reference to the appropriate date, in relation to an obligation of any kind specified in Schedule 2 to this Act is a reference to the date specified in that Schedule in relation to obligations of that kind, and in relation to an obligation of any other kind is a reference to the date when the obligation became enforceable.

• (4) In the computation of a prescriptive period in relation to any obligation for the purposes of this section—

• (a) any period during which by reason of—

• (i) fraud on the part of the debtor or any person acting on his behalf, or

• (ii) error induced by words or conduct of the debtor or any person acting on his behalf,

the creditor failed to make a relevant claim in relation to the obligation, and

• (b) any period during which the original creditor (while he is the creditor) was under legal disability,

shall not be reckoned as, or as part of, the prescriptive period:

Provided that any period such as is mentioned in paragraph (a) of this subsection shall not include any time occurring after the creditor could with reasonable diligence have discovered the fraud or error, as the case may be, referred to in that paragraph.

• (4A) For the purposes of subsection (4)(a), it does not matter whether the debtor, or the person acting on the debtor's behalf, intended the fraud or the words or conduct to cause the creditor to fail to make a relevant claim.

• (5) Any period such as is mentioned in paragraph (a) or (b) of subsection (4) of this section shall not be regarded as separating the time immediately before it from the time immediately after it.

Extinction of obligations by prescriptive periods of twenty years

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• (1) An obligation to which this section applies is extinguished on the expiry of the continuous period of 20 years after the date on which the obligation became enforceable.

• (2) This section applies to an obligation of any kind (including an obligation to which section 6 of this Act applies), not being an obligation to which section 22A of this Act applies or an obligation specified in Schedule 3 to this Act as an imprescriptible obligation or an obligation to make reparation in respect of personal injuries within the meaning of Part II of this Act or in respect of the death of any person as a result of such injuries or any obligation to pay damages arising from liability under section 148 or section 149 of the Building Safety Act 2022 (see section 18ZD of this Act).

• (3) Subsection (4) applies if—

• (a) a relevant claim is made in relation to an obligation to which this section applies,

• (b) the claim is made before the time at which the prescriptive period mentioned in subsection (1) would, but for subsection (4), expire, and

• (c) at that time—

• (i) the claim has not been finally disposed of, and

• (ii) the proceedings in which the claim is made have not otherwise come to an end.

• (4) The prescriptive period is extended so that it expires—

• (a) when the claim is finally disposed of, or

• (b) when the proceedings in which the claim is made come to an end (where the proceedings come to an end without the claim having been finally disposed of).

• (5) In subsections (3) and (4), the references to proceedings in which a relevant claim is made include references to any other process in or by which a relevant claim is made.

Extinction of other rights relating to property by prescriptive periods of twenty years

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• (1) If, after the date when any right to which this section applies has become exercisable or enforceable, the right has subsisted for a continuous period of twenty years unexercised or unenforced ... then as from the expiration of that period the right shall be extinguished.

• (1A) Subsection (1B) applies if—

• (a) a relevant claim is made in relation to a right to which this section applies,

• (b) the claim is made before the time at which the prescriptive period mentioned in subsection (1) would, but for subsection (1B), expire, and

• (c) at that time—

• (i) the claim has not been finally disposed of, and

• (ii) the proceedings in which the claim is made have not otherwise come to an end.

• (1B) The prescriptive period is extended so that it expires—

• (a) when the claim is finally disposed of, or

• (b) when the proceedings in which the claim is made come to an end (where the proceedings come to an end without the claim having been finally disposed of).

• (1C) If the relevant claim (as finally disposed of) is successful, the right is to be treated for the purposes of subsection (1) as having been exercised or enforced by the creditor at the time when the claim was made.

• (2) This section applies to any right relating to property, whether heritable or moveable, not being a right specified in Schedule 3 to this Act as an imprescriptible right or falling within section 6 or 7 of this Act as being a right correlative to an obligation to which either of those sections applies.

Definition of " relevant claim " for purposes of sections 6, 7 and 8

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• (1) In sections 6 7 and 8A of this Act the expression “relevant claim”, in relation to an obligation, means a claim made by or on behalf of the creditor for implement or part-implement of the obligation, being a claim made—

• (a) in appropriate proceedings, ...

• (b) by the presentation of, or the concurring in, a petition for sequestration or by the submission of a claim under section 46 or 122 of the Bankruptcy (Scotland) Act 2016 . . . ; ...

• (c) by a creditor to the trustee acting under a trust deed as defined in section 228(1) of the Bankruptcy (Scotland) Act 2016; ...

• (d) by the presentation of, or the concurring in, a petition for the winding up of a company or by the submission of a claim in a liquidation in accordance with rules made under section 411 of the Insolvency Act 1986;

• (e) by the appointment, or the submission of an application for the appointment, of a receiver under section 51 of the Insolvency Act 1986;

• (f) by the submission of an application for an administration order under paragraph 12 of Schedule B1 of the Insolvency Act 1986;

• (g) by the appointment of an administrator under paragraph 14 of Schedule B1 of the Insolvency Act 1986; or

• (h) by the submission of a claim in an administration under Part 2, or a receivership under Part 3, of the Insolvency Act 1986 in accordance with rules made under section 411 of that Act;

and for the purposes of the said sections 6 7 and 8A the execution by or on behalf of the creditor in an obligation of any form of diligence directed to the enforcement of the obligation shall be deemed to be a relevant claim in relation to the obligation.

• (2) In section 8 of this Act the expression “relevant claim”, in relation to a right, means a claim made in appropriate proceedings by or on behalf of the creditor to establish the right or to contest any claim to a right inconsistent therewith.

• (2A) Where a relevant claim is made in relation to an obligation to which section 6 or 8A applies, the claim is to be treated for the purposes of that section as being made continuously until the claim is finally disposed of.

• (3) Where a claim which, in accordance with the foregoing provisions of this section, is a relevant claim for the purposes of section 6, 7 8 or 8A of this Act is made in an arbitration, the date when the arbitration begins shall be taken for those purposes to be the date of the making of the claim.

• (4) In this section the expression “appropriate proceedings” and, in relation to an arbitration, the expression “the date when the arbitration begins” have the same meanings as in section 4 of this Act.

Relevant acknowledgment for purposes of sections 6 and 7

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• (1) The subsistence of an obligation shall be regarded for the purposes of sections 6 and 8A of this Act as having been relevantly acknowledged if, and only if, either of the following conditions is satisfied, namely—

• (a) that there has been such performance by or on behalf of the debtor towards implement of the obligation as clearly indicates that the obligation still subsists;

• (b) that there has been made by or on behalf of the debtor to the creditor or his agent an unequivocal written admission clearly acknowledging that the obligation still subsists.

• (2) Subject to subsection (3) below, where two or more persons are bound jointly by an obligation so that each is liable for the whole, and the subsistence of the obligation has been relevantly acknowledged by or on behalf of one of those persons then—

• (a) if the acknowledgment is made in the manner specified in paragraph (a) of the foregoing subsection it shall have effect for the purposes of the said sections 6 and 8A as respects the liability of each of those persons, and

• (b) if it is made in the manner specified in paragraph (b) of that subsection it shall have effect for those purposes only as respects the liability of the person who makes it.

• (3) Where the subsistence of an obligation affecting a trust estate has been relevantly acknowledged by or on behalf of one of two or more co-trustees in the manner specified in paragraph (a) or (b) of subsection (1) of this section, the acknowledgment shall have effect for the purposes of the said sections 6 and 8A as respects the liability of the trust estate and any liability of each of the trustees.

• (4) In this section references to performance in relation to an obligation include, where the nature of the obligation so requires, references to refraining from doing something and to permitting or suffering something to be done or maintained.

Obligations to make reparation

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• (1) Subject to subsections (2) and (3) below; any obligation to pay damages (whatever the source of the obligation) for loss, injury or damage caused by an act or omission shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred.

• (2) Where as a result of a continuing act or omission loss, injury or damage has occurred before the cessation of the act or omission the loss, injury or damage shall be deemed for the purposes of subsection (1) above to have occurred on the date when the act or omission ceased.