Questions
Q1 Should a period of positive prescription for corporeal moveables be
introduced? Please give reasons.
Yes
Comments
We are strongly in favour of the amendment of the law to introduce a period of
positive prescription for corporeal moveables, and we wholeheartedly welcome the
Government’s willingness to engage with this matter. The substance of the law
relating to prescription of ownership of moveables is currently unclear and debated
among lawyers. We hope that Parliament will act to remove that uncertainty, and
secure existing rights of ownership in moveables that might be open to challenge in
the courts.
As we see it provision for positive prescription will be beneficial in functioning
together with the existing common law presumption that the possessor of a
moveable thing is owner (the presumption). The presumption is an important
practical device which protects a possessor (A) on the basis that another party (B)
will only succeed in an action to recover possession if he/she can prove i/ ownership
and ii/ that his/her possession was lost on some basis inconsistent with transfer (see
Reid, Property, paras 130 and 148). In a recent research paper David Carey Miller
argued that the role of the presumption is more significant than is commonly
acknowledged (see “The Presumption Arising from Possession of Corporeal
Moveable Property: Questioning Received Wisdom” in Simpson, Styles, West and
Wilson (eds) Essays in Memory of Angelo Forte (forthcoming, Aberdeen University
Press).
The utility of the proposed introduction of a statutory rule of positive prescription is
twofold. First, it will simply serve to establish who owns a thing in many cases where
this has become unclear through long passage of time. No-one doubts this benefit.
Second, a rule of positive prescription will remove the uncertainty which exists at
present regarding the effect of negative prescription, in terms of s.8 of the
Prescription and Limitation (Scotland) Act 1973, applying in a given case. We
question whether the position of the law is stated correctly in para 2.02 of the
Consultation paper (July 2015) but acknowledge that to be a position subscribed to
by many other Scottish property law experts. To explain, Carey Miller argues that, in
the situation concerned, the possessor who successfully invokes s.8 against a
claimant to ownership is protected by the presumption. Any assertion of ownership
by the Crown would be unsuccessful because the Crown would arguably not be able
to establish the two required elements to rebut the presumption. Yet even though we
subscribe to this position (see also Carey Miller’s argument in “Lawyer for All Time”,
Burrows, Johnston and Zimmermann (eds) Judge and Jurist: Essays in Memory of
Lord Rodger of Earlsferry (2013) 389-390) we fully agree that the proposed
introduction of positive prescription would remove the dubiety which follows from two
different interpretations of the existing law.
In other words, introducing acquisitive prescription of moveables would resolve the
debate mentioned and bring certainty and clarity to this area of the law. The
proposed reform will be positive in leaving the presumption to protect a good faith
possessor of less than 20 years but clarifying the position of entitlement after that
period has passed.
It may be noted that the presumption and the proposed new law would be largely
consistent regarding stolen or looted property. The presumption is always rebuttable
by an owner who can show a loss of possession through theft or looting; the new law
will not give a right in circumstances of knowledge of the taint of theft or looting and
such knowledge may be inferred in the circumstances of a failure of due diligence
(Draft Bill s.1(1)(c) and s.1(2)(d)).
Q2 Is a 20 year period suitable for positive prescription for corporeal
moveables? Please give reasons.
Yes
Comments
At face value 20 years may seem long for moveable property but by far the greater
proportion of moveable things depreciate so rapidly that possible acquisition by
prescription is irrelevant. In practice any positive prescription law will be primarily
applicable to appreciating property. Given this inevitable focus a relatively long
period is appropriate because an owner should not be too readily deprived of
appreciating assets such as antiques or cultural property.
Q3 Are any further provisions on prescription needed in this proposed Bill
to reflect that objects might have been looted during the Nazi period or during
other periods in history when injustice occurred as a consequence of the rule
of law not being applied properly? If so what provisions are needed?
Yes
Comments
It may be preferable to strengthen the relevant provisions by the revision of the
wording of s.1(1)(c) and s.1(2)(d). It is always difficult to prove a negative, and the
current s.1(1)(c) and s.1(2)(d) might be read as requiring just that. It is said that A,
who believes he is owner of property, may only acquire ownership if “A has not been
negligent in having so believed throughout that period”. That might be read as
requiring A to prove that he had not been negligent in order to acquire ownership.
To avoid this problem the wording could be rephrased as follows:
s.1(1)(c) – A, who believes he is owner, may acquire ownership if “A cannot be
shown to have been negligent in having so believed throughout that period.”
The provision in s.1(2)(d) could be amended in a similar way – “S cannot be shown
to have been negligent in having so believed throughout that remainder.”
That would place the onus of proving negligence on one asserting that A has not
acquired ownership.
Q4 Should time outwith Scotland be counted toward the total time period
needed for positive prescription for corporeal moveable property? Please
explain your answer.
Yes
Comments
This is appropriate because the question of a period of possession abroad will only
arise in the circumstances of a Scottish court having jurisdiction. In that event, it
should not matter if part of the total period of possession involves a spell furth of
Scotland. There should not be any difference between the position of the possessor
of a watch who takes it with him on a 3-year foreign posting and that of the
possessor of a clock who leaves it in his Aberdeen residence during a similar period
of absence abroad.
Q5 Should the proposed 3 year transition period be used? Please give
reasons for your answer.
Yes
Comments
On the view of the operation of s.8 of the Prescription and Limitation (Scotland) Act
1973 referred to in the comment to Q1 above the issue is not a significant one
because the proposed reform is a matter of clarification rather than substantive
change. However, on the view subscribed to in the Consultation paper, there is a
need for a transition period and a 3-year one seems reasonable.
Q6a Should holders of lent or deposited property acquire ownership after 50
years?
Yes
Comments
This proposal is limited to the situation of property loaned or deposited. In the
circumstances of a dispute as to whether ownership had been acquired in terms of
the provision the claimant would necessarily have to establish the act of loan or
deposit more than 50 years previously. The provision would not apply where there is
no record or knowledge of the basis under which possession or custody was
obtained. Nor could the general 20 year prescription under s.1 apply unless the
circumstances were compatible with a belief of ownership by the holder
(s.1(1)(b)(i)&(ii)). Despite the provision’s apparent limited applicability it would
appear to serve a potential purpose where loan or deposit took place. In this regard it
is relevant that the presumption protecting possession (referred to in the comment to
Q1 above) would be rebuttable by an owner able to show that possession was
parted with on the basis of loan or deposit even if the act occurred more than 50
years previously.
Q6b Should there be a special rule here for cultural items and, if so, how
should “cultural items” be defined?
No
Comments
An important aim of this proposed provision is to contribute to the position of
museums and galleries in respect of unclaimed items loaned or deposited more than
50 years previously. The scope of the provision is limited; any special additional
limitation in respect of ‘cultural property’ would risk rendering the provision
meaningless in terms of the aim of assisting museums and galleries.
Q7 Do you believe that the protections – time period, expectation of
diligence in tracing owners etc. are sufficient? If not, what would you like to
see introduced?
Yes
Comments
Any further protection would also risk rendering the provision meaningless.
Q8 Should the proposals in the draft Bill on how a finder may acquire
abandoned property be enacted? Please give reasons for your answer.
No
Comments
There is no need to change the present law which works well in practice. The formal
vesting of previously owned but, at present, apparently ownerless things in the
Crown is no more than a device applied to serve policy interests in certain areas of
modern law. In principle waste formally vests in the Crown insofar as it is property.
But, of course, this is an irrelevant fact because the issue with waste is how it is dealt
with and this is a matter of national and local government policy and regulation.
The proposed change has implications for two areas: the position regarding
lost/abandoned property and that of finds of ‘treasure’ in the sense of things of
historic or archaeological significance. The ‘treasure’ aspect will be dealt with as a
response to Q10.
Regarding lost/abandoned property, ownership in the Crown effectively militates
against any tendency towards insidious ‘finders keepers’ thinking, an individualist
position contrary to the ethos of Scots law. The ‘public benefit’ priority of existing law
could be eroded by promoting the idea of ownerless property potentially open to
acquisition by taking. The message to the public should be a clear duty to report
finds. Arguably, that priority is served better by present law than it would be by the
proposed replacement of the quod nullius rule with an ‘ownerless’ property concept.
In any event, the proposal is at best cosmetic because the operation of the Civic
Government (Scotland) Act 1982 would continue under the proposed reform.
Q9 Do you have any comments on the Impact Assessments?
No
Q10 Do you have any other comments?
Comments
The general SLC position is to protect the public interest in the vesting of ‘treasure’ –
in the sense of things of historic or archaeological significance – in the Crown as,
effectively, the nation. That priority is a commendable one but it is open to question
whether what is proposed will maintain the existing position. It is doubtful whether
the proposed section 3 rule will protect the national interest in this regard as
effectively as the quod nullius rule does.
The proposed statutory rule seeks to protect this interest by making the Crown
owner on the basis of the elapse of a 60 year period in which “no person possesses
the property”. The interpretation of “possess” will be pivotal. Possession of premises
or property may be seen to include possession of things found. It would appear that
the proposed new rule may involve the Crown in litigation to prove acquisition
against a possessor holding out against that. There are no such risks under the
present law where the Crown’s entitlement, on behalf of the nation, is undisputed.
The only case of modern times (Lord Advocate v Aberdeen University and Budge,
1963 SC 533) was litigated because the treasure was found on Shetland and it was
contended, unsuccessfully, that the quod nullius rule did not apply.
On a final note, we strongly support the introduction of the proposed s.5 rule, that
any real right of ownership in corporeal moveable property should not be subject to
negative prescription.
Responses should be sent to arrive by 17:00 on 23 September 2015 to:
[email protected] or
Catherine Devlin
Civil Law and Legal System Division
Scottish Government
St Andrew’s House
Regent Road
Edinburgh
EH1 3DG
Please note that no late responses will be accepted.
Scottish Government
July 2015