Can you give me some legal information on how Prescriptive Rights works in Scotland?

Question

I and my neighbours have maintained a piece of 'green' land for 37 years (at our own cost) believing it to belong to us. A garage adjoining this piece of land has it 'red lined' on its title deeds (there is some doubt over whether they actually do own it - I have a letter from the Registers for Scotland admitting that a mistake has been made by them but that they cannot rectify it without the garage owners consent. Also, one of my neighbours has a piece of this land on his title deeds. I also have a letter from Glasgow Ciry Council stating that we own it (they had wanted to use it to build a cycle path and when we objected, they gave up and apologised as we own the land). The garage owner is now going to build a block of flats on his site and include this piece of land - can he just do this? What do I need to do to try and stop this happening - time is of the essence as he has been granted planning permission.

Any help will be gratefully received.

Answer 1

Go get a lawyer.

Legal Status
The Scots have a quite distinct legal system within the United Kingdom. Historically, in the Kingdom of Scotland, the Lord Lyon King of Arms, as the Sovereign’s Minister in matters armorial is at once Herald and Judge.

Up until 28th November 2004 a barony was an estate of land held directly of the Crown, or the Prince and Great Steward of Scotland, with a Crown Charter erecting the land into a Barony. It was an essential element of a barony title that there existed a Crown Charter of the barony. Crown Charters are recorded in the Register of the Great Seal of Scotland. Often the original Charter was later lost but usually an Official Extract can be obtained from the Register of the Great Seal. An Official Extract has the same legal status as the original Charter. Up until 1874 each new baron was confirmed in his barony by the Crown with a Charter of Confirmation.

In the 17th century two important statutes were passed. The first set up a General Register of Sasines, and said that all landowning should be registered in it, and that an entry in the Sasine Register would give prescriptive right, after so many years, to the "caput", or the essence of the barony. Accordingly, the individual - irrespective of sex, who owned the said piece of land containing the caput was the Baron or Baroness. The second statute setup the Lyon Register in 1672 and said that no arms were to be borne in Scotland unless validly entered in Lyon Register. This removed uncertainty about armorial rights.

From the Treaty of Union of 1707 - until 1999 - a unified Parliament, at Westminster, was responsible for passing legislation affecting private law both north and south of the Scottish border. In 1999 the devolved Scottish Parliament was established, and Private law measures can now be passed in Edinburgh. Using a prescriptive feudal grant allowed developers to impose perpetual conditions affecting the land. The courts became willing to accept the validity of such obligations, which became known as real burdens. In practical and commercial terms, these real burdens were like English leasehold tenure.

The first Scottish Executive was committed to abolishing the anachronism of the feudal system.On 28th November 2004 Scotland's feudal system came to an end. On that day the Abolition of Feudal Tenure etc. (Scotland) Act 2000 came into full force and effect. Section 63(1) of the Act, preserves the dignity of Baron and the heraldic rights of barons. The abolition of the feudal system, then, has had no adverse effect on barony titles themselves, but the titles are now feudal heritage, that are, incorporeal hereditament, and not attached to the land.

The transfer of the title must be agreed by the Lord Lyon - the Crown’s officer responsible for Scottish noble and peerage titles, and heraldry. The beneficiary must be armigerous, that is, entitled to arms - or be prepared to petition the Lord Lyon for a grant of arms. The prospective purchaser of a Scottish barony should seek specialist Scots legal advice.

Answer 2

The granting of planning permission is quite separate to any other issue. So if you do own the land, then he simply cannot build on it. If you do not own it, but object to building you can or should have the opportunity to object by him.

The bottomline, is that if there is a mistake which has cause you loss, as in england & wales, you should by law claim an indemnity in respect of the loss because of their mistake.

To stop anything happening, you should get a lawyer of some such to get an injunction to stop any build for the mean time until this issue has been resolved one way. But there may be considerable time and expense involved so you have to sit down and think about.

lastly even if he has planning permission, you can always make representations to have it revoked as the local council does have this power and can use it if necessary.

You can protect your easement by registering a unilateral notice if it applies in scotland, but you will only have an easement if the servient tenement benefits your land (the dominant tenement),
if there is no benefit of this land to yours then your unlikely to succeed by prescription or any other means.