As a result of the increasing prevalence of land in Scotland being registered on the Land Register of Scotland, we are seeing a spike in enquiries relating to prescriptive rights of access; both in terms of the creation and the affects they have on the burdened title.
While prescriptive rights have not changed, the process of getting them onto the register has. Under the 1979 regime the Keeper's practice varied from accepting affidavit evidence, to requiring that such rights be backed up with a court declarator. Under the 2012 Act, the Keeper requires no evidence to be submitted, simply confirmation of the servitude's existence detailed on the application form (either for a disposition or as part of a voluntary registration).
There is a duty of care here which lies with the applicant and their solicitor . The solicitor has a duty to ensure that the application is correct therefore the existence of such a right must be evident.
On registration of the prescriptive right the Keeper will notify the burdened proprietor if the burdened property is land registered and the owner is easy to identify . The validity of prescriptive rights is not affected by registration, however, where prescriptive rights exist and there is a failure to include on an application, this does result in an inaccuracy in the register.
What are prescriptive rights?
Prescriptive rights are established through 20 years of open, peaceable use, without judicial interruption. Evidence of such use should be obtained by a solicitor and stored. An affidavit is the accepted level of evidence required. The Keeper does not require sight of these affidavits and indeed prefers them not to be included in an application for registration due to issues relating to GDPR.
Obtaining affidavits evidencing a right for a 20-year period can be challenging, especially if the property is owned by an organisation with a high turnover of employees or relates to a property that has been transacted on various times during the past 20 years. In this situation various affidavits may be required from different individuals to make up that 20 years and this can sometimes be a project in and of itself. Where a property is missing a vital access and the 20 years is approaching, it would be recommended that a client start to "bank" evidence of the right to be established.
Getting them on the register
The process of getting prescriptive rights onto the register is relatively easy. Once sufficient evidence is obtained, all the Keeper requires is confirmation in the application that the property benefits from an existing prescriptive right and if the route requires to be detailed on the cadastral map, then a register compliant plan.
Cost of inaccuracy in the register
The problem comes when a prescriptive right is either omitted from the application or where the prescriptive right is established during a time in which the property is not transacted on. Where there is a prescriptive right in situ and the land register does not reflect that right, this is an inaccuracy in the register.
While the right exists whether the land register reflects that right or not, there are certain situations which are beneficial to have that prescriptive right reflected on your client's land registered title, for instance, where the right is being disputed or where the property is being sold.
The Keeper's policy on rectifying titles to include prescriptive rights currently requires a court declarator to do so. This could cost your client upwards of £15,000 if the action is defended. The reasoning behind this being that a rectification request is not subject to the same duty of care as an application and the duty of care will lie with the Keeper. Therefore it is vitally important to consider prescriptive rights as part of the registration process.
Get in touch - we're here to help
If you require any assistance in relation to prescriptive rights, please get in touch with a member of our team.