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