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Unilateral permission and prescriptive acquisition: a Scottish perspective.

Anderson, Craig

Authors

Craig Anderson



Abstract

Most legal systems, and certainly Scotland and England, have rules allowing a person who has possessed land without challenge, for an extended period of time, to acquire an unchallengeable right in the property. Suppose that I am in possession of someone else's land, occupying it as if it is my own property. There are several things that may happen. Either the owner will become aware of the fact of my possession, or will not. If the owner becomes aware, he or she may or may not attempt to remove me from the land, either by going to court or by taking some more direct action. Alternatively, the owner may ignore my presence, or may attempt to regularise my occupation, for example by agreeing with me a lease of the property. Another possibility is that the owner unilaterally grants me permission to continue in occupation of the land, until such time as the owner needs it. There are comprehensible reasons why this may happen. Perhaps the owner intends to develop the land, but the plans for development are not yet finalised, and so the owner is happy to allow me to continue on the land in the meantime. Alternatively, there may be some other reason. The purpose of this paper is to consider the effect of such unilateral permission on acquisition of ownership by a period of possession. For consistency's sake, although terminology for this varies between different jurisdictions, the term ‘prescriptive acquisition’ will be used as a general term for acquisition of this kind. The effect of unilateral permission on prescriptive acquisition has received some attention recently in England. In this paper, we will consider the position in both England and Scotland, in the hope that it may be possible for each to learn from the other. At the very least, it is hoped that some external perspective on the treatment of these issues in each system may be productive of further discussion. In the course of the consideration of these issues, it will be suggested that the key question is whether parties’ intentions are to be viewed objectively – based on what they say and do – or subjectively – based on their actual understandings.

Journal Article Type Article
Journal Legal studies
Print ISSN 0261-3875
Electronic ISSN 1748-121X
Publisher Cambridge University Press (CUP)
Peer Reviewed Peer Reviewed
Institution Citation ANDERSON, C. [2020]. Unilateral permission and prescriptive acquisition: a Scottish perspective. Legal studies [online], (accepted).
Keywords Land; Possession; English law; Property law; Scots law

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