Unilateral permission and prescriptive acquisition: a Scottish perspective.

Anderson, Craig

Abstract

It is common for a legal system to allow a person, in certain circumstances, to gain ownership of land by possessing it for a period of time. This is certainly true of both Scotland and England, although what is precisely required for possession to be established may differ on particular points between the two. One point on which the two may differ is the effect of a unilateral permission to occupy that is given to someone currently occupying the land without any right to be there. This point has most recently been considered from the point of view of English law in Smith v Molyneaux [2016] UKPC 35, [2017] 1 P & CR 7. In this paper, that case and the issues it raises are considered from the point of view of Scots law. It is found that this point raises more general questions about the nature of the mental element of possession, the state of mind with which one must occupy the property in order to be considered a possessor.

Citation

ANDERSON, C. 2020. Unilateral permission and prescriptive acquisition: a Scottish perspective. Legal studies [online], 40(3), pages 477-493. Available from: https://doi.org/10.1017/lst.2020.3

• Journal Article Type: Article
• Acceptance Date: Jan 13, 2020
• Online Publication Date: Jun 11, 2020
• Publication Date: Sep 30, 2020
• Deposit Date: Jan 14, 2020
• Publicly Available Date: Jan 14, 2020
• Journal: Legal studies
• Print ISSN: 0261-3875
• Electronic ISSN: 1748-121X
• Publisher: Cambridge University Press (CUP)
• Peer Reviewed: Peer Reviewed
• Volume: 40
• Issue: 3
• Pages: 477-493
• DOI: https://doi.org/10.1017/lst.2020.3
• Keywords: Property law; Possession; Unilateral permission; Prescriptive acquisition
• Public URL: https://rgu-repository.worktribe.com/output/828606