Prescription and Title to Moveable Property

Overview

The Report on Prescription and Title to Moveable Property was published by the Scottish Law Commission (the Commission) following a Discussion Paper of the same title.  

The Report on Prescription and Title to Moveable Property (Scot Law Com, No. 228, 2012) was published by the Scottish Law Commission (the Commission) following a Discussion Paper of the same title (Scot Law Com DP No. 144, 2010). It includes a proposed draft Bill which is attached to this consultation as Annex A.

This Bill was drafted by the Scottish Law Commission rather than by the Scottish Government. Government Bills introduced into the Scottish Parliament are generally drafted by the Scottish Government’s Parliamentary Counsel Office. Therefore, the draft Bill is subject to further revision by Parliamentary Counsel on behalf of the Scottish Government before being introduced into the Parliament. The introduction of any Bill, and the precise contents of it, depends on the outcome of this consultation. Any Bill is for the next session of the Scottish Parliament.

The draft Bill has two main provisions. The first of these would introduce a general rule of positive prescription for corporeal moveable property. Under this rule, a person would gain ownership of any such property which had been in that person’s possession for 20 years, dependent on certain conditions being met, in particular the person being in good faith and lacking negligence. Thus, thieves and looters would not be able to become owners.

The second provision would allow the holders of corporeal moveable property deposited with or lent to them to become owner of that property if the owner (or the owner’s successor) has not been in contact for 50 years. This is aimed primarily at museums and other cultural institutions to let them deal with property which they hold for an owner who cannot be traced.

The draft Bill has a number of other provisions. Section 3 provides for the ownership of corporeal moveable property to be acquired by the Crown if no person possesses the property during a continuous period of 60 years. The draft Bill also makes clear that the Crown may disclaim ownership of the property.

The draft Bill also:
• sets out how to calculate the 20, 50 and 60 year periods;
• abolishes the existing rule of negative prescription that ownership of corporeal moveable property is lost if ownership is not asserted for 20 years;
• abolishes any existing common law rule for the acquisition of corporeal moveable property by positive prescription;
• provides that when corporeal moveable property is abandoned it becomes ownerless, and;
• provides that it will come into force three years after Royal Assent.

What happens next

Following the closing date, all responses will be analysed and considered.  The analysis of responses will be published.

Comments and complaints:

If you have any comments about how this consultation exercise has been conducted, please send them to Catherine Devlin: catherine.devlin@scotland.gsi.gov.uk or 0131 244 4213.