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Published online by Cambridge University Press: 11 June 2020
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.
A version of this paper was delivered in the Property Law section of the Society of Legal Scholars conference held in September 2018 at Queen Mary University of London. Thanks are due to attendees of that section for very stimulating and useful comment and discussion. Errors, of course, remain the author's own.
2 The following leaves out of account common law prescription, which requires it to be shown that the right claimed has been enjoyed since 1189. The difficulties in achieving this are sufficiently obvious that it is no surprise to find common law prescription little resorted to in practice. See Harpum, C et al. Megarry and Wade: The Law of Real Property (London: Sweet & Maxwell, 8th edn, 2012) para 28–059Google Scholar.
3 For an account, see Megarry and Wade, above n 2, paras 28-062–28-065. If an outsider to the English system may say so, the lost modern grant doctrine is a most peculiar one. The lost modern grant may be entirely fictitious, and it is no objection that there was probably or definitely no such grant. The presumption can only be rebutted by showing that there was nobody who could lawfully have made the grant during the period in which it might have been made.
4 (1836) 111 ER 826 at 831, 4 Ad & E 369 and 383 Lord Denman CJ. See also Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229; Ward v Kirkland [1967] Ch 194; and discussion at Megarry and Wade, above n 2, paras 28-075–28-076.
5 [1969] 2 AC 19 at 25.
6 See eg Megarry and Wade, above n 2, para 4-007.
7 Limitation Act 1980, s 15.
8 Limitation Act 1980, s 17.
9 Land Registration Act 2002, s 97 and Sch 6.
10 [2016] UKPC 35, [2017] 1 P & CR 7.
11 Registered Land Act (BVI), s 135(1).
12 Limitation Act (BVI), s 6.
13 [2002] UKHL 30, [2003] 1 AC 419.
14 (1879) 5 Ex D 264.
15 (1879) 5 Ex D 264 at 273.
16 [1975] QB 94, [1974] 3 WLR 387.
17 (1988) 55 P & CR 337.
18 See below.
19 Above n 13. For previous intimations of this approach see eg Powell v McFarlane (1979) 38 P & CR 452; Buckinghamshire County Council v Moran [1990] Ch 623, [1989] 3 WLR 152; Ramnarace v Lutchman [2001] UKPC 25, [2001] 1 WLR 1651.
20 At para 32.
21 At para 45.
22 At para 46. Compare, though, the later case of Colin Dawson Windows Ltd v King's Lynn and West Norfolk BC [2005] EWCA Civ 9, [2005] 2 P&CR 19. Compare also the South African case Minister van Landbou v Sonnendecker 1979 (2) SA 944. The decision is in Afrikaans, but there is a short summary at CG van der Merwe, ‘Ownership’ (1979) Annual Survey of South African Law 222.
23 Radley-Gardner, O ‘Foisted permission and adverse possession’ (2017) 133 LQR 214 at 216Google Scholar; Hickey, R ‘The effect of supervening permission on adverse possession’ (2017) 81 Conv 223 at 226–228Google Scholar.
24 Radley-Gardner, ibid, at 215. See also Hickey, ibid, at 228.
25 Radley-Gardner, above n 23, at 215.
26 Hickey, above n 23, at 229.
27 Heritable Reversionary Company Ltd v Millar (1892) 19 R (HL) 43; Sharp v Thomson 1997 SC (HL) 66.
28 Burnett's Trustee v Grainger [2004] UKHL 8, 2004 SC (HL) 19.
29 These concepts differ from each other in a manner that need not detain us here. In brief, common ownership is the normal situation of shared ownership, where each co-owner has a separate share that may be separately contracted with. Joint ownership is a specialised situation in which there are no separate or separable shares, and is the manner in which trustees hold. For a fuller account, see Reid, KGCThe Law of Property in Scotland (LexisNexis, 1996) paras 17–40Google Scholar.
30 D.41.2.12.1.
31 Above n 19.
32 Formerly, this could be done by recording the conveyance in the older Register of Sasines instead. However, the registration of a conveyance in the Register of Sasines is no longer competent: Land Registration etc (Scotland) Act 2012, s 48(1)(a).
33 Prescription and Limitation (Scotland) Act 1973, s 1(1). The possibility of the registration of purely speculative a non domino conveyances is, however, seriously restricted by the terms of the Land Registration etc (Scotland) Act 2012, s 43.
34 Prescription and Limitation (Scotland) Act 1973, s 1(2). Where the foundation writ is registered in the Land Register, it is enough simply that the person registered as proprietor is unaware of any forgery.
35 The most important example of this is positive servitudes, prescriptive creation of which is governed by the Prescription and Limitation (Scotland) Act 1973, s 3.
36 At para 40.
37 Reid, above n 29, paras 117–125.
38 This is a minor exception to this, not relevant to the issue under consideration. This is the case where goods belonging to one person are in the custody of a third party. Possession of those goods may be transferred to another simply by giving notice to the third party custodier. There is no need for the custodier to accept the change of possession. See Anderson, C ‘Delivery of goods in the custody of a third party: operation and basis’ (2015) 19 Edin LR 165Google Scholar.
39 D.41.3.33.1. There is some doubt in the texts as to whether this is restricted to possessors stricto sensu, or whether it extends also to custodiers generally. Julian (D.41.5.2.1) held that tenants, depositees or borrowers (who did not, in Roman law, possess) could not unilaterally make themselves possessors in order to acquire ownership by usucapio, and Papinian (D.5.4.10) appears to have considered the rule at least potentially to have applied to a negotiorum gestor seeking to possess as heir. By contrast, Paul says (D.41.2.3.19–20) that someone who holds on the basis of deposit or commodatum, to whom the owner then conveys the property, is not considered to change the ground of his possession, because he did not previously possess at all. (A commodatum is a loan for use, with the same item returned. It is to be contrasted with a mutuum, a loan for consumption, in which an equivalent is to be returned. In a mutuum, the borrower becomes owner, and so does possess.)
40 C.7.32.5 (undated, but under Diocletian).
41 D.41.2.19.1 (Marcellus) G.2.59.
42 Barnard, L ‘Usurpation of title – a note on voet commentarius ad pandectas 41.2.13’ (1988) 105 SALJ 114Google Scholar.
43 D.43.26.5 (Pomponius).
44 A tenant was not considered in Roman law to possess, not having the protection of the possessory interdicts. Scots law takes a somewhat broader view of the kinds of holders who can possess, and a tenant is considered a possessor.
45 C.4.65.23.
46 Reid, above n 29, para 623 (Gordon).
47 D.41.2.18pr.
48 In classical Roman procedure, in an action for vindication of property, the judge would not require the property itself to be restored to its owner. Instead, the possessor had the option of paying its value. As Ulpian points out (D.41.4.3), payment of the value on this basis is akin to a purchase, so by accepting this award I am in effect purchasing the property.
49 D.41.4.2.21.
50 A precarium was a revocable licence to occupy land.
51 D.43.26.22pr; D.43.26.6.3.
52 D.24.1.1.
53 D.41.6.1.2.
54 Wubbe, FBJ ‘Nemo sibi causam possessionis mutare potest’ in Spruit, JE and van de Vrugt, M (eds) Brocardica in honorem G C J J van den Bergh: 22 Studies over Oude Rechtsspreuken (Kluwer: Deventer 1987) at p. 130Google Scholar. Good faith must be understood here as meaning openness rather than honesty.
55 Voet, JThe Selective Voet, Being the Commentary on the Pandects (Gane, P ed and trans, Durban: 1955–1957) 41.2.13Google Scholar. For criticism of Voet's position, see Barnard, above n 42.
56 Pothier, RJTraité de la possession (Paris, 1774) para 31Google Scholar (‘if it appears that a thing that I possess has been given to me to possess on a contractual basis, having begun to possess it on that basis, whatever declaration I may make, however long a time it lasts, as long as no other title occurs, my heirs and my heirs’ heirs will continue in infinitum to possess on that contractual basis’).
57 von Savigny, FKVon Savigny's Treatise on Possession (Perry, E trans, 6th edn, 1848) p 49Google Scholar.
58 D.43.16.12 (Marcellus); D.43.16.18pr (Papinian).
59 C.7.39.2.1.
60 Pringsheim, F ‘Animus in roman law’ (1933) 49 LQR 43 at 48Google Scholar.
61 Muirhead & Turnbull v Dickson (1905) 7 F 686 at 694 (Lord President).
62 Zwalve, WJ ‘What a condition would men be in! (Three cases on prescription and adverse possession)’ (2005) 16 Stell LR 336 at 345Google Scholar.
63 [2001] Ch 804 at 818–819.
64 [2002] UKHL 30, [2003] 1 AC 419 at para 58.
65 Blackstone Commentaries on the Laws of England II.150.
66 See eg Reid, above n 29. Professor Reid's treatment of the mental element of possession at paras 123–125 makes no mention of the nemo mutare potest rule. The same is true of the treatments of possession in Gordon, WM and Wortley, SScottish Land Law vol 1 (Edinburgh: W Green, 3rd edn, 2009)Google Scholar paras 14-02–14-10 and Miller, DL Carey with Irvine, DCorporeal Moveables in Scots Law (Edinburgh: W Green, 2nd edn, 2005) paras 1.18–1.22Google Scholar.
67 The institutional writers are a number of writers of authority on Scots law, writing between the late seventeenth and early nineteenth centuries, of whom Viscount Stair is the most prominent. The second edition of his Institutions of the Law of Scotland, on which modern editions are based, was published in 1693.
68 Stair Institutions 2.1.27. See also Erskine Institutes 2.1.30; Bankton Institute 2.1.35. It should be noted here and in what follows that the same general ideas of possession apply in Scots law to both land and moveable property.
69 (1791) 2 Ross LC 708.
70 For discussion of this general point, see Steven, AJMPledge and Lien (Edinburgh: Edinburgh Legal Educational Trust, 2008) paras 10-111–10-122Google Scholar.
71 At 716. In the same case, the Lord President did not use the phrase, but clearly also relied on the doctrine: ‘The question then is, Whether the custodier can detain, not only for such expense; that is, whether he be entitled to take a more ample and beneficial possession than was stipulated at first?’ (at 724). Later (at 726) he talks about ‘converting the possession from a specific contract’.
72 1911 SC 134.
73 At 143. In the quoted passage, the term ‘feu’ refers to estate of land held on feudal tenure. Such holdings were abolished by the Abolition of Feudal Tenure etc (Scotland) Act 2000 and replaced with absolute ownership, with which they were in any case functionally interchangeable for present purposes. That this abolition had to wait for the advent of the Scottish Parliament is a reminder of the difficulties of keeping a legal system up to date without a dedicated legislature. Before this, reforms of this kind which were necessary, but which were of a technical nature, struggled to find Parliamentary time. We often complain of an excess of legislation, but there can also be too little.
74 Institutes 2.1.30.
75 Institutes 2.1.35.
76 That interpretation would also have the benefit that it would be irrelevant whether lease or ownership came first. See also Earl of Morton v His Tenants (1625) Mor 15228.
77 (1591) Mor 9217.
78 The term used is ‘reduced’.
79 We are not told the basis on which the decree was reduced, but presumably there was some irregularity in the obtaining of it.
80 We see here the fear of forged and fraudulent titles that, a generation later, was to lead to the requirement for public recording of land transactions in the Register of Sasines. See the Registration Act 1617, an Act of the pre-Union Scottish Parliament, which complains that ‘by the fraudulent dealing of pairties who haveing annaliet thair Landis and ressauit gryit soumes of money thairfore Yet be thair uniust concealing of sum privat Right formarlie made be thame rendereth subsequent alienatioun done for gryit soumes of money altogidder vnproffitable’.
81 Johnston, DPrescription and Limitation (Edinburgh: W Green, 2nd edn, 2012) para 18.25Google Scholar.
82 This is not to deny the practical advantages of Johnston's view. Many occupiers, holding on the basis of (usually) 999-year leases, granted in the nineteenth century, the original landlord of which is long forgotten and the current landlord unknown, have found the assumption very useful that it is enough for prescriptive acquisition simply to register a title and then fail to pay rent for ten years. The practical point has become less important since the conversion of most ultra-long leases to ownership by the Long Leases (Scotland) Act 2012.
83 (1677) Mor 10876.
84 [1903] AC 229.
85 Stevenson-Hamilton's Exrs v McStay (No 2) 2001 SLT 694.
86 We are concerned, of course, only with my actions after the permission was given. If I took up occupation of the property before the permission, that act was nonetheless unlawful at the time, regardless of the permission subsequently given.
87 1992 SC 357.
88 Prescription and Limitation (Scotland) Act 1973, s 3(3).
89 See Lord Rodger in R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60, [2004] 1 AC 889 for comment on differing Scots and English approaches to tolerance in the context of prescriptive acquisition.
90 1992 SC 357 at 363.
91 1992 SC 357 at 366.
92 1992 SC 357 at 368.
93 1937 SC 93 at 120 (Lord President Normand).
94 A similar point is made Dillon LJ in BP Properties Ltd v Buckler (1988) 55 P & CR 337 at 346.
95 Radley-Gardner, above n 23.