Converting possession to ownership

21 May 2012

The Scottish Law Commission has published a report that recommends Scotland be brought into line with other countries by clarifying the law on ownership and possession of what is known as corporeal moveable property – all physical things except land, for example items such as furniture, artworks and objects – that has been possessed by a person or organisation for a period of time. The report, which recommends that under certain circumstances possession should be converted to ownership, is of particular importance to organisations such as museums holding valuable artworks and objects in their collections, where the original owner or donor cannot be traced. There is existing law in the Prescription and Limitation (Scotland) Act 1973 to regulate such a situation for Land, there is now opinion that this needs to exist for corporeal moveable property.
The old cliché of ‘possession is nine-tenths of the law’ is of course inaccurate under Scots Law – currently, whilst a person may possess something, this does not confirm ownership and the original owner, who may have lost possession through circumstances outside their control, may be able to assert their title to it and claim the item back. Whether the current possessor acquired it in good faith in full belief the person transferring to them had the right to do so does not alter this.
The SLC have put forward two proposals. Firstly, if the person or organisation is in possession of an object that they reasonably believe to be theirs and acquired it in good faith (i.e. they do not have reason to believe it may belong to someone else, or to have been stolen) then they would become the legal owner after possessing the item for a continuous period of twenty years. There was some discussion as to whether items regarded as ‘cultural’ objects should be subject to a different timescale but this was rejected.
The second proposal, which would have general application but would be considered  particularly useful for the museum sector and does have regard to cultural objects, is that if items have been lent to a museum, where the owners cannot be traced, ownership would occur after a period of fifty years if the owner had not been in contact or was not contactable using reasonable diligence.  The owner of the property would need to actively assert ownership by making attempts to contact the holder. However, it seems unlikely that works of art of significant monetary and cultural value could not be linked with a lender or their successors at some stage.
In both cases, it is thought that the relatively long periods of twenty and fifty years mean the proposals would be compatible with the European Convention on Human Rights, which states that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”. The Commission proposes that there would be no compensation to those who had lost title of an object through prescription.
The Commissioners made a number of suggestions – that there would still be a requirement for the possessor to have acquired the item in good faith and take care, particularly when the item is of high value, to ensure the transaction is legitimate; in the event of subsequently discovering it is not, the prescriptive period that gives ownership would not run. It is also said that the transaction does not necessarily need to be for payment, but needs to encompass different scenarios such as gift and inheritance. The report has been put before the Scottish Ministers to decide whether to act on the proposals made by the Commission.

Bookmark and Share



blog comments powered by Disqus

Related Information