Servitudes - new ground?
Whether the Lords' decision in Moncrieff v Jamieson has really advanced the law, or simply created fresh uncertainty
Much has been written about the relatively recent decision of the House of Lords in Moncrieff v Jamieson  UKHL 42 by more learned authors than this conveyancer, in particular in analysing the reasoning behind their Lordships’ decision. However, for those of us who on a daily basis have to draft servitude rights of new, or interpret existing servitude rights whether created by express grant or use for the prescriptive period, the decision may not be as helpful as some have suggested.
Indeed the decision may have confused matters in an area of the law where I believe there was a degree of acceptance and understanding by conveyancers in general, and “rural” conveyancers in particular. Furthermore, it may result in the drafting of new servitudes becoming even more prescriptive than would normally be the case, particularly when acting for the owner of the servient tenement.
Where it all started
The dominant tenement in Moncrieff comprised an area of ground at the foot of an escarpment on which there was a semi-derelict house and a long-disused shop. The only landward access was by steps down the escarpment. Access to the top of the steps was from the public road over the servient tenement. The tenements having previously formed part of the same title, in 1973 the dominant tenement was split off together with “a right of access from the branch public road through Sandsound”. The issue was whether the right to park vehicles on the servitude tenement (it being impossible for vehicles to descend the escarpment) could be implied as ancillary to the express grant of the servitude right. Their Lordships agreed unanimously that it could.
The 11 words constituting the express grant are brief to say the least, but not that uncommon. Vehicular access is not mentioned, nor is the route of the access defined. However, the parties had conceded or agreed the route of the access, that the right could be exercised by vehicles, that it entitled the proprietors of the dominant tenement and their invitees to stop their vehicles at the top of the steps on the servient tenement in order to load/unload/drop off passengers, and also that their vehicles could be turned round on the servient tenement.
It also appeared that while the proprietors of the dominant tenement occasionally parked their car on the servient tenement from around 1983, this became regular from 1987 until 1998 when legal proceedings began. However, throughout that 11 year period the parties co-operated over the maintenance and route of the access, and the proprietors of the dominant tenement parked their car by agreement on ground forming part of the servient tenement.
Consequently, the enhanced scope of the rather vague express servitude right was largely defined by agreement between the respective proprietors over a period of time. Only the issue of parking was in dispute. Acquiescence was not argued before their Lordships, although it had been before the lower courts. However, acquiescence, if established, would not necessarily have been binding on singular successors of the servient tenement. Prescription was not argued because there would only appear to have been 11 years of parking and not the 20 years required to establish a prescriptive right, assuming of course that Scots law recognised a servitude right of parking.
Their Lordships therefore unanimously decided the issue on the basis that a right of parking was ancillary to the express servitude right granted in the conveyance, the scope of which had already been “enhanced” by the agreed actings of the parties.
A class apart
Does this mean that Scots law now recognises a servitude right of parking as a standalone servitude right, or can it only be a right ancillary to an existing right of access? The Lords decided that in this particular case, a right to park was implied within an express grant of a servitude right of access – that is all. Can a similar right be implied if the express servitude right of access has been created as a reservation in favour of the dominant tenement (i.e. where the landowner retains the dominant tenement and disposes of the servient tenement), or where the servitude right of access has been established by prescription?
Before Moncrieff vJamieson
this conveyancer had understood that the recognised class of servitudes was more or less closed and that a servitude of parking, whether as a right in itself or as ancillary to a right of access, was not one of the recognised classes. One reason for this fixed list was that as “servitudes can be created without registration… a purchaser is vulnerable to the existence of servitudes which cannot be discovered from the Register. The fixed list acts as a reassurance that, whatever servitudes might turn out to exist, they are at least confined to certain well recognised types”. So stated the Scottish Law Commission in their Report on Real Burdens in October 2000 (para 12-22). However, it would appear that by 2007, their Lordships took a different view, notwithstanding s 76(1) of the Title Conditions (Scotland) Act 2003.
Section 76 essentially states that provided the servitude is not repugnant with ownership, “any rule of law that requires that a positive servitude be of a type known to the law shall not apply” – meaning the “fixed list” of recognised servitudes. However, this only relates to servitudes created in accordance with s 75 of the Act, i.e. express servitudes registered against both the dominant and servient tenements (which for the purposes of the Act are now respectively called the benefited and burdened properties). Why enact s 76, if there was not a fixed list?
Consequently, does the fixed list still exist in respect of servitudes created by prescriptive usage or pre-28 November 2004, by express grant/reservation?
Practice on the ground
While the actual facts of Moncrieff v Jamieson are likely to be a one-off, I believe that there are likely to be a not insignificant number of properties in a similar situation to the dominant tenement in Moncrieff, in that due to the physical constraints of the property, it is not possible for the owner to park their car within their title boundary and they have no alternative but to park on land not within their ownership.
This situation is not uncommon in titles to salmon fishings where the owner of the fishings does not own the riverbank or the ground over which access is taken. While ownership of salmon fishing rights does include an implied right of pedestrian access for the purpose of exercising the fishing rights, it is standard practice in titles to salmon fishings to provide for express servitude rights of access, both vehicular and pedestrian, where these are required. In a number of such titles the servitude right of access includes the right to park cars at the end of the vehicular section of the access. Can the decision in Moncrieff now provide rural conveyancers with the comfort that such ancillary servitude rights to park are valid and enforceable against singular successors in the ownership of the servient tenement?
Turning to express grants of servitude post-28 November 2004, s 76 has indeed been helpful and going forward there can no longer be any doubt that it should be possible to create servitude rights for parking, provided the servitude is created in terms of s 75. This is good news for the proprietors of dominant and servient tenements alike.
However, for servitude rights created before 28 November 2004 and for all new servitude rights created in accordance with s 75, does the decision in Moncrieff give solicitors acting on behalf of the servient proprietor cause for concern? To what extent has it given the dominant proprietors the green light to argue that the scope of their existing servitude right is capable of including by way of implication, rights which were not expressed and which may not have been within the contemplation of the parties at the time the servitude was created or rights reasonably necessary for the comfortable enjoyment of the servitude, depending on the test that is to be applied in order to determine implied ancillary rights? For the conveyancer engaged in an examination of title, neither of these tests is particularly easy to quantify, to say the least. When drafting or revising servitudes on behalf of the servient proprietor, will it now be necessary to add additional wording to the effect that other than as expressly provided, no ancillary rights are to be implied as coming within the scope of the express grant?
Going forward and on the basis of s 76, there should be no reason why the drafter should not make express provision for the servitude right to include ancillary rights and any obligations in respect of the exercise of those rights. For the careful drafter, Moncrieff v Jamieson is unlikely to be required.
As regards interpreting existing servitudes, Moncrieff has done little to clarify the law. Hopefully, its impact may be limited due to the particular circumstances of the case.
Kenneth Mackay is a partner in Turcan Connell, Edinburgh