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Convenient, but necessary?

14 November 16

Disputes continue to arise over the claimed existence of servitudes not created by express grant, and two new cases help to clarify some of the rules

by Ann Stewart

Servitudes that are created by express grant do not generally pose too many problems for property lawyers (although we can all probably cite notable exceptions!). The situation becomes more difficult and less precise when considering servitudes created in other ways, such as by prescription, by implication or by necessity.

Two recent cases have provided some further clarification and colour to the debate, with an exploration of how a servitude right can or should arise by way of implied grant, and the judicial recognition of a freestanding servitude right of parking.

Establishing implied grant

According to the decision in ASA International v Kashmiri Properties (Ireland) Ltd [2016] CSIH 70 (23 August 2016), it is not an easy task to establish that a servitude has been created by implied grant, and the law should be slow in giving recognition to servitudes created in this manner.

ASA’s attempt to establish that the property which they owned at 6 Coates Crescent in Edinburgh benefited from an implied servitude right of access over a rear car parking area was unsuccessful. Their property included garden ground and a garage to the rear backing onto a lane. Number 6 and the adjacent townhouse number 7 had previously been in the same ownership, but since 1996 had been in separate ownership. No express grant of a right of access was made when the title to the properties was separated. The servitude right of access was claimed over the rear ground of the adjacent townhouse, number 7 Coates Crescent owned by Kashmiri.

Steps leading from the garden ground in number 6 to its garage were located next to a wall and fence which divided the ground to the rear of numbers 6 and 7. At the top of the steps a gate in the fence led from the steps and ultimately the garden ground to the car park behind number 7. The claim was that ASA had an implied servitude right of access by means of the car parking area at the rear of number 7, from the gate through the car parking area and then on to the lane.

The physical configuration of the steps and gate into the car park inferred, according to ASA, that the number 7 car park was intended to be used for number 6’s rear access to the lane. Tenants and former tenants of number 6 had used this route to obtain access since at least 1988, as a short cut to get to local shops and to go for drinks after work.

Criteria for creation

When there has been a division and sale of a property, in what circumstances can there be an implied servitude right of access granted over the retained part? Can a servitude be created by grant implied by the facts and circumstances dividing the property? And what was the presumed intention of the parties?
The court reiterated that before a servitude will be created by implied grant, it must meet the two-part test found in Ewart v Cochrane (1861) 23D (HL) 3:

  • the servitude right must have been used by the benefited proprietor; and
  • the servitude right must be necessary for the convenient and comfortable enjoyment of the benefited property.

The key consideration here is the test of “necessary”. Necessary does not mean necessity: there is a distinction to be made between servitudes created by implied grant, and servitudes of necessity. Servitudes of necessity apply particularly to landlocked sites, where a right of access is necessary to enable the property to be used at all. Servitudes created by implied grant may exist, however, in circumstances where they are not strictly necessary for the use of the property. The relationship between use and necessity was critical in this case, and the evidence fell short of satisfying the test of reasonable necessity for convenient or comfortable enjoyment, since there was a perfectly adequate main entrance on Coates Crescent, and it was easy to access the garage and the rear area by other means, and of course access to the local shops and other facilities by other means was both possible and easy.

It could not therefore be said that access through the gate and across the car park at the back of number 7 was reasonably necessary for the convenience and comfortable enjoyment of number 6, because convenient alternatives were available. It is not enough to demonstrate substantial use; the right must also fulfil the test of being necessary for convenient and comfortable use of the benefited property.

Servitudes bind future property owners, and so any purchaser should be able to discover easily the existence of a real right. Implied servitude grants do not appear on the title. There are, in the view of the court, strong policy reasons for restriction of the recognition of such rights to cases where their existence is reasonably obvious from inspection. The courts should not approach the creation of implied rights in an expansive way, as that could open up the risk of dubious or extravagant claims being made.

Ideally, servitudes should be achieved by express grant and registration of the relevant deed in the appropriate property register, and the court had little difficulty in refusing to find a servitude right of access in favour of ASA’s property. It is not difficult to see the court’s rationale in this case. The test of reasonable necessity fell because convenient alternatives (via the main entrance on Coates Crescent) were available. Access through the gate and across the car park at the back of number 7 was not reasonably necessary for the convenient and comfortable enjoyment of number 6.

Freestanding right of parking

While it has been possible for some years to create new express servitudes that do not need to be of “a type known to law”, historically the law has been slow to admit servitudes created by other means onto that list. Many readers will remember the excitement with which the House of Lords decision in Moncrieff v Jamieson 2008 SC (HL) 1 was received, when it was decided that a servitude right to park could exist, ancillary to a primary servitude right of vehicular access. Their Lordships also opined, obiter, that a freestanding right to park would also be competent, although it was not relevant to the facts of that case.

This type of right is however at the heart of the recent sheriff court case of Johnson, Thomas & Thomas v Smith [2016] SC GLA 50 (28 July 2016).

The pursuer firm owned land in Rutherglen used as a residential site for showmen’s caravans. They claimed that they and their tenants had been using an adjacent strip of ground, owned by T G & V Properties, the second defenders, to park vehicles, including articulated lorries, for over 20 years and that they had been doing so openly, peaceably and without judicial interruption. The parking area was integral to the operation of the residential site, and was the only location where these large vehicles could be parked. They therefore claimed a primary servitude right of parking, with ancillary rights of access to the area.

T G & V Properties did not accept that such a right could exist, and also maintained that due to the extent of the occupation of their land by vehicles, it was repugnant with their ownership of the ground, which, if correct, would mean a servitude could not be created.

At a debate, the sheriff considered whether, and found little difficulty in finding that, a freestanding servitude right to park is competent under Scots law. It might be wondered how, if a servitude not created by express grant must be of a type known to law, and otherwise on the so-called “fixed” or “closed” list of servitudes, the existence of this particular right could be so easily supported?

It is often said that there is a fixed list of servitudes, but no one knows exactly what is in that list, and there lies the clue. The existence of a list that is closed to “new” types of servitude is illusory. It has been confirmed on many occasions that “the categories of servitudes must alter and expand with the changes that take place in the circumstances of mankind”. So they are flexible, and capable of adapting to modern conditions and new types of technology. If an activity is similar to a recognised type of servitude, it may well find favour in inclusion into the “list”. Another aspect of this evolution is where the use may be likely to occur “by custom” – that is, by long usage and practice, and as an incident to the type of property in question.

Custom was not the basis asserted in this case, but the sheriff found that the servitude was similar in nature to the type recognised in Moncrieff, and consequently now “known to law”, albeit, in that case, as ancillary to a right of access. It would however be illogical to recognise the ancillary right, if it was not also capable of existing independently.

Whether the firm successfully establishes a freestanding right to park in this case will depend on the outcome of a proof on all the facts and circumstances, but the principle that such a right can exist has now been set.

Repugnancy?

The question of whether the right was repugnant with ownership was also swiftly dispatched by the sheriff. The partial or total exclusion of an owner from physical occupation of the land did not necessarily prevent the right from being a servitude. That too was recognised in Moncrieff, since many well recognised servitudes involve placing objects or erecting structures on the land and “the fact that the servient proprietor is excluded from part of his property is not necessarily inimical to the existence of a servitude”. There will always be some use that is prevented by a servitude, but even a substantial restriction on the use of the land caused by extensive parking rights does not prevent the owner from enjoying other proprietorial rights.

Ann Stewart, property and professional development adviser, Shepherd & Wedderburn 

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Your comment

Roderick Paisley, Professor of Scots Law, University of Aberdeen

Thursday November 17, 2016, 14:03

ASA International ltd v Kashmir Properties (Ireland) Ltd [2016] CSIH 70; 2016 GWD 27-493 was decided as an issue of servitude constituted by implied grant. To constitute a servitude in this way there was insufficient necessity for a second access on the facts. The case contains useful dicta on the policy grounds relating to implied grants as an off register form of constitution of real rights and an analysis of the degree of necessity required in such constitution.

However, it is to be noted no degree of necessity is required to constitute a servitude by positive prescription (itself a form of off register constitution where 1973 Act, s.3(2) is relied upon) and many servitudes of passage over second accesses are constituted in this way.

The ASA case was originally raised as a declarator of servitude constituted by prescriptive exercise in terms of 1973 Act, s.3(2) when, after proceedings had commenced, it was discovered that during the prescriptive period the dominant and servient tenements had been occupied by separate tenants but had been owned by a single landlord in the period 4 October 1989 to 3 October 1994: unreported Edinburgh Sheriff court, reference A874/12, judgement of Sheriff Noble, 4 June 2015, para 3. That ruled out the constitution of a prescriptive servitude in terms of 1973 Act, s.3(2) as insufficient time with the tenements in separate ownership elapsed afterwards to create the servitude by possession: this unity of title precluding prescriptive constitution is noted in Donaldson’s Trs v. Forbes (1839) 1 D. 449 at 452 per Lord Moncrieff.

In the ASA case the action of declarator was raised by the owner of the putative dominant tenement in November 2012 and a notice of intention to defend lodged by the putative servient proprietor before a further 20 years' possession since the unity of title had occurred. Thus there was judicial interruption before 20 years had elapsed with possession as of right during that period. Usually judicial interruption occurs when a servient proprietor raises the proceedings but here (as was also the case in Greig v Middleton 2009 GWD 23-365) is a case where the dominant proprietor initiated the proceedings and it was the notice to defend that was treated as the date of the judicial interruption. It seems the dominant proprietor's hands were forced by actions on the ground by the servient proprietor or his tenant to wall off the route of the access but, if circumstances had been otherwise, they might have wished to have held back from raising proceedings.