Servitudes

Question 1

Patrick v Napier

Answer 1

1. A fisherman bought a property and obtained a grant
2. The grant purported the right to fish in a loch
3. In this case, it was held this was a personal benefit
4. Not everyone would benefit from this grant, only fishermen

Question 2

Regency Villas Titles Ltd v Diamond Resorts (Europe) Ltd

Answer 2

1. Reopened the debate on whether you can have recreational easements (servitudes)
2. The court held that it was possible to create this type of recreational easements
3. It is unclear whether the reasoning would follow in Scotland

Question 3

McCabe v Patterson

Answer 3

1. A servitude of ‘use’ of property is impermissible because it is too vague as well as potentially repugnant with ownership

Question 4

Moncrieff v Jamieson

Answer 4

1. This case centres on a dispute involving parking rights linked to a vehicular access servitude
2. It hinges on whether parking is a natural extension of the access servitude, delving into property law intricacies
3. The pursuers owned land by the sea, with a cliff on one side and the only access via a stairway to the top of the cliff
4. They had a legal right to cross the J family’s land to reach a public road 150 yards away
5. They used this path for cars and had a dispute about parking there
6. The sheriff ruled they could park as part of their access rights
7. The right of parking was necessary for the right of access to be useful
8. The J family appealed but lost in the Inner House of the Court of Session
9. They then appealed to the House of Lords
10. Both parties agreed on the original access rights, covering both pedestrian and vehicle use, including stopping for various purposes

Question 5

Johnson, Thomas & Thomas v Smith

Answer 5

1. As well as being able to be an ancillary right, a parking right can be a standalone right as well

Question 6

Mendelssohn v The Wee Pub Co Ltd

Answer 6

1. A pub owner tried to establish a servitude to hang a sign from a burdened property
2. The court held that this could not be a valid servitude in Scotland
3. The Romans also had signs hanging from burdened properties, but did not need servitudes for this

Question 7

Neill v Scobbie

Answer 7

1. A servitude was sought to be granted to take electricity cables across a burdened property
2. The servitude of aqueduct only allows to take water across the burdened property
3. The court held that electricity cables could not be taken across
4. This is why section 77 was introduced

Question 8

Romano v Standard Commercial Property Securities Ltd

Answer 8

1. A servitude of shopfront was sought to be granted
2. The owner of the benefited property’s signage for the shop reached up the building into the property of an upstairs neighbour
3. The court held that there is no servitude of shopfront in Scotland

Question 9

Axis West Developments Ltd v Chartwell Land Investments Ltd

Answer 9

1. You don’t need to describe the content of the servitude in great detail: a servitude of “access” was held to be clear enough

Question 10

Moss Bros Group plc v Scottish Mutual Assurance plc

Answer 10

1. There was a deed which purported to grant a right of egress
2. The court held it was clear that the parties purported to create a servitude

Question 11

Garden v Arrowsmith

Answer 11

1. There was a deed which purported to grant “the following burden: namely, a right of access”
2. The court held that it was clear that the parties were trying to create a servitude, not a real burden

Question 12

Cochrane v Ewart (1861) 4 Macq

Answer 12

1. Concerned a piece of land which had a drain and cesspool on it
2. There was no express servitude granted
3. It was necessary for the servitude to be granted for the reasonable enjoyment of the property, so an implied servitude existed
4. A grant is implied if the servitude is ‘necessary for the reasonable enjoyment of the property which is granted’

Question 13

Gow’s Trs v Mealls

Answer 13

1. Property A and property B used to be owned by the same owner
2. They used the access to property B to get into both property A and B
3. The properties were split up and sold off
4. The owner of A continued to use the access via B
5. A’s access was eventually cut off
6. The owner of property A argued that the servitude was created by implication
7. The court disagreed because A did have its own access to property A by the time of severance

Question 14

ASA International Ltd v Kashmiri Properties (Ireland) Ltd

Answer 14

1. Concerned two properties which are right next to each other
2. They used to be owned by the same person
3. The office workers of ASA used to cross the car park of the other property to get to the street
4. They were unsuccessful in arguing that a servitude could be implied
5. It was not reasonably necessary because they could just use the front door or go through the back garden and the garage instead of using the other property

Question 15

Fergusson v Campbell

Answer 15

1. A landowner had a mill which was operated by water
2. It was utterly necessary for them to have the servitude of aqueduct because the mill needed water to function

Question 16

Murray v Medley

Answer 16

1. The owners forgot to reserve the right to have water running through the property
2. The Sheriff held it was not utterly necessary

Question 17

Bowers v Kennedy

Answer 17

1. There is always an inherent right to access your property
2. Servitudes can be extinguished by prescription
3. In this case, there was 20 years of non-use
4. The servitude had been extinguished by negative prescription
5. Even if there were no servitudes, there continued to be an inherent right to access the property

Question 18

Moncrieff v Jamieson

Answer 18

1. The access right was of no use without a parking right
2. The right of parking was held to be ancillary to the right of access
3. It satisfied both tests (it was reasonably necessary for the convenient and comfortable enjoyment of the servitude, and it was within the contemplation of the parties at the time the servitude was created)

Question 19

Duncan v Glasa LLP

Answer 19

1. It was necessary in order to use the right of access for certain trees to be removed
2. When the servitude was expressly granted to the benefiting proprietor, there was an express obligation that the benefiting proprietor would be responsible for contributing to the costs of the removal of these trees

Question 20

Drury v McGarvie

Answer 20

1. An elderly couple had a right of access across a neighbour’s land
2. The land was used for agricultural purposes
3. The owner was concerned that his livestock would escape through the right of access
4. He erected a gate across the access right
5. The elderly couple complained about this as they said it was difficult to open the gate
6. The court held that it was reasonable to have a gate in these circumstances
7. The gate should be such that a benefited proprietor of ordinary health and ability should be able to open the gate

Question 21

Irvine Knitters Ltd v North Ayrshire Cooperative Society Ltd

Answer 21

1. There was an access right over land belonging to Irvine Knitters Ltd
2. It served a Coop
3. Over time, the Coop acquired land on either side of the benefited property
4. To respect the fact that the servitude only benefited the original Coop, goods were brought into this building and then moved to the warehouses within the store
5. It was held that this was not a reasonable use of the servitude
6. The servitude was used not just to benefit the benefiting property, but also the other properties owned by the benefiting proprietor
7. “The benefited owners may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non-dominant subjects” (per Lord President Emslie)

Question 22

Ruddiman v Hawthorne

Answer 22

1. This case restated the rule in Irvine Knitters

Question 23

Grant v Cameron

Answer 23

1. There was an access right to a shop
2. The public was allowed to use the access right to get to the shop as well
3. The servitude right of access stated that it could be used for all purposes

Question 24

Dunlea v Cashwell

Answer 24

1. A right of access was granted to a property
2. It was expressly limited to ordinary residential use
3. It was held that, when the benefited proprietors wanted to build further on the land, the right of access could not be used to transfer building materials across the land
4. Building new houses does not fall within ordinary residential use

Question 25

Carstairs v Spence

Answer 25

1. There was a prescriptive right of access (no deed) to access a market garden 2. The market garden was changed into a building site 3. The owner of the burdened property argued that this was an increase in burden on the burdened property 4. The court held that that was not in itself an increase on the burdened property 5. A change in the use made of the benefited property is not in itself an increase in the burden on the burdened property

Question 26

Kerr v Brown

Answer 26

1. There was a right to take away dirty water across the burdened property 2. It was held that to change that to sewage would be an increase in burden 3. This is a case which also illustrates the rule tantum praescriptum quantum possessum: the extent of your possession is the extent of prescription 4. In passage servitudes (for example way, aqueduct) a change in the type of thing passing is an increase in the burden 5. But there is no objection if the new thing is simply a modern version of the original thing 6. For example, an electric car instead of a petrol driven car

Question 27

Alba Homes Ltd v Duell

Answer 27

1. A single property was being split into two properties 2. The servitude benefiting two properties was not an increase in the burden 4. Whether increased use is an increase in the burden depends on the scale of the increased use

Question 28

Keith v Texaco Ltd

Answer 28

1. There was a right of access which benefited one property 2. The benefited proprietor wanted to build thirty houses on the land 3. It was held that that would be an increase in the burden 4. Whether increased use is an increase in the burden depends on the scale of the increased use