Sheriff court case considering the existence of a servitude right of parking.

Johnson, Thomson and Thomson owned an area of land in Rutherglen (part of the Cuningar Loop) which was used as a residential site for showmans’ caravans. They sought declarator that they had a servitude right of parking over a narrow strip of vacant ground owned by T G & V Properties Limited. JT&T argued that the right had been created by prescription as they and their tenants had parked vehicles on the strip openly, peaceably and without judicial interruption, for over 20 years.

The case raised the following preliminary questions for the court:

1. whether Scots law recognises a “free-standing” servitude right of vehicular parking (i.e. an independent right which is not merely ancillary/secondary to a primary right of vehicular access); and
2. whether such a right (which could be unlimited as to the number and type of vehicles to be parked there, and potentially covering the whole of the burdened property at all times) is repugnant[1] with ownership of the servient tenement.

Free standing right of parking?
After considering the authorities, the sheriff found that Scots law does recognise a free-standing servitude of parking. Although servitudes created by prescription[2] require to be “known to the law” (there is some times said to be a “fixed list” of servitudes), that requirement has some flexibility to deal with changing circumstances and modern conditions. As such, servitudes rights can be acceptable where they are “similar in nature” to existing known servitudes. The sheriff considered Moncrieff v Jamieson[3], in which it was found that a servitude right of vehicular parking could exist as ancillary to a servitude of access. The sheriff noted that, although it was not the point the case decided, the judgements had indicated in passing that a free-standing right of parking could exist and the sheriff could think of no compelling reason why a right of parking should be confined to an ancillary status:

“In summary, while I acknowledge that Moncrieff does not represent a strictly binding judicial recognition of the existence of a free-standing servitude right, in my judgment the debate on this narrow issue is ended for all practical purposes by the overwhelming current of eminent obiter dicta in that case.  It is futile to stand Canute-like against it.  From Moncrieff, it is but a short skip in logic to conclude, by analogy with the ancillary right recognised in that case, that an independent free-standing servitude right is, at least, similar in nature thereto.”

Repugnant with ownership?
T G & V and the other defenders argued that the alleged servitude was repugnant with their ownership of the servient land because the exercise of the right could result in the entire area of the servient tenement being covered by vehicles, every day and all day, thus excluding them from any practical or realistic enjoyment or use of their land. However, the sheriff took the view that the repugnancy issue was not engaged in this case and referred to the judgements in Moncrieff which pointed out that many well known servitudes involve structures being erected or objects being placed on the servient land. The sheriff pointed to Lord Stott’s test in Moncrieff which asks whether the servient owner retains “possession and control” of the servient land”:

“For my own part, I see much force in Lord Scott’s reasoned articulation of the repugnancy principle.  A servitude right of parking may well substantially restrict the rights of the owner of the servient tenement and the uses to which, from time to time, he can put the surface of the land, but his rights as proprietor are not sterilised.  He can build over the servient tenement, he can build under it, he can advertise on hoardings around it, or otherwise utilise the boundary walls.  Indeed, he can park on it himself, or use it for any other purpose, provided he does not interfere to any material extent with the reasonable exercise of the servitude right by the dominant proprietor.  The servient proprietor may not have physical occupation of the surface of the land when the servitude right is being exercised, but he remains the owner of the land, he remains in control of it, he remains in (legal) possession of it, and he is at liberty to exploit its residual uses.”

The full judgement is available from Scottish Courts here.

 All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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[1] i.e. so restrictive that the value of ownership would be lost. Servitudes which are repugnant with ownership are not permitted in terms of s76(2) of the Title Conditions (Scotland) Act 2003.

[2] Servitude rights constituted by express written grant no longer require to be of a known type as a result of section 76(1) of the Title Conditions (Scotland) Act 2003.

[3] Moncrieff v Jamieson 2008 SC (HL) 1.

This is a Sheriff Court case concerning the liability for repairs to the roof of a building in Edinburgh.

The building was formerly a single dwelling but subdivided into three flats and fell within the definition of a tenement in terms of the Tenements (Scotland) Act 2004. The title deeds contained a burden sharing the cost of repairs to the roof on the basis of the assessed rentals for the flats.

Ms Waelde was seeking the recovery of the costs of repair of a skylight and Velux window in the roof of the property from the owner of one of the other flats.

Velux Window
With regard to the Velux, Mr Ulloa argued that, because the Velux had been added after creation of the burden, the burden did not apply to it. That argument was not accepted by the sheriff who, noting that the repairs were to the outer edge of the frame of the Velux and the wall separating the building from the building next door, was “attracted by the idea” that a roof should:

“be taken to include parts added thereto which are of the same character; and that an obligation to contribute to the cost of maintaining it created by the type of burden in the present case should be treated as extending to the cost of maintaining same.”

Also, the sheriff noted that Mr Ulloa had bought his flat after the Velux window had been added and took the view that Mr Ulloa had acquiesced in the presence of the Velux and the burden should be interpreted in a way consistent with the window forming part of the roof.

However, although the sheriff could make a finding in principle that Ms Waelde could recover the costs of repairs to the Velux, Ms Waelde did not provide evidence as to the rateable values of the flats and consequently the sheriff found that her case in that regard had to fail.

Skylight
With regard to the skylight, the sheriff found that the repairs (replacement of Flashband tape on the surfaces of the glass panes themselves) were not repairs to the roof and consequently the title burden did not apply. However, the sheriff found that the skylight acceded to the roof. And, whilst that did not mean the skylight became part of the roof, it did mean that it was part of the building. But, as the roof was common property and the skylight acceded to it, the skylight was common property too (the sheriff noted that he came to this conclusion with some hesitation). In terms of the Tenement Management Scheme (TMS) contained in the 2004 Act, common property is “scheme property” and in terms of Rule 4(2)(a) of the TMS, MR Ulloa was liable for one third of the cost of maintaining the skylight.

The full judgement is available from Scottish Courts here.

Background
Inner House case relating to a development at Rubislaw Quarry in Aberdeen. The developers sought the co-operation of those with interests (proprietors/tenants) in nearby office blocks (who were concerned that the new development would have a detrimental effect on the value of their properties) with respect to access to the development site. An agreement was entered into between the developers and the proprietors/tenants which included a restriction on the net lettable office space within the new development. The court action involved successors to the original parties to the agreement.

Arguments
The developers sought declarator that the relevant clause:

1. allowed the total amount of office space in the development to exceed the restriction (i.e. they argued that the restriction did not apply to owner occupied or vacant office space); and
2. was not a real burden and, as such, bound only the original parties to the agreement and not their successors.

Decision
Those arguments were rejected both in the Outer House and again on appeal to the Inner House.

Meaning of the clause
Taking account of the commercial purpose of the clause and the overall commercial context in which that agreement operated, the court found that the intention was to provide for a maximum floor area which was capable of being let for office use.

Whether binding on successors
Whether the burden was real (i.e. binding on successors) depended on whether the restriction on office space was:

1. purely a trading condition, designed solely to protect the personal commercial interests of those  interested in the offices; or
2. whether it, in addition to any personal benefit, also conveyed a material benefit on the properties themselves.

The proximity of the development to the offices was an important consideration (without physical proximity there can be no real burden). Not only were the properties adjacent to one another, it was intended that they should share the same access road.  The proprietors/tenants were seeking protection against reductions in rental values arising from the introduction of additional competition within the neighbourhood. The restriction therefore benefited the offices as commercial properties by protecting their rental value. The court also found that the clause did not result in an unreasonable restraint of trade noting that it had been negotiated as part of commercial agreement between the parties (there being no suggestion that there was any disparity in the parties’ bargaining power) which indicated that it was reasonable as between the parties. The clause merely restricted the amount of office space that could be constructed and did not prohibit use of the property as office space. Further, the court noted that there was no suggestion that the extent of the actual restriction imposed was in any way unreasonable or disproportionate in the context of the whole of the Rubislaw developments.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Case from the Lands Tribunal for Scotland in which Mr and Mrs Franklin sought variation or discharge of a title condition preventing them from building a two-storey extension at their house in Dalgety Bay. Mr Lawson was a neighbour who objected to the extension on the basis that it would interfere with his view and take sunlight from his garden.

A condition in a prior feu disposition prevented alterations to the house without the consent of the superior. This condition was supplemented by another condition which allowed the feuars to enforce the conditions of their feu dispositions against each other but only with the superior’s consent. There was also a further clause giving the superiors the right to waive or vary all conditions.

The question arose as to Mr Lawson’s right to enforce the burden. In terms of section 52 of the Title Conditions (Scotland) Act 2003, following feudal abolition and removal of the superior, burdens created under a common scheme can be enforced by the proprietor of any property within the common scheme. However there must also be nothing in the title of the burdened property indicating that there are no third party rights of enforcement. Usually, the superior’s right to vary or waive the real burdens will indicate that there are no third party rights of enforcement. That was the situation in this case and, although there was also a positive power allowing the co-feuars to enforce the conditions, the tribunal found that (due to requirement for superior’s consent) the effect of the provision was simply to reinforce the proposition that the ultimate right of enforcement rested with the superior not the co-feuars. Thus Mr Lawson could not enforce the burden under s52.

However, the tribunal found that Mr Lawson had a right to enforce the burden under s53 of the 2003 Act under which properties within a group of related properties can enforce burdens imposed under a common scheme against other properties within the group. (There is no requirement that there be nothing indicating that there are no third party rights of enforcement under s53).

In terms of s8 of the 2003 Act a person can only enforce a real burden if they have an interest to enforce it. In order to have an interest to enforce it, a breach of the burden must result in “material detriment” to the value or enjoyment of the enforcer’s property. There was some discussion as to Mr Lawson’s interest to enforce. However the Tribunal took the view he did have an interest to enforce and said the following with regard to the meaning of “material detriment”:

“It is enough to say that we are satisfied that [Mr Lawson] does have an interest to enforce. As will appear from the discussion below, we have no doubt that the extension would have a material adverse impact on the respondent’s enjoyment of his property within the meaning of sec 8. In that context we see no reason to exclude the special attraction the view has for the respondent himself as an aspect of enjoyment of the property but, in any event, where there is an identifiable element of detriment which cannot be disregarded as insignificant or of no consequence, it seems to us that the test of materiality can be met. We think this is in accord with the substantive views expressed by the Sheriff Principal in Barker v Lewis at [27]. We do note that at para [24] he described “material” as an adjective of degree. However, this may be misleading. It can properly be seen to have a primary meaning as simply the opposite of “immaterial”. Determination of what is “material” does involve assessment of matters of degree but what is required is a decision as to whether or not the subject matter is “material”. The term is not primarily an adjective expressing quantity.”

After hearing the evidence, the Tribunal agreed to vary the title condition to the extent necessary to permit the Franklin’s proposed extension. No compensation was awarded to Mr Lawson. Although the Tribunal accepted that variation of the condition would result in a degree of loss to him, it noted that compensation could only be awarded for “substantial loss” and it could not find sufficient material to justify making any award.

The full decision is available from the Lands Tribunal for Scotland here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Outer House case relating to a development at Rubislaw Quarry in Aberdeen. The developers sought the co-operation of those with interests (proprietors/tenants) in nearby office blocks (who were concerned that the new development would have a detrimental effect on the value of their properties) with respect to[1] access to the development site. An agreement was entered into between the developers and the proprietors/tenants which included a restriction on the office space available for rent within the new development in the following terms:

“The northern quarry proprietors undertake (to the relevant parties) that the maximum net lettable floor area of Office Space which may be provided within the northern quarry subjects at any given time shall not exceed 2,025.29 sq. m. (in total)”.

The court action involved successors to the original parties to the agreement. The developers sought declarator that the clause:

1. allowed the amount of office space in the development to exceed 2,025.29 sq. m but restricted the space actually available for let to 2,025.29 sq. m (i.e. they argued the figure did not include owner occupied or vacant office space); and
2. was not a real burden and, as such, bound only the original parties to the agreement and not their successors.

 Lord Malcolm rejected both of those arguments.

Meaning of the clause
After considering the whole terms of the contract “in the light of the general setting and purpose of the agreement”, Lord Malcolm found that the overall intention was to provide for a maximum floor area which was capable of being let for office use. In coming to this conclusion, account was taken of the preamble to the agreement, which required the developer “to accept certain restrictions with regard to office space within any development of the northern quarry subjects…”, and a further clause containing a requirement that developers exhibit floor plans and internal layout, which would have been irrelevant had the only restriction been on letting floor of space with no limit on the amount constructed.

Whether binding on successors
Whether the burden was real (i.e. binding on successors) depended on whether the restriction on office space was:

1. purely a trading condition, designed solely to protect the personal commercial interests of those  interested in the offices; or
2. whether it, in addition to any personal benefit, also conveyed a material benefit on the properties themselves.

The proximity of the development to the offices was an important consideration. The existing office blocks and the new development site presented a “distinct neighbourhood”. The proprietors/tenants were seeking protection against reductions in rental values arising from the introduction of additional competition within that neighbourhood. The restriction therefore benefited the offices as commercial properties by protecting their rental value. Also of relevance in coming to the judge’s conclusion that the burden was binding on successors, was the fact that the offices were specifically adapted for office use meaning future owners would be likely to use them for the same purpose and, consequently, the burden on the new development would be reflected in the value of the existing properties.

Title and Interest of the developers
Lord Malcolm also rejected an argument made on behalf of the proprietors/tenants to the effect that the developers did not have title and interest to bring the action as, although they had entered missives for the purchase of the site, they had not yet recorded title to it. The court would refuse to entertain declarators concerning purely academic, speculative or hypothetical issues, or where the pursuer has no practical interest in the outcome. However, in this case the developers had a good reason for discovering the correct legal position at the time they raised the action: they had entered into missives (with a view to developing the site) with the current owners who, as a result, had no interest in the matter.

The full judgement is available from Scottish Courts here.

(See appeal to the Inner House here.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.