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Energy Bulletin - Court rejects servitude of access for maintenance by prescription or of necessity

A decision of the Court of Session concerns a servitude right of access over a strip of land between two houses in Elie, Fife. The case is instructive in terms of the quantity or quality of access required to establish a servitude right of access by means of prescription. As with all servitude cases, it is highly fact specific therefore the judgment is lengthy (175 pages) and narrates much of the factual witness evidence.

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Background

The pursuer had grown up at Seven Gables, Elie and latterly used it as a holiday home and holiday let. Around 2004, a conservatory was built in the garden of the neighbouring property, Seafort. This left a passageway between the side of the conservatory and the western wall of Seven Gables. The defender claims that he, his mother, or tradesmen on their behalf, had long taken access across the ground that formed that passageway for the purpose of regular maintenance to Seven Gables such as painting, window cleaning and maintaining the gutters. When the neighbouring owner put Seafort on the market in 2016, however, she answered no to the question: “As far as you are aware, do any of your neighbours have the right to walk over your property, for example to put out their rubbish bins or to maintain their boundaries?”

The defenders are the subsequent owners of Seafort. They demolished the conservatory and built a new extension leaving very little space between the extension and the western wall of Seven Gables. The pursuer contended that the extension prevents him from exercising a servitude right of access over the land for maintenance; said servitude having been constituted either by prescription, in terms of section 3(2) of the Prescription and Limitation (Scotland) Act 1973, or by virtue of being a servitude of necessity.

Decision

Servitude by prescription: The judge found that, on the balance of probabilities, the pursuer and/or his mother used the disputed area for a few minutes on up to three occasions each year to look at the condition of the wall of Seven Gables and tradesmen had used the strip of land to take access to paint the gable wall or guttering at most every five years. This is not use of the quantity or quality required to establish a servitude right by means of prescription. There was also evidence from one tradesman that he had asked permission from the owner of Seafort before accessing the disputed area to carry out work to Seven Gables. This evidence did not support the existence of a servitude right of access.

Servitude of necessity: The judge did not accept that the circumstances gave rise to a servitude of necessity. No authority was produced to support the position that a servitude of access for the purposes of repair, maintenance and inspection could be constituted by necessity and the Lady Carmichael noted that there are policy reasons against taking an expansive approach to the constitution of off-register rights, including servitudes of necessity.

Comment

This case is instructive in terms of the quantity or quality of access required to establish a servitude right of access by means of prescription. Even if the pursuer had proved all of the access that was averred, it would still not have been of sufficient frequency or duration to constitute a servitude right of access by prescription.

The case is also a lesson on good record keeping. The pursuer no longer had records of when maintenance was carried out or by whom, making his case more difficult to prove. Significantly for legal advisers, the pursuer's solicitors were called to give evidence in this case and their file entries
and communications were lodged as productions.

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