Servitudes - Avoiding being taken by surprise
If you’re buying Scottish property, you won’t want to find that unexpected third party rights, known as servitudes, affect it. Recent cases highlight the complexities and potential pitfalls of this vital area of law.
Servitudes are rights in favour of one property (the benefited property) over another property (the burdened property), which once created can be enforced against all subsequent owners of the burdened property.
The equivalent rights in England and Wales are known as “easements”.
The best-known example is a servitude of access – but there are also various other types of rights which, as the law has developed, have formed a list of recognised types of servitudes (the fixed list) in Scotland.
The Moncrieff case
The fixed list had been thought to be effectively closed for many years – but in the 2007 case of Moncrieff v Jamieson, the House of Lords opened up a debate by recognising for the first time that a servitude of car parking (which is not a type of servitude on the fixed list) may be created.
That case related to two plots of ground in Shetland. The lower plot (the benefited property) was marooned: surrounded on one side by the sea and on the other by the bottom of a cliff – at the top of which was the other plot (the burdened property).
The two plots had originally been owned by the same people.
The public road ended 150m away from the cliff edge – so when the lower plot was sold off in the 1970s, a right of access over a private road across the burdened property and leading to the cliff edge was granted to the lower plot.
But remember, it’s a cliff – and so the lower plot can’t be driven to without remaking The Italian Job.
The right of access over the private road therefore also needed to include an implied right of parking, as if it did not, vehicles using the access road to reach the lower plot would have to drop off passengers and deliveries at the edge of the cliff, and then drive back to the public road to park. The owners of the lower plot were a family with young children, so doing that was obviously not very convenient.
Luckily for them, the House of Lords decided that the servitude right of access did include an implied ancillary right of parking – because it was “necessary for the comfortable enjoyment” of the lower plot.
Some of the judges suggested that a right of car parking might exist as an independent servitude. Further, the court dismissed the notion, long held by some Scots commentators, that a right of car parking could never be a servitude as the burdened proprietor’s ownership would be interfered with to an unacceptable degree. This is the principle that a servitude right should not be "repugnant with ownership".
The Romano case
The case of Luigi Romano v Standard Commercial Property Securities Limited ("SCPSL") and Atlas Investments Limited, in which Semple Fraser successfully acted for SCPSL, examined whether a right to install a shopfront and fascia onto a neighbouring property could be a valid servitude.
Luigi Romano owned the basement, and SCPSL owned the raised ground floor of a tenement in Glasgow’s Buchanan Street.
The title deeds for both properties narrated a right, granted in 1962 in favour of the basement property, to attach a shopfront (including fascia) over part of the external wall of the raised ground floor premises.
Could this unusual right be a legally recognised servitude – enforceable against all subsequent owners of the raised ground floor premises?
If so, the right would have to be either one on the fixed list of recognised servitudes, or at least similar in nature. This rule about the fixed list exists to counter-balance the fact that servitudes need not necessarily be in writing, but instead can be created by twenty years possession and use through “positive prescription” – and therefore an examination of title deeds will not always reveal existing servitudes.
In the words of the judge in the Romano case, “the principle is to prevent purchasers from being taken by surprise by a claim of some unusual and unwritten burden affecting their property.”
In the Moncrieff case a servitude right of parking had been judicially recognised for the first time. But would the judge in the Romano case also take lawyers and property owners by surprise by further extending the fixed list of servitudes?
No. The judge held that there was no known servitude of shop front in Scotland, and that it wasn’t sufficiently similar to any other known servitude. So although the right to attach a shopfront appeared in both sets of title deeds, it was not in fact enforceable.
Beyond the feudal system
Like the majority of servitudes, the rights under debate in the Moncrieff and Romano cases had been created before the old Scottish feudal system was swept away in 2004 by a raft of new legislation.
The new legislation departs from the historical position on the creation of servitudes - under the new regime, provided a newly granted servitude meets certain minimum requirements and its terms are registered against the titles to both the benefited and burdened properties, it will be competent.
However the fixed list of known servitudes will still apply to the countless servitude rights created prior to the coming into force of the new legislation in 2004, or which are created at any time through positive prescription (i.e. 20 years possession and use).
The way forward
The Romano case has now been appealed. What will the Inner House of the Court of Session make of it? Some interesting questions arise:
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Moncrieff suggests that in some circumstances the fixed list could be departed from for pre-2004 servitudes. Will the Inner House take account of that (enabling them to recognise a servitude right to install as shopfront) or will they stick with the fixed list?
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Is there a concern that even if it can be created, a servitude right of shopfront might be "repugnant with ownership" ie one which it interferes with the rights of the burdened property owner to an unacceptable degree? The comments in Moncrieff indicate that the courts will not now consider rights of car parking always to be repugnant with ownership but would a similar conclusion be drawn in respect of a purported right to install a shopfront?
In both cases it is noticeable that this really is an area of the law where careful attention is required. Both the Moncrieff and Romano cases involved rights created in writing – but while in the Moncrieff case the court effectively read additional wording into what the title deeds said, in Romano the court concluded that the right clearly created in the title deeds was not in fact enforceable as a servitude.
The cases therefore highlight that when it comes to servitudes, simply relying upon what the title deeds say is not sufficient. Although these recent developments have clarified and developed the law in some respects, it’s clear that some significant grey areas remain – so when it comes to servitudes it's essential to seek the right legal advice.
For further information please contact: Roland Smyth