Confusion on servitudes suggests law in Scotland is at sixes and sevens

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Surely when you buy a property or land, you need to be certain as to what you have just bought? When it comes to servitude rights of access, however, the law has never been crystal clear.

Servitudes are access rights granted over one property for the benefit of the neighbouring property. “Access” can mean pedestrian access, vehicular access, or even just access in the sense of having a pipe run through your neighbour's land. Servitudes restrict property ownership on the one hand and benefit property ownership on the other.

Servitude rights are “real rights”. They attach to the land and are capable of binding each subsequent purchaser of the land. Given the consequences of servitudes, you would think they would be written down, recorded, even, in the Land Register, so searches can be carried out to ensure you know precisely what you are about to buy (or not buy).

Therein lies the confusion. Because of the ways servitudes can be created, they do not need to be written down anywhere to be valid.

They can be: expressly granted by one party in favour of another and documented in a formal deed of conveyance; implied through the surrounding facts and circumstances if the servitude is said to be necessary for the reasonable and comfortable enjoyment of land; or created though usage which is open, peaceable and without judicial interruption for a period of 20 years. Of these three, only the express grant is in writing, so you can easily see why confusion and disputes may arise.

So when the law is at sixes and sevens, what better way to help clear up matters than by referring to a case involving numbers 6 and 7 Coates Crescent, Edinburgh? At the bottom of the back yards, separating the two properties, there used to be a gate – claimed as the gateway to an implied servitude right of pedestrian access in favour of 6 Coates Crescent, over the land at 7 Coates Crescent. The gate is now gone, but not before it was the subject of four years of litigation in Edinburgh.

Having heard the appeal, the court refused to declare the existence of an implied servitude right of access. The case report contains helpful judicial commentary on how the courts will approach the question of whether real rights are to be implied into parties' bargains. The court commented that any purchaser of property should be able to easily discover the existence of real rights. Normally this is achieved by express grant and the recording of the relevant deeds in the Land Register. Implied rights, however, do not appear in the Land Register.

In establishing an implied right, it is necessary to look at the relationship between use, on the one hand and necessity for the convenient and comfortable enjoyment of the land, on the other. It is a high test to meet and the courts will be slow to imply such rights except where it is reasonably obvious from the surrounding facts and circumstances that such rights exist. To be certain of their existence, therefore, it really is a must to ensure all such rights are documented at the time of purchase.

An unwritten servitude can also be created through use which is open, peaceable and without judicial interruption for a period of 20 years. All that means is that for 20 years, a right of access has been taken without challenge. Proving the openness and peacefulness of that use over a long period of time is often where the difficulty lies.

If you are the proprietor whose land is being used as a right of access, then you would do well to challenge that usage to halt rights attaching to your land. If time is against you, then judicial interruption through the raising of court action is the only certain way to stop the 20 years from 

E-Ming Fong is a commercial litigation partner at Harper Macleod LLP who acted for the proprietor at 7 Coates Crescent.