What is a servitude?
A servitude is a real right that runs with the land. It allows a landowner to make use of neighbouring land. Servitudes can be created in a variety of ways, including through express or implied grant or reservation, positive prescription (i.e., by open and peaceable use over a period of 20 years) and inherent right.
The most common type of servitude relates to access and permits a landowner to take over a neighbour's land.
We recently acted for the defenders in the case of Urquhart v Rhind and others where the court examined (some of) the various ways in which servitude rights of access can be created, and the limitations to servitude rights of access which landowners should be aware of.
Background
This case was heard in Elgin Sheriff Court and related to a disputed servitude right of access running across the defenders' land from a public road to a ruined former salmon fishing bothy, owned by the pursuers which is situated on the Moray coast between Burghead and Findhorn.
The pursuers asserted, variously, that they had (i) an express right of access across for pedestrian and vehicular access; (ii) an implied right of access for pedestrian and vehicular access; (iii) an inherent right of access for pedestrians and vehicles as a result of necessity given that the pursuers' land was landlocked; and (iv) a prescriptive right of access for pedestrians and vehicles as a result of the operation of positive prescription.
The defenders argued (i) that any express right of access was limited to the site of the historic site of Rosevalley Farm Steading (i.e. did not extend to the main road as asserted by the pursuers); (ii) that there was no basis for an implied right of access; (iii) that alternative access routes existed to the pursuers' property (including by sea) and, as such, there could be no inherent right of access by necessity; (iv) that any rights of access would have prescribed as a result of the operation of negative prescription (i.e. through lack of use over a period of 20 years); and (v) that any right of access that did exist should be limited to pedestrian access only and did not extend to vehicles.
The existence of a servitude right of access
The Sheriff found that any express right of access in relation to the pursuers' property was limited to the site of the former farm steading but that there had been an implied right of access that extended to the B9809 public road.
The Sheriff went on to find that both the express and implied rights of access had been extinguished by operation of negative prescription and rejected the pursuers' argument that a right of access had been created by positive prescription.
Ultimately, the Sheriff found that the pursuers' property was landlocked (there being no land route to the property other than via the disputed route) and that there was an inherent right of access over the disputed route.
Mode of access
After concluding that the pursuers' property benefited from an inherent right of access, the Sheriff then went on to consider the permitted mode of access over the land in question.
Interestingly, the Sheriff found that the extent of the inherent right of access was to be construed narrowly. The Sheriff rejected the pursuers' argument that they had an unrestricted vehicular right of access over the disputed route and found that any right of access was restricted to use by pedestrians and carts as being "that which was necessary for the comfortable enjoyment of the subjects". In restricting the servitude right of access in this manner, the Sheriff considered it relevant that the subjects were a derelict bothy, that the physical condition of the route did not support a vehicular right of access and that there was no evidence of vehicular use (other than reference to carts in a related deed).
Conclusions
This case serves as a helpful reminder that the nature and extent of any servitude right of access is often not as straightforward as it may appear at first.
It is important for any landowner to consider the possibility that their registered title may not be conclusive as to the full extent of any servitude rights. There may be errors in the title and rights may have been created, or extinguished, by prescription and, as a consequence, other rights of access may become operative (i.e., an inherent right of access where all other rights of access have prescribed).
The Sheriff's decision also highlights the importance of establishing the extent of any servitude right of access as, clearly, not all rights are born equal. The court in this case found that the pursuers' rights were significantly more limited than those argued for by the pursuers.
