A recent Inner House decision revisits implied servitudes in Scots law and sets out the issues which should be considered when determining whether there has been an implied grant of a servitude right when a property is divided.
The Appellant was the owner and occupier of 6 Coates Crescent, Edinburgh (Number 6) and the Respondents were the owners and occupiers of 7 Coates Crescent, Edinburgh (Number 7).
The proprietors of Number 6 have been taking pedestrian access over a car parking area at the rear of Number 7, between a gate leading from steps at the back of Number 6 through the car parking area behind Number 7 and on to William Street South East Lane which runs along the back of the properties in Coates Crescent since at least 1988. Number 6 and Number 7 were separated in 1994.
The main entrance to Number 6 is the entrance at the front, from Coates Crescent and not from William Street South East Lane and across the car parking area behind Number 7.
The Appellant asserted that it has an implied grant of a servitude right of access through the gate between Number 6 and Number 7 and across the car parking area at the rear of Number 7.
Legal Principles and Policy Considerations
The dispute arose out of the division of the property and the question to be considered was whether, when a heritable property is divided, conveyance of one part of the property carries an implied grant of a servitude right over the retained part.
It is accepted in Scots law that a servitude can be created by a grant or reservation implied from the facts and circumstances surrounding the conveyance dividing the property.
Previous case law establishes that both prior use and reasonable necessity for comfortable enjoyment are normally required before a servitude right can be implied from facts and circumstances. It was noted that due to the general presumption in favour of freedom of the servient property and the uncertainty of implied rights, the law should be slow in recognising the creation of servitudes in this manner. Recognition of implied servitudes should be restricted to cases where their existence is reasonably obvious from the surrounding facts and circumstances.
The strongest argument for the implied grant of a servitude right of access through the gate and across the car parking area at the rear of Number 7 arose from the physical configuration of Number 6 and Number 7 before they were divided in 1994 and the evidence of substantial use of that route. Use was not, however, continuous and the main access to Number 6 is from Coates Crescent so what was involved is a secondary access route.
Access through the gate and across the car park at the back of Number 7 is not reasonably necessary for the comfortable use and enjoyment of Number 6. The test of reasonable necessity failed because a convenient alternative is available. There was substantial use of the route in question but this was not enough. The evidence for necessity was much less compelling.
If a heritable property is being divided, the parties need to think about all rights which will be required over the other property to ensure that the properties can be used independently of one another. This should be raised as part of the negotiation and appropriate clauses should be inserted into the contract and disposition to avoid disputes like this arising. Reliance should not be placed on implied servitude rights except as a last resort.
ASA International Limited v Kashmiri Properties (Ireland) Limited and Tuli Investments  CSIH 70, 23 August 2016