The Inner House of the Court of Session has refused an appeal by ASA International Limited, who sought declarator that the property which they owned at Coates Crescent Edinburgh benefited from an implied servitude right of access over a rear car parking area.

Background
The action was brought by ASA who are the owners of a townhouse, 6 Coates Crescent, which includes garden ground and a garage to the rear backing onto William Street South East Lane. No 6 and the adjacent townhouse No. 7 had previously been in the same ownership but since 1996 have been in separate ownership.

The servitude right of access was sought over the rear ground of the adjacent townhouse, No.7 Coates Crescent owned by Kashmiri.

In summary of the physical layout, steps leading from the garden ground in No. 6 to its garage are located next to a wall and fence which divide the ground to the rear of Nos 6 and 7. At the top of the steps there is a gate in the fence which leads from the steps and ultimately the garden ground to the car park behind No. 7. ASA sought declarator that they had an implied servitude right of access by means of the car parking area at the rear of No. 7 between the gate leading from the steps at the back of No. 6 through the car parking area behind No. 7 and then on to William Street South East Lane.

At the time when Nos. 6 and 7 were sold separately, no express grant of servitude was included in the Disposition of No. 6.

The Dispute and factors argued by ASA
These were broadly as follows:

  1. The physical configuration of the steps and gate leading from the rear garden at No. 6 into the car park at No. 7 inferred that the No. 7 car park was intended to be used for No. 6’s rear access to the lane.
  2. ASA’s tenants and former tenants of No 6 had used the steps and gate to obtain access from the rear of No. 6 across the car park at No. 7 since at least 1988. This access was taken as a short cut to get to the takeaway food shops in William Street or to go for drinks after work.

Legal tests considered
The question was, when there has been a division and sale of a property, in what circumstances there can be an implied servitude right of access granted over the retained part. Can a servitude be created by grant implied by the facts and circumstances dividing the property? What was the presumed intention of the parties?

The court reiterated the test that must be met before a servitude will be created by implied grant, found in Ewart v Cochrane 1861, 23D (HL) 3:

  1. The servitude right must have been used by the benefited proprietor; and
  2. The servitude right must be necessary for the convenient and comfortable enjoyment of the benefited property.

The court was clear, in relation to part 2 of the tests, that necessary does not mean necessity. It made a distinction between servitudes created by implied grant and servitudes of necessity. Servitudes of necessity apply particularly to landlocked sites, where a right of access is necessary to enable the property to be used at all. Servitudes created by implied grant may exist, however, in circumstances where they are not strictly necessary for the use of the property.

Servitudes bind future property owners – any purchaser should be able to discover the existence of a real right easily. Implied servitude grants do not appear on the title. The Court stated that there are strong policy reasons for restriction and the recognition of such rights to cases where their existence is reasonably obvious from inspection.

Decision
The Inner House considered that the law should be slow in giving recognition to servitudes created by implied grant. Ideally, servitudes should be achieved by express grant and registration of the relevant deed in the Land Register and the court had little difficulty in refusing to find a servitude right of access in favour of ASA’s property. Whilst each case will turn on its own facts and circumstances, it is not difficult to see the court’s rationale in this case. The test of reasonable necessity fell because convenient alternatives (via the main entrance on Coates Crescent) were available. Access through the gate and across the car park at the back of No 7 was not reasonably necessary for the convenient and comfortable enjoyment of No 6.

The case serves as a useful reminder of the high test applied to the creation of servitudes by implied grant and makes clear that the court will be reluctant to imply such a servitude except in very specific cases.

Other servitude cases
Servitudes have been to the fore recently in the courts. In the case of The Firm of Johnson, Thomas and Thomas and Others v Thomas Smith, T G & V Properties Limited and Others, the Sheriff at Glasgow and Strathkelvin considered (on 28 July 2016) that a “freestanding” servitude right of parking (being a right that is not ancillary to a right of access) can competently exist in Scots law. The Sheriff has fixed a proof before answer and it will be interesting to see how this case develops. Such a development could extend the judicial recognition of the servitude right of parking beyond the judgement in the case of Moncrieff v Jamieson decided by the House of Lords in 2008. In Moncrieff, it was recognised obiter that in Scots law a servitude right of parking could be possible as a standalone right.