Servitude rights of vehicular parking - the right to park on land, although not specifically provided for in ownership deeds - has been the subject of much discussion in the courts. The issue reached the House of Lords in Moncrieff v Jamieson, which held that a servitude right of vehicular parking was capable of existing in law as an ancillary right to a primary servitude right of vehicular access.
A recent Sheriff Court decision provides further guidance. It suggests, as many already believed to be the case following obiter comments in Moncrieff, that a free standing servitude of parking can exist in circumstances independent of and irrespective of the existence of a primary servitude right of access over property.
The Pursuer owned land which was bordered by a narrow strip of ground (“the strip”) owned by the Second Defender. The Pursuer argued that it and its tenants had parked vehicles, including lorries, on the strip for 20 years. It sought an order from the Court declaring that it had a servitude right to park vehicles there, together with an accessory right to access the strip on foot and by vehicle. It argued this right had been created by positive prescriptive possession i.e. use without disturbance for more than 20 years.
The case raised a number of interesting issues including:
(1) whether Scots law recognises a “freestanding” servitude right of vehicular parking, being a servitude independent of, and not ancillary to, the primary right of vehicular access over the strip of land; and
(2) whether such a purported servitude right was at odds with the Second Defender’s ownership of the land both under common law and under the Title Conditions (Scotland) Act 2003 (“the Act”).
The Sheriff decided that a “freestanding” servitude right of vehicular parking, separate from and not associated with any principal right of access, could competently exist in Scots law. This was because it was similar in nature to the type of ancillary servitude right of parking now recognised by virtue of the decision in Moncrieff (albeit the judges in Moncrieff had not explicitly approved such a right), and also to other recognised categories of servitude.
In relation to the second issue, the Second Defender argued that the Pursuer’s purported right of parking and access could result in its property being covered by vehicles all day, every day, excluding it from any practical enjoyment or use of the strip - and hence ‘repugnant’ to its ownership. They argued that that section 76(2) of the Act had superseded the relevant dicta in Moncrieff as to what might constitute the repugnance principle.
The Sheriff did not agree. His view was that the partial or total exclusion of the Second Defender from mere physical occupation of the land in question did not prevent the Pursuer’s asserted right from being a servitude. He placed reliance on the fact that a similar argument had been dismissed in Moncrieff. In his view the Act was not intended to be a wholesale codification and restatement of the law regulating servitudes. Neither s 75 or 76 of the Act were relevant to the issues in dispute in the present case.
However, the Sheriff felt it was premature to dispose of the first issue without leading evidence about the requirements for the creation of a prescriptive servitude. The case will now proceed to a full hearing, requiring witness testimony and evidence.
The case is confirmation that the “fixed list” of prescriptive servitudes in Scotland is not closed to new entrants. We await the court’s decision following the full hearing with interest.