Sheriff court case concerning an alleged servitude right of access over a property in Aberdeen. In 1992 Jessie Sharp granted a disposition of a small area to the owner of the neighbouring property (her brother, Peter Sharp) in which she purported to reserve a right of access over the property to any garage to be built on the part she retained. No garage was built until her successors in title, the Gardens, built one in 2010. However, the Arrowsmiths (the successors in title to Peter Sharp) argued that the clause in the 1992 disposition created only a personal right between Jessie and Peter Sharp which did not transmit to their successors in title. They contended that, without a garage, there could be no servitude right as the purpose of the servitude could not be achieved.
The sheriff principal rejected that argument finding that the 1992 disposition did create a heritable and irredeemable servitude right of access over the Arrowsmiths’ property. The clause satisfied many of the common requirements for the creation of a servitude. Although the word "servitude" was not used, that is not fatal to the creation of a servitude and the clause contained a reference to successors in title and an obligation to insert in future transmissions. There also was an express declaration that it was a “real and preferable” burden, the deed did not expressly exclude the constitution of a servitude and there were no indications that the right was intended to be personal. Further, the sheriff principal took account of the fact that the garage was likely to be a permanent construction when coming to the conclusion that it was likely that the parties had contemplated that the right would continue for the benefit of singular successors.
The full judgement is available from Scottish Courts here.