Case concerning rights to air conditioning apparatus overhanging a neighbouring property. In 2007 Mr Nikolic bought land neighbouring Compugraphics factory at Eastfield Industrial Estate in Glenrothes. He asked Compugraphics to remove the overhanging pipes, ductwork and supporting stantions (which had been in place since 1971) from his land.

Compugraphics raised an action claiming that either (1) they owned the pipes and were entitled to retain them in place free from interference by Mr Nikolic or alternatively (2) that they had a servitude right to retain the apparatus in place.

An Extra Division of the Inner House found that although the title contained a clear and unambiguous bounding description under which Mr Nikolic owned the solum of the path the apparatus was overhanging, the apparatus which protruded into Mr Nikolic’s airspace was a fixture of the factory which had been conveyed to Compugraphics. The court did not accept that the apparatus could remain in Mr Nicolic’s airspace as of right by virtue of constituting a separate heritable tenement. However, it was possible that Compugraphics had obtained servitude rights by prescription allowing them to retain the apparatus in position.

In coming to this conclusion the court confirmed that Scots law recognises servitude rights of both projection and support. Moreover, the servitude of support was not limited to support between buildings (as is commonly encountered in flatted properties) but could also extend to support by pillars or posts in the ground.

It was also noted as an addendum that s77 of the Title Conditions (Scotland) Act 2003 which provides for a positive servitude of leading pipes over or under land may also assist in resolving the dispute.

Scottish Courts, 20 May 2011

http://www.scotcourts.gov.uk/opinions/2011CSIH34.html