The rights and obligations that you may have in respect of your property are not always apparent, as the recent decision in the Scottish case of Compugraphics International Limited v Colin Nikolic [2011] CSIH 34 has highlighted.

Mr Nikolic purchased land adjoining the Compugraphics factory in Glenrothes in 2007, and subsequently asked Compugraphics to remove air conditioning pipes and ductwork attached to their building, that were overhanging his property and supported by metal stanchions embedded in concrete on his land.  After threats to remove the pipework and stanchions, Compugraphics raised an action claiming that they were the owners of the pipes and stanchions or, if they were not the owners, that they had servitude rights to retain the pipes on the basis they had been in position since 1971.

Ownership of the pipework

The pipes had originally been installed by Compugraphics back in 1971, when they were a tenant of the factory.  They bought the factory in 1983 and therefore maintained that they were the owners of the pipes by reason of the 1983 title in their favour, since the pipework structures were part of the factory building as erected, even though they overhung the adjoining ground.  Mr Nikolic argued that, because Compugraphics' title clearly delineated the area they owned, (which did not include the area where the pipework structure was located) they could not acquire ownership of property outwith that title.

Another approach by Mr Nikolic was that it was not competent in law for a person to have separate ownership of pipes above ground, but Compugraphics contested this, saying there were many examples of projections over others' land, such as windows and arches above pends.

The court agreed that the pipes and ductwork were a heritable fixture of Compugraphics' factory and that title to them was included in the 1983 title, giving Compugraphics ownership of the pipes and ductwork even though they encroached into the airspace above Mr Nikolic's land.

Servitudes

So although Compugraphics owned the pipes, they were still located in Mr Nikolic's land, or more correctly the airspace above his land. Were Compugraphics entitled to keep them there? This would require the acquisition of servitude rights to be entitled to maintain the pipework in place.  Mr Nikolic originally argued that Compugraphics had no servitude rights as, in line with his ownership argument, the pipes did not belong to Compugraphics, so no servitude rights could be created.  He went on to suggest that, as there was nothing to stop the pipes being relocated to the roof of the factory, a servitude of necessity could not be claimed either.

It has long been the case that for a servitude to be created by law, it had to fall within a known class or category of right recognised by Scots Law.  The rule for servitudes that are not expressly created is that there is a "closed list" of servitude types, but it is one of the quirks of Scots law that no-one knows exactly what is on that list.  Mr Nikolic's contention was that a servitude of projection was not one of the known types of servitude, and that a servitude of support, which the law does recognise, is restricted to the context of urban buildings and is characterised by an obligation on the lower proprietor to maintain the structure upon which the upper proprietor's building stands, so did not apply to the current circumstances.

Projection and support

However the arguments from Compugraphics held more sway with the court.  They argued that the law was flexible and pragmatic and that there was no objection in any authorities to the recognition of a servitude of projection.  Further, there was no basis for the argument that the servitude of support was only available in relation to one element of a built-up environment obtaining support from another element. A servitude right of projection is one where the owner of a building has part of his building projecting towards the adjoining property, without resting on it, in this case the pipe and ductwork.  A servitude right of support is one where the wall or pillar or other prop of one property is bound to sustain the weight of the buildings or parts of a neighbouring property, in this case the metal stanchions, that held up the pipework.

The court found favour with this argument and agreed that in appropriate circumstances, Scots law does recognise servitudes of projection and support.  While the more cautious approach taken in relation to servitudes implied by law is designed to avoid the situation where a purchaser is taken by surprise by some unusual and unwritten burden affecting their property, in the current circumstances, it was highly unlikely that any physical projection over neighbouring ground would fail to be noticed by a potential purchaser.  In Mr Nikolic's case, the pipes, ductwork and stanchions were permanent, visible and obvious when he purchased the land.

If the previous owners did not seek to have the pipes or the metal stanchions removed, then servitude rights of projection and support could be constituted by the encroaching pipes, ductwork and stanchions having remained in position for the prescriptive period of 20 years without challenge or objection.

What next?

There may still need to be an inquiry into the facts in the Compugraphics' case, and so further procedure in this action may yet take place.  However this ruling as to the law provides a further indication of the elasticity of Scots law in this area.  As in the 2007 House of Lords decision in the "servitude of car-parking" case of Moncrieff v Jamieson [2007] UKHL 42, the law recognises that categories of servitudes that are created by prescriptive use, need to move with the times.  The "closed list" no longer exits for servitudes created by express grant, since November 2004, following on the coming into force of section 76 of the Title Conditions (Scotland) Act 2003.

The judgement also draws attention to section 77 of the 2003 Act, which provides that the right to lead a pipe, cable, wire or other such enclosed unit over or under land for any purpose, may be constituted as a positive servitude, and is deemed always to have been competent.  It has been suggested that this might be another useful line of argument for Compugraphics if the case is remitted back to the Outer House. While solicitors can advise their clients about what is included within their title, they cannot provide guidance about any unusual physical features unless they know of their existence. While site visits can be of considerable help, it is not always practical or viable for one to take place and so it is important that issues of this type are also flagged by the purchaser or their surveyor prior to the purchase of any property so that the implications of any issues can be considered and addressed at an early stage.

To read the decision in Compugraphics International Ltd v Nikolic click here.