Exercising access - getting it right

Much has been written in the press recently about the extent of the public's entitlement to exercise rights of access over land owned by others, under the so-called "right to roam" legislation. Such rights can be exercised for recreational or educational purposes, or for commercial activities of a type which can also be carried on uncommercially.  But what about exercising rights of access to get to your own land over someone else's property?

28 June 2006

Much has been written in the press recently about the extent of the public's entitlement to exercise rights of access over land owned by others, under the so-called "right to roam" legislation. Such rights can be exercised for recreational or educational purposes, or for commercial activities of a type which can also be carried on uncommercially.  But what about exercising rights of access to get to your own land over someone else's property?

Such rights, known as "servitudes", are a fundamental aspect of property law, and have been in existence for hundreds of years. Despite that, there are still issues and misunderstandings about their impact and effect, as three recent cases demonstrate.

What is a servitude?

A servitude is a burden which affects particular land or buildings, for the benefit of other land or buildings.  The property that is burdened with the servitude must permit the owner of the benefited property to exercise certain rights, for example access, over the burdened property, for the benefit of the benefited property.  The burdened property and the benefited property have to be in different ownership for a servitude to exist, although it can be created while both properties are in the same ownership, but in that case the servitude only becomes effective on ownership of one of the properties passing into different hands.

A servitude may be created in several different ways.  There can be an express grant or reservation in a written deed or document.  A servitude can also be created by implication, in situations where two properties which previously belonged to the same person become separate, and a servitude right over land which is necessary for the use of the other property, such as access, has not been created or reserved.  It is also possible for a servitude right to be created through the acquiescence of the owner of the burdened property, although this will not merely be by inaction on the part of the burdened owner, and will generally require some tacit or other approval, acknowledgement or knowledge of the exercise of the right. A  servitude can also arise through a process known as positive prescription, by which the right is acquired through use for at least 20 years openly, peaceably and without judicial interruption, and a servitude can also be extinguished through non-use for the same period.

In all three of the cases in question, the servitude had been expressly created in a document, which you might think should mean there would be less scope for doubt or confusion as to the effect or validity of the rights…..

When does the right begin?

In the Sheriff Court case of Peart v Legge, a piece of ground had been conveyed to Mr Legge's father in 1981, along with a servitude right of access to the ground by a lane or track, but subject to the provision that he would be entitled to breach the existing wall on the north west boundary of the piece of ground, subject to getting approval for the work, making good the wall where necessary, and inserting gates or doors in the wall.

The right of access had not been used since the original grant, nor had the wall been breached, and therefore Mr and Mrs Peart, who owned the land on the other side of the wall, over which the right would be exercised, argued that the servitude had extinguished, because of non-use for more than the requisite prescriptive period (20 years). On the face of it, as servitudes can extinguish by prescription, this would seem to be a fair assumption to make.

However, the relevant law (the Prescription and Limitation (Scotland) Act 1973, Section 8) provides that the 20 year prescriptive period applies, provided the right is not one which is specified in the Act as being imprescriptible, and one example of this is a right that can be exercised res merae facultatis (that is, one that can be exercised at will, and does not prescribe if it is not used). Because of the particular circumstances in this case, Mr Legge argued that the right was a res merae facultatis, because before the right of access could be exercised, the wall had to be breached, and this had not yet happened. It was therefore a future right, which could not be exercised until the opening in the wall had been formed. This had obviously been in mind at the time of the grant, which provided for approval to be obtained from the adjoining proprietor when work to the wall was to be carried out - this clearly implied that the right was not to be exercised immediately. Mr Legge was able to rely on the authority of an earlier case, (Smith and Others v Stewart (1884) 11 R 921), where the circumstances were very similar, and the right in that case was held to be an imprescriptible res merae facultatis.  The court agreed and found in favour of Mr Legge.

While the circumstances in this case are rather unusual, it serves as a timely reminder that there are certain property rights that do not prescribe, and that rights of this type which are dependant on some other event happening before they come into effect, can still apply, despite the passage of many years without any action being taken.

The full text of the Peart case is available on the Scottish Courts Website at: http://www.scotcourts.gov.uk/opinions/A5011.html

Has the servitude actually been created?

In the case of Candleberry Limited v West End Homeowners Association, Candleberry were seeking to establish that they were entitled to a servitude right of access for vehicular and pedestrian access over a path belonging to the West End Homeowners Association, who were disputing this entitlement, and had obstructed the route by placing boulders and bollards on the path.

Candleberry's land was included in a larger area of ground, affected by a deed of conditions which provided that each proprietor of land within that area was to have a right of access for vehicular and pedestrian purposes over the public areas, including the path, shown marked out on a plan.  However, when Candleberry's title was first conveyed separately, although the deed of conditions was referred to, for the burdens it imposed on the land, no mention was made of the rights it granted, as a pertinent of the land being conveyed.

Despite the generally held view that the servitude right would apply to the Candleberry land, both the Sheriff and Sheriff Principal had previously refused Candleberry's application for interim interdict to stop the Homeowners Association from obstructing the path, on the basis that mention of a right of access in a deed of conditions in itself does not operate as a grant of that right of access in favour of a particular purchaser, unless it it is also incorporated into a subsequent conveyance.

However, following appeal to the Court of Session, and no doubt to the relief of many conveyancers, the judge concluded that the inclusion of the relevant section of the deed of conditions in the burdens section of both parties' title was sufficient to establish a valid servitude right of access.

Since the events in this case, it is now beyond doubt that a servitude can be created in a deed of conditions, following the enactment the Title Conditions (Scotland) Act 2003, which provides that while a deed creating a positive servitude will always have to be registered against both the benefited and burdened properties, it is possible for such a right to be created when the same person owns both, although it will not come into effect until ownership of the properties is separated.

The view of the judge was that anyone looking at the title of either a burdened or a benefited property would have their attention directed to the provisions of the deed of conditions, and would be able to see whether it conferred any servitude rights of access on the individual proprietors. That said, it is good practice to refer in any conveyance to both rights and burdens that are set out in burden writs such as deeds of conditions.

The full text of the Candleberry case is available on the Scottish Courts Website at: http://www.scotcourts.gov.uk/opinions/2006CSIH28.html

Are the terms of the servitude too wide?

Finally, in Skiggs v Adam, the court considered the meaning of the grant of a servitude right of access "for all necessary purposes" to and from Mr and Mrs Skiggs’ property by a private roadway, which ran along the northern boundary of their property. The roadway was owned by Mr and Mrs Adam, whose view was that the words "for all necessary purposes" were too vague to be given effect, and that the servitude right was essentially meaningless.  In particular, of course, they were looking to prevent use of the access for vehicular purposes.  In support of their argument, they referred to an earlier case in which it had been decided that the use of the words "all necessary and usual agricultural purposes" in a grant of a servitude right was too wide in application, and that the wording in this case suffered from a similar defect.

The judge however took the opposite view, and adopted the approach that in the case of an express grant of servitude, so long as the terms are clear and unambiguous, the court must interpret the specific clause in dispute, without the requirement to look to surrounding conditions prevailing at the time.  In this case the judge considered the wording constituted an express grant of a servitude right of access in favour of Mr and Mrs Skiggs' property, and was sufficiently wide to encompass both pedestrian and vehicular access.  Any restriction related only to the purpose of the servitude, not the form of access.

While this decision is reassuring, it does highlight yet again, the importance of careful and clear drafting, particularly when specifying rights that are central to the use of property, to avoid any suggestion of ambiguity or invalidity.  It should be clear at the time of drafting what use and purpose is in the contemplation of the parties, and in particular whether access is to be by foot only or whether use by vehicles is intended or permitted, and the appropriate words should be included in the grant.

The full text of the Skiggs case is available on the Scottish Courts Website at: http://www.scotcourts.gov.uk/opinions/2006CSOH73.html