Let the right one in: Prescriptive servitudes

Vampires might have to ask for permission before they cross the boundary of your land, but it’s possible that your neighbours don’t.

In Scots law, there can be exceptions to the starting position that an owner is entitled to use their land as they see fit. For example, a ‘servitude’, which is a ‘real right’ that allows the owner of one property to do something on, or in relation to, another one. Often, the thing that is allowed is for someone to pass through a neighbour’s land.

Legally, the right attaches to the land, and this is very significant. It means that if the neighbouring land is sold, the new owner will have the same access right as the previous one did. And whereas a personal licence binds only the person who granted it, a servitude will also remain in place if the land being accessed changes hands.

Servitudes can be created in several ways. Perhaps the most contentious is ‘prescription’. As an example, imagine a path that passes through private land; if someone has been using that path for the benefit of a neighbouring property, and alleges that their use meets the legal test for creation of a prescriptive servitude – i.e. that the use has been for a continuous period of twenty years, openly, peaceably and without judicial interruption, as if a right existed – there may be little a landowner can do to challenge the existence of a prescriptive servitude right and prevent their neighbour from accessing their land.

Little, but not nothing. You can see how this legal test might be problematic if there is very little evidence in support of it, or if there is a doubt about whether the test is met and there are therefore ways that the owner of a property subject to an alleged prescriptive servitude may be able to drive a stake through the heart of a legal claim.

One involves the phrase ‘continuous period’. How frequent do individual instances of access have to be before this becomes ‘continuous’? Courts have given different answers, based not only on the frequency but also the reasons why the access was needed. For example, in Scotland v Wallace it was held that twice-yearly deliveries of garden necessities were sufficient to establish a servitude. But in Soulsby v Jones, the court found that more regular access to inspect, repair and clean a house did not meet the necessary standard.

Another relates to the fact the property owner who wishes to establish that a servitude has been established does not have to rely only on their own behaviour. They can also point to access by tenants, employees, executors, or any other person who represents owner of the property seeking to benefit from a prescriptive servitude. But successfully evidencing this can be tricky, as a court will scrutinise all claims.

The word ‘openly’ can also be a turning point in disputes. The person wishing to establish the servitude will need to show that the previous access was done in a way that would come to the attention of a reasonably diligent landowner. This can be particularly tricky when the access in question is of a nature that is not naturally visible, such as underground pipes.

Last – but by no means the end of the story – is the ‘as of right’ test. This refers to whether or not the use was with the permission or tolerance of the owner of the property burdened by an alleged prescriptive servitude. As well as Soulsby v Jones, it was looked at closely in a recent case in the Sheriff Appeal Court, AC & IC Fraser & Son Limited v Munro.

The roots of the dispute were planted in 1996, when a Mr Roderick Munro sold a part of an area of land that he owned. The plot that was sold contained a petrol filling station; the remaining land, called Smithy Croft, contained Mr Munro’s home. He reserved a right of vehicular access across the split off area, so that people could get from Smithy Croft to a main road.

However, another access route also existed: a pedestrian-only path that gave a short-cut to the same public road. Mr Munro did not seek to reserve a formal right over this area when he sold the petrol station in 1996 (despite evidence showing that this access had in fact already been used for some time). Following the sale, a verbal agreement was reached between the parties that Mr Munro could continue to use the pedestrian short-cut despite not having a formal express right.

The key question in the litigation was whether a servitude had been created, by operation of prescription, that allowed pedestrian access over the second path. The sheriff at first instance decided that a prescriptive right had indeed been created. The pedestrian access had been a route in existence since before 1996, and permission had been given by the petrol station owners at the time.

However, this decision was unsurprisingly overturned on appeal. The appeal court said that, because permission had been granted, the access was not taken “as of right”. The appeal court also noted that Mr Munro (now deceased) had passed ownership of Smithy Croft to his son Gordon in 2011. Because the agreement between Mr Munro and the owners of the petrol station had been personal, it did not transmit to Gordon. As a result, the period of possession by Gordon between 2011 and the date of the court case could not be on the basis of the personal arrangement entered into by the father, it was thus “as of right” but the requisite 20-year period had not been achieved.

Conclusion

Unlike vampires, people can use servitudes without permission, and if a neighbour’s use of a path across your land has gone on for 20 years without permission, you may find that this situation never dies. The lesson for landowners is to look closely at who is crossing their land, how long they’ve been doing it, and on what basis – before their use quietly becomes permanent.

If you have any questions about the issues discussed in this article, please get in touch with a member of our Rural Disputes team.

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