ASA International Limited v Kashmiri Properties (Ireland) Limited – creation of servitude right by implied grant
This is an Inner House case considering a dispute as to the existence of a servitude right of access in the title of a property at Coates Crescent in Edinburgh.
Nos. 6 and 7 Coates Crescent had both previously been owned by National Mutual who sold no. 6 in 1994 and no.7 in 1996. ASA subsequently acquired title to number 6 and Kashmiri subsequently acquired title to no.7.
Although no express grant of servitude had been included in the disposition, ASA argued that when National Mutual had sold no.6, a servitude right of access (in favour of no.6) had been granted by implication over a car parking area forming part of no.7 (to a garage and further parking area used by the owners of no.6).
ASA pointed to the following factors in support of their contention:
- there were steps and a gate leading from the rear garden of No 6 into the car park at No 7;
- tenants and sub-tenants at no.6 had used the steps and gate to obtain access from the rear of No 6 across the car parking area of No 7 since at least 1988; and
- the need for effective fire escapes from no.6 across the disputed area.
As such, ASA argued that, when National Mutual separated the ownership of no.6 from no.7, there was an inference or presumption that National Mutual would have intended that a servitude over the car park would be created as an incident of the conveyance.
In the sheriff court, the sheriff rejected ASA’s arguments and found that there was no implied servitude, noting that the crucial question to be considered was whether the alleged servitude was reasonably necessary for the enjoyment of no.6. In the sheriff’s view, whilst use of the servitude was convenient, the evidence produced by ASA did not show it to be reasonably necessary for the enjoyment of no.6 (Although there was evidence that occupiers of number 6 preferred to use the disputed access route through the rear of no.7, it was not far from the garage and parking area used by no.6 to the front entrance of no.6 via the street).
The Inner House refused ASA’s appeal stating that the law should be slow in recognising servitudes by implied grant for a number of reasons:
“First, when property is divided, it is always possible to create servitudes by express grant. If a servitude right is important, it can generally be expected that the matter will be raised in negotiation and that an appropriate clause will be inserted into the disposition. The question of an implied grant only arises where no express provision has been made. Secondly, claims for implied rights inevitably involve a degree of uncertainty, and if an expansive approach is taken to the creation of such rights there is a risk that a substantial number of dubious or even extravagant claims may be made. Thirdly, and more importantly, servitude rights are real rights created over heritable property. In this area of the law certainty has always been regarded as crucial, because of the perpetual existence of such rights. Fourthly, perhaps the most important factor is that real rights bind the whole world, and will be binding on any future purchaser of the servient property. Any such purchaser should be able to discover the existence of real rights easily. Normally this is achieved by express grant and the recording of the relevant deeds in the Land Register. Implied rights, however, do not appear in the Land Register. Thus there are strong policy reasons for restricting the recognition of such rights to cases where their existence is reasonably obvious from the surrounding facts and circumstances. Cases where the right is reasonably necessary for the enjoyment of the dominant tenement can be said to fall into the latter category.”
In this case, although ASA had been able to show substantial use of the route, they had been unable to show that that the alleged servitude was reasonably necessary for the convenient and comfortable enjoyment of no.6.
The full judgement is available from Scottish Courts here:
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 But not for a sufficient period for a servitude to be created by prescription. (ASA also attempted to argue that, because the reason they were not able to rely on prescription for creation of the servitude was that the properties had been in common ownership until 1996, their application for a servitude by implication should be looked on favourably. However, the court found that it had to apply the law relating to implied servitudes on the evidence available.)