LKS Property and Conveyancing Casebook

LKS is now more than 5 years old and, to celebrate, the current version of the LKS Property and Conveyancing Casebook is now available freely available here.

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ASA International Limited v Kashmiri Properties (Ireland) Limited, 23 August 2016 – creation of servitude right by implied grant

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.

Background
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).

Arguments
ASA pointed to the following factors in support of their contention:

  1. there were steps and a gate leading from the rear garden of No 6 into the car park at No 7;
  2. 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
  3. 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.

Decision
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[1] 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.

 All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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[1] 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.)

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Scottish Parliamentary Corporate Body v The Sovereign Indigenous Peoples of Scotland, 5 May 2016 – removal of protestors camping at the Scottish Parliament

This is an Outer House case in which the Scottish Parliamentary Corporate Body sought an order for removal of a group of individuals camped within the grounds of the Scottish Parliament with the stated intension of remaining there until Scotland declares itself an independent country.

Lord Turnbull found that the corporate body was the valid proprietor of the grounds on which the camp was located, that the campers had no lawful right to encroach upon the corporate body’s property and found that arguments made by the campers concerning the impact of the Treaty of Union (leading to the creation of Great Britain) on the provision of the corporate body’s powers by the Scotland Act 1998 had no foundation. Lord Turnbull also rejected arguments based on rights claimed by the campers under The United Nations Declaration on the Rights of Indigenous People of 2007 and, in addition, found that the campers’ occupation of the camp did not fall within rights of access (the “right to roam”) created under the Land Reform (Scotland) Act 2003.

However, Lord Turnbull did find that, as the corporate body is a public body, it is unlawful for it to act in a way which is incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms. As such, it was necessary to consider whether granting an order for removal of the campers was compatible with the rights guaranteed by the convention; in particular article 10 (freedom of expression) and article 11 (freedom of assembly and association). Consequently, Lord Turnbull granted a procedural hearing anticipating that it would lead to a further hearing to consider evidence on the proportionality of granting the order removing the camp (i.e. to allow the corporate body’s right to the removal order to be assessed against the campers right to freedom of expression and freedom of assembly and association).

The full judgement is available from Scottish Courts here.

(See decision on human rights issues here.)

 

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Land Reform (Scotland) Act 2016

An Act of the Scottish Parliament making provision for:

  • a land rights and responsibilities statement (to be reviewed every five years) to contain principles for guiding the development of public policy on land rights;
  • establishing a Scottish Land Commission (to monitor the system governing ownership and management of land and to recommend changes in the public interest);
  • a public register of persons with a controlling interest in land (aimed at improving transparency of landownership);
  • requiring that Ministers issue guidance on the circumstances in which landowners should carry out engagement with the community;
  • empowering communities to buy land where it is necessary to further sustainable development;
  • the application of non-domestic rates to shootings and deer forests;
  • empowering local authorities to change the use of inalienable common good land;
  • additional powers for Scottish Natural Heritage to intervenewhere the management of deer by landowners and occupiers is not delivering in the public interest;
  • amendments and procedural clarifications to be made to the access rights over land  contained in Part 1 Land Reform (Scotland) Act 2003; and
  • reform of the agricultural holdings legislation (aimed at improving relationships and re-dressing imbalances between tenants and landlords).

The Act received Royal Assent on 22 April but further regulations are required to bring the various provisions into force.

The Act is available here.

 

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Some reasons for optimism for Scottish rugby

Notwithstanding yesterday’s disappointment there are a number of reasons to be optimistic about the future of Scottish rugby.

1. Glasgow winning last year’s Pro 12.  Edinburgh becoming competitive, reaching last year’s Challenge Cup final and in contention for a play off place.  I think it is a good thing that both Scottish teams do not automatically qualify for the European Cup.

2. There is now more coverage of Scottish rugby.  Although print media coverage has declined social media coverage is increasing all the time. Glasgow Rugby seem especially keen to use social media.  We in the Borders are also very lucky to have Border Rugby TV.

3. The SRU now seem to be taking women’s rugby more seriously with the appointment of Shade Munro and the amount of resources going into it.

4. Finally we seem to be moving in the right direction as far as regional academies are concerned.

5. Friday’s win for our under 20 team is tangible evidence of the growing number of players we at last have coming through and who seem ready for a career as a professional rugby player.  I suspect a lot of this is down to the work of Sean Lineen.

6.  The appointment of Richie Gray

7. The standard of the premiership continues to improve as does the coaching at that level.  It is now a very competitive league.

8. The news of the increased links with London Scottish is long overdue and could potentially give a number of younger players a great chance to experience a good level of rugby. Again I am glad to see Sean Lineen involved in this. We also need to consider whether the money we put into our national sevens squad could be better spent at London Scottish or on our premiership teams.

9. The Club internationals are a good addition to the rugby calendar.  I personally would still like to see our district teams play in the B&I Cup or have them play each other on the same weekends Edinburgh play Glasgow.

10. At last we have the makings of a Scottish wide competitive youth structure.

11. There seems to be more sponsorship money coming into our professional game and the SRU’s debt mountain could at last be paid off within a few years.

It is just a pity that so many years were wasted by a series of incompetent SRU administrations.

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Merry Christmas and best wishes for 2016 from Legal Knowledge Scotland

Merry Christmas and a Happy New Year to all from Legal Knowledge Scotland.

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(First) Ewen John Macpherson and (Second) Lorraine Mary Anne Macaulay v (First)  Richard Colin Macqueen, (Second) Michael Iain Macqueen And (Third) Yvonne Janette Macqueen, 7 August 2015   -enforceability of contractual obligations contained in missives after the missives ceased to be enforceable

Inner House case considering the enforceability of contractual obligations contained in missives after the missives ceased to be enforceable.

Background
Mr McPherson and Ms Macaulay (the pursuers) sold a house and garden ground in North Connel to the Macqueens (the defenders) whilst retaining some adjacent land on which they intended to build two semi-detached houses. The missives contained conditions obliging the defenders (who also owed an adjacent property) to convey a strip of land to the sellers and also to grant a servitude right of access over an additional strip of land. The missives incorporated the Combined Standard Clauses (2009 edition) which include a clause providing that the missives will cease to be enforceable after 2 years.

Arguments
The pursuers sought an order for specific implement in order to compel the defenders to convey the strip of land and grant the servitude. The action was raised outwith the 2 year period and the defenders argued that it was time barred (as the obligations were either part of the missives or collateral to them and consequently ceased to be enforceable when the missives ceased to be enforceable). That argument was rejected in the sheriff court; the sheriff taking the view that the obligations to convey the strip and grant the servitude formed a separate contract to the sale of the house and garden (albeit recorded in the same document).

Decision
However, the Inner House allowed an appeal of the sheriff’s decision. The court agreed with the defender’s contention that the obligations to convey the strip of land and grant the servitude formed part of the overall consideration (in addition to the purchase price of £245k) and, as such, were an intrinsic part of the contract for the sale of the property and became time barred when the missives ceased to be enforceable.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

 

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LKS Style Bank – corporate styles

The LKS style bank now has a corporate section which includes new articles, dividends and a shareholder agreement.

The styles have been drafted by Iain Taylor of  e-corporate. You can access them here or from or from the styles menu on our home page.

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New styles

The latest additions to the LKS style bank are:

1.3.4.3​ -​ Offer by landlord take renunciation of lease from tenant and grant new lease to tenant​​
1.3.3.2​ – Offer by assignee to take assignation of lease from assignor​.​

These are available to our subscribers here and for individual purchase here .

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LKS Style Bank – new corporate styles added

We have added a new corporate section to our styles bank. The section includes new articles, dividends and a shareholder agreement.

The styles have been drafted by Iain Taylor of  e-corporate. You can access them here or from or from the styles menu on our home page.

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