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.

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:

  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.

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.


[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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The Firm of Johnson, Thomas and Thomas and others v Thomas Smith and T G & V Properties Limited and Clyde Gateway Developments Limited, 28 July 2016

Sheriff court case considering the existence of a servitude right of parking.

Johnson, Thomson and Thomson owned an area of land in Rutherglen (part of the Cuningar Loop) which was used as a residential site for showmans’ caravans. They sought declarator that they had a servitude right of parking over a narrow strip of vacant ground owned by T G & V Properties Limited. JT&T argued that the right had been created by prescription as they and their tenants had parked vehicles on the strip openly, peaceably and without judicial interruption, for over 20 years.

The case raised the following preliminary questions for the court:

  1. whether Scots law recognises a “free-standing” servitude right of vehicular parking (i.e. an independent right which is not merely ancillary/secondary to a primary right of vehicular access); and
  2. whether such a right (which could be unlimited as to the number and type of vehicles to be parked there, and potentially covering the whole of the burdened property at all times) is repugnant[1] with ownership of the servient tenement.

Free standing right of parking?
After considering the authorities, the sheriff found that Scots law does recognise a free-standing servitude of parking. Although servitudes created by prescription[2] require to be “known to the law” (there is some times said to be a “fixed list” of servitudes), that requirement has some flexibility to deal with changing circumstances and modern conditions. As such, servitudes rights can be acceptable where they are “similar in nature” to existing known servitudes. The sheriff considered Moncrieff v Jamieson[3], in which it was found that a servitude right of vehicular parking could exist as ancillary to a servitude of access. The sheriff noted that, although it was not the point the case decided, the judgements had indicated in passing that a free-standing right of parking could exist and the sheriff could think of no compelling reason why a right of parking should be confined to an ancillary status:

“In summary, while I acknowledge that Moncrieff does not represent a strictly binding judicial recognition of the existence of a free-standing servitude right, in my judgment the debate on this narrow issue is ended for all practical purposes by the overwhelming current of eminent obiter dicta in that case.  It is futile to stand Canute-like against it.  From Moncrieff, it is but a short skip in logic to conclude, by analogy with the ancillary right recognised in that case, that an independent free-standing servitude right is, at least, similar in nature thereto.”

Repugnant with ownership?
T G & V and the other defenders argued that the alleged servitude was repugnant with their ownership of the servient land because the exercise of the right could result in the entire area of the servient tenement being covered by vehicles, every day and all day, thus excluding them from any practical or realistic enjoyment or use of their land. However, the sheriff took the view that the repugnancy issue was not engaged in this case and referred to the judgements in Moncrieff which pointed out that many well known servitudes involve structures being erected or objects being placed on the servient land. The sheriff pointed to Lord Stott’s test in Moncrieff which asks whether the servient owner retains “possession and control” of the servient land”:

“For my own part, I see much force in Lord Scott’s reasoned articulation of the repugnancy principle.  A servitude right of parking may well substantially restrict the rights of the owner of the servient tenement and the uses to which, from time to time, he can put the surface of the land, but his rights as proprietor are not sterilised.  He can build over the servient tenement, he can build under it, he can advertise on hoardings around it, or otherwise utilise the boundary walls.  Indeed, he can park on it himself, or use it for any other purpose, provided he does not interfere to any material extent with the reasonable exercise of the servitude right by the dominant proprietor.  The servient proprietor may not have physical occupation of the surface of the land when the servitude right is being exercised, but he remains the owner of the land, he remains in control of it, he remains in (legal) possession of it, and he is at liberty to exploit its residual uses.”

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.


[1] i.e. so restrictive that the value of ownership would be lost. Servitudes which are repugnant with ownership are not permitted in terms of s76(2) of the Title Conditions (Scotland) Act 2003.

[2] Servitude rights constituted by express written grant no longer require to be of a known type as a result of section 76(1) of the Title Conditions (Scotland) Act 2003.

[3] Moncrieff v Jamieson 2008 SC (HL) 1.

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William Tracey Limited v SP Transmission Plc, 19 January 2016  – Whether power cables amount to encroachment entitling land owner to damages from licence holder

Outer House case in which William Tracey sought damages from SP Transmission in respect of overhead power cables and other equipment running through William Tracey’s site in Linwood which William Tracey argued amounted to an encroachment on the site.

William Tracey occupied the site as a tenant (of the William Tracey Private Pension Fund) from 1997 and then as the proprietor from 2006.

Prior to 1997, the site was owned by Thomas Houston & Son (Johnstone) Limited. Thomas Houston had agreed a wayleave in favour of Scottish Power plc allowing installation of the equipment on the site.  However the wayleave conferred only a personal right on Scottish Power and did not bind successor owners of the land. SP Transmission contacted William Tracey seeking to agree a wayleave in respect of the equipment in 2005 but William Tracey refused to grant the wayleave.

In December 2010 William Tracey issued a notice requiring SP to remove the equipment from the site (following a procedure contained the 1989 Act[1] which provides for the situation where ownership has changed and a wayleave is no longer binding on the landowner). Using powers available to it under the 1989 Act[2], SP then applied for a “necessary wayleave” which allows a licence holder to obtain a wayleave from the Scottish Ministers where the owner or occupier refuses to grant the wayleave voluntarily. The necessary wayleave was granted by the Scottish Ministers in August 2014.

William Tracey argued that the necessary wayleave only had effect from August 2014 onwards and, as such, that it was entitled to damages in respect of the encroachment of the cables and equipment on its property between 1997 and August 2014.

Lord Brodie rejected that argument and dismissed William Tracey’s action. In doing so, he agreed with SP’s contention that, having regard to the wording used, the correct interpretation of the 1989 Act is that, when a change in ownership means that a wayleave ceases to be binding on an owner of land, the wayleave is nevertheless continued meaning that keeping the equipment on the property is lawful and not an encroachment. If the landowner wishes to bring that temporary state of affairs to an end, its only remedy is to give notice requiring removal of the equipment[3].  Following receipt of the notice the licence holder can then, if it requires, apply for a necessary wayleave from the Scottish Ministers (which may or may not be granted).

Lord Brodie also noted that, if William Tracey’s argument were correct, it would mean that, where landowner refuses to agree a wayleave with a licence holder, a delictual liability could be imposed on a licence holder doing no more than complying with its statutory duties. Moreover, in some cases, that liability would be unknown to, and unavoidable by, the licence holder.

The full judgement is available from Scottish Courts here.


[1] Electricity Act 1989, sched 4, para 8 (1) and (2)

[2] Sched 4, para 6.

[3] Under para 8(2) of sched 4 and as William Tracey did.

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Gordon Munro v Walter Finlayson and Catherine Finlayson and Gareth Ince and Emma Bilsland, 30th January 2015 –  whether an encroaching proprietor could be entitled to retain an encroachment on the basis of the “Anderson v Brattisanni’s principle”

Sheriff Court case concerning a property dispute between two neighbours in Contin near Strathpeffer. Mr Munro sought declarator that he owned a small piece of ground (described in the case report as “wedge” shaped) between his property and that of Mr and Mrs Finlayson. The Finlaysons occupied the disputed area as a driveway and garden ground and Mr Munro sought an order removing them from it and an interdict to prevent them from using it in the future.

The sheriff granted declarator to the effect that Mr Munro owned the land but the order removing the Finlaysons from the land was restricted so as to allow the Finlaysons to take vehicular access over the driveway and allow a reasonable turning circle within the garden. The sheriff restricted the order for removal on the basis of the “Anderson v Brattisanni’s principle” which he found entitled the court not to grant an order for removal against a person encroaching on another’s land where:

  • the person encroaching has acted in good faith;
  • the extent of the encroachment is inconsiderable;
  • the encroachment does not materially impair the proprietor in the enjoyment of his property; and
  • an order for removal would cause the encroaching party a loss wholly disproportionate to the advantage which it would confer upon the proprietor.

Mr Munro appealed against the restriction. He argued that the Anderson principle applied to situations where a structure had been erected on the land rather than where, as with this case, no structure had been built. If he was wrong and the principle did apply, Mr Munro argued that the sheriff had not applied it properly.

The Sheriff Principal allowed the appeal[1] finding that, although the principle did apply (as there had been encroachment in the building of a driveway and yard), the sheriff had not applied the principle properly. He found that the principle was one which had to be used exceptionally and sparingly and that, in that context, the creation of what would essentially be a servitude right across Mr Munro’s land would be “a step too far”. (If the principle were to be extended to such cases it should be extended in a superior court.)

The Sheriff Principal also agreed with arguments by Mr Munro to the effect that, if he were obliged to keep the disputed land clear (to allow access for the Finlaysons), it would prevent his use of it (noting that it was a necessary inference of the sheriff’s findings that the land could be used for parking and storage) and, as such, the encroachment could not be said to be inconsiderable. The sheriff had found that, if the Finlaysons had to be removed from the property, they would have to incur considerable expense in constructing an alternative access which would be “entirely disproportionate” to the “very marginal benefit” to Mr Munro if they were not to be removed from the property. However, the Sheriff Principal noted that the suggestion that the property provided no benefit to Mr Munro contradicted the sheriff’s earlier conclusions and, more importantly, that, in describing the issue as one of “marginal benefit”, the sheriff had applied the wrong test; the correct test being one of “material impairment”.

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.


[1] The Sheriff also summarised the current law relating to the “Anderson v Brattisanni’s principle” as follows:

  1. The principle is part of the law of civil remedies, not the law of property. In its application it creates no new rights; it merely prevents the proprietor from exercising a right;
  1. The principle is an exception based on equitable considerations. (Indeed, in Grahame v Magistrates of Kirkcaldy the Lord Chancellor compares it favourably to the law of equity as practised by the English Court of Chancery (at p 96).);
  1. The party seeking its application must have acted in good faith, or as in Grahame v Magistrates of Kirkcaldy not done so but thereafter had taken steps to remedy its previous failings;
  1. The principle will be applied only sparingly and in exceptional circumstances;
  1. It has, to date, been applied only in cases where the encroachment was by a physical thing, such as a gable wall or an extractor flue attached to a wall;
  1. The encroachment must be inconsiderable and does not materially impair the proprietor in the enjoyment of his property, by which is meant his property as a whole and not the piece of ground which has been encroached. Indeed, in all the authorities before Anderson v Brattisanni’s the piece of ground upon which the thing was constructed was lost altogether;
  1. Its removal would cause to the encroacher a loss wholly disproportionate to the advantage which it would confer upon the proprietor. In calculating that advantage the court will take into account whether or not the encroaching party has offered compensation or, if not, whether it is open to the court on the evidence to fix a value for reasonable compensation;
  1. Future as well as past economic loss will be taken into account.
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Robert Oscar Sidebottom and Susan Irene Sidebottom v. Mr James Jonathan Green and Mrs Pamela Helen Green and Sir George Ian David Forbes-Leith, 16 May 2014 – whether servitude established by prescription

Sheriff Court case considering whether a servitude right of access had been created by prescription. Mr and Mrs Sidebottom sought declarator that they had established a servitude right of access to their property (in Fyvie in Aberdeenshire) across the properties of Mr and Mrs Green and Sir George Forbes-Leith.

Mr and Mrs Green argued that the Sidebottoms had not taken access over the route for the necessary 20 year period and that the use had been infrequent and not of the “right kind”. The Greens contended that the Sidebottoms use of the access had been based on a mistaken belief that their title contained a servitude right of access over the roadway in question. They also argued that use of the access had not been peaceable pointing to a letter written by Mrs Sidebottom which referred to an ongoing dispute over the access and to the fact that the access had been obstructed.

The sheriff found that the decision came down to a question of reliability and credibility and preferred the evidence of the Sidebottoms. Although the access had been obstructed, the sheriff accepted Mrs Sidebottom’s evidence that they had nevertheless continued to use the access and inferred from that and the lack of evidence to the contrary that use of the access was nonetheless peaceable. Even although the Sidebottoms’ use of the access may have been based on a mistaken belief that they had a right to use the access in their title, the sheriff found that Mrs Sidebottom’s letter was further evidence that the Sidebottoms were asserting their right to use the access.

The full judgement is available from Scottish Courts here.


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Paul Motion and Elaine Motion v. William Binnie and Cheryl Binnie, 21 August 2013 – extent of access rights registered in Land Register

Outer House case in which Mr and Mrs Motion sought interdict to prevent their neighbours, Mr and Mrs Binnie from encroaching on, or interfering with their property (consisting of two cottages, a paddock and a strip of land) and from interfering with or obstructing servitude rights of access (over farm roads) to that property. The Motions’ titles to the property and servitude rights were registered (and defined on plans) in the Land Register without exclusion of indemnity.

In their defence, the Binnies argued that the Motions did not have a vehicular right of access over part of the access route, contending that to exercise a vehicular right would involve them driving over part of the Binnies’ property. This, they argued, was not a challenge to the Motions’ title but a challenge to the physical extent of the servitude rights.

However, in the view of Lord Bannatyne, it was impossible to read the Binnies’ arguments as anything other than a challenge to the Motions’ title. The Motions’ rights were set out clearly on plans and registered in the land register but the Binnies did not seek to rectify the register. As such, the Binnies’ defences were found to be irrelevant. In coming to his conclusion Lord Bannatyne quoted from the Scottish Law Commission’s Report on Land Registration (SLC Report No. 222) which states:

“Rights in land are what the Register says they are and the Register says what the Keeper decides it should say. The Keeper giveth and the Keeper taketh away.”; and

“Everything that the Keeper touches turns to valid.”

 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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Gary Alexander Garden and Camelia Julia Garden v. Edmond John Arrowsmith and Jane Christine Arrowsmith, 14 January 2013 – whether right of access to unbuilt garage binding on successors

Sheriff court case concerning an alleged servitude right of access over a property in Aberdeen. In 1992 Jessie Sharp granted a disposition of a small area to the owner of the neighbouring property (her brother, Peter Sharp) in which she purported to reserve a right of access over the property to any garage to be built on the part she retained. No garage was built until her successors in title, the Gardens, built one in 2010. However, the Arrowsmiths (the successors in title to Peter Sharp) argued that the clause in the 1992 disposition created only a personal right between Jessie and Peter Sharp which did not transmit to their successors in title. They contended that, without a garage, there could be no servitude right as the purpose of the servitude could not be achieved.

The sheriff principal rejected that argument finding that the 1992 disposition did create a heritable and irredeemable servitude right of access over the Arrowsmiths’ property. The clause satisfied many of the common requirements for the creation of a servitude. Although the word “servitude” was not used, that is not fatal to the creation of a servitude and the clause contained a reference to successors in title and an obligation to insert in future transmissions. There also was an express declaration that it was a “real and preferable” burden, the deed did not expressly exclude the constitution of a servitude and there were no indications that the right was intended to be personal. Further, the sheriff principal took account of the fact that the garage was likely to be a permanent construction when coming to the conclusion that it was likely that the parties had contemplated that the right would continue for the benefit of singular successors.

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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Protected: Niall Jervis Coll Livingstone or Bachuil v Yorick Paine and another, 12 October 2012 -servitude, res judicata, personal bar and tenant’s title

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Harton Homes Limited v. Mrs Anne Durk, 3 July 2012 – servitude by implication and availability of alternative routes

Sheriff Court case considering an alleged servitude right of access to a site for development on Dundee Road in West Ferry.  Harton Homes argued that a servitude right of access had been created by implication which led from their site to Dundee Road over the southern portion of a neighbouring property owned by Mrs Durk and through a gap in a wall which separating both properties from the road.

Both Harton’s property and Mrs Durk’s property had previously formed part of larger subjects owned by Mr and Mrs Callison who split the subjects in 1985 and sold parts to Harton’s and Mrs Durkin’s predecessors in title. The break off dispositions conveying these parts made no reference to a  servitude right of access. However, the route over which Harton claimed the servitude had been created by implication had been marked as “mutual” on the plans attached to the break off dispositions.

A servitude can arise by implication on such a division of property where it is reasonably necessary for the comfortable use and enjoyment of one of the resulting parts. However, Mrs Durk argued that there were other potential alternative means of access which could be taken from the north of the properties. Potential access routes existed from Ellislea Road (situated to the east of both subjects and perpendicular to Dundee Road) or via another looping access road from Dundee Road meaning that there was arguably no necessity to imply a servitude over Mrs Durk’s property. These routes were probably not as attractive to Harton as they were less convenient and their gradient and the presence of a narrow archway made them unsuitable for construction traffic.  Although the Callisons’ title to the larger subjects made reference to rights to use the alternative access ways, Harton argued that that these rights did not extend to their part of the property (suggesting that the rights stopped short of their property, or had been abandoned and that the use by them of the rights would illegally increase the burden on the servient property).

The main thrust of Harton’s argument  was based on there being a “common intention” among the parties’ predecessors in title in 1984/5 (about the time the larger property was split) that access for both properties be taken over Mrs Durk’s property. The sheriff noted that, while common intention may be relevant as potentially throwing light on whether the parties considered the access to be necessary at the time of severance, it could not per se be a distinct ground for setting up an implied servitude. In any event the sheriff found himself unable to conclude that there was a common intention that the access right Harton argued for be granted. At best there had been an anticipation that the access would be available in 1984 when an application for outline planning permission for houses on each of the properties was submitted. Further, although later planning applications in respect of services to the plots showed the access located clearly on Mrs Durk’s property, initial planning applications for houses had shown the access located centrally. Harton could also have created a gap in the wall to the south of their property (similar to that in Mrs Durk’s property), the sheriff noting that there was no evidence of a title impediment and insufficient evidence of any planning impediment to do so. (However, evidence suggested that Harton may not have wished to create another gap in the wall as the gap situated on Mrs Durk’s property was more convenient and allowed for turning.)

After considering the evidence, the sheriff was not persuaded that there were physical difficulties or title impediments which prevented use of an alternative means of access to Harton’s property. In all the circumstances, Harton had failed to prove that the servitude through Mrs Durk’s property was reasonably necessary for the comfortable enjoyment of their property.

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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Roger Jones and Katherine Jones v. William Henderson Gray and Edna Drummond Ross or Gray, 13 December 2011 – evidence for creation of servitude by prescription

Outer House case concerning the creation of a servitude right of access by prescriptive possession. Mr and Mrs Gray owned 40 Montgomerie Drive, Fairlie and a lane running to it from Montgomerie Drive.  Mr and Mrs Jones owned 38 Montgomerie Drive and sought declarator that a servitude right of pedestrian and vehicular access had been created in favour of no 38 over part of the lane leading to the rear of their property and garage.

The Joneses also said that the Grays had erected a lockable post and fence in front of their garage so as to obstruct access to it from the lane and sought a decree ordaining removal of the obstructions and interdict preventing the Grays from interfering with the disputed area.

Section 3(2) of the Prescription and Limitation (Scotland) Act 1973 provides:

“If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge.”

In support of their action, the Joneses claimed that their predecessors in title had taken access over the disputed area including daily access to the garage with their car and with their sailing dingy from time to time between April 1979 and June 2007.  The access had been free and uninterrupted and it was consistent with exercise as a matter of right. The Joneses had taken access over the disputed area from June 2007 for parking their car in the garage, unloading their car and getting from the lane to the garage doors.

The Grays argued that the Joneses had not adequately specified the continuity, volume and frequency of the possession in their pleadings nor had they demonstrated that possession had been continuous for the prescriptive period or that it was open and ‘as of right’. They contended that the action should be dismissed on the basis the Joneses arguments were irrelevant and/or that they did not give fair notice of important matters to the Grays.

Lord Doherty was not satisfied that the case should be dismissed. Applying the test set out in Jamieson v Jamieson (1952), it was not a case which would necessarily fail even if all of the Joneses arguments were proved.  Several of the issues between the parties involved questions of fact and degree which would be capable of determination after a proof (e.g. whether possession was continuous). Lord Doherty was also not persuaded that there was a lack of fair notice on important matters. The crux of the Grays’ complaint was that the use of the word “included” suggested that the Joneses would be able to lead evidence of other unspecified modes of access of which no notice had been given. Lord Doherty considered that use of the word “included” did not reserve them a free hand to do so and if it were to happen the Grays would be entitled to object to such evidence being led.

A proof before answer was allowed.

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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