As a typical cold and wet Scottish winter rumbles on, it is easy to think of sunnier climes.

As well as being a source of winter sun, a recent decision in an appeal from Antigua and Barbuda serves as a reminder to those owning or operating large commercial industrial or retail parks about servitude rights being created by implication or necessity. Servitude rights allow limited use of one person's land to be made for the benefit of another's.

What happened in the Caribbean?

In the case of Horsford v Croft, Mr Croft argued that he could only access his home from the public road via a road (the eastern road) owned by Mr Horsford. Without using that road Mr Croft said his home was inaccessible.

Both parties' land had once formed part of a large estate. The estate subsequently split off the plot that formed Mr Croft's home.

Mr Horsford wasn't happy with the eastern access being used, and claimed that Mr Croft had no vehicular rights over the eastern road, pointing instead to a road to the west that he could use.

The High Court in Antigua first found in favour of Mr Croft. The Court of Appeal of the Eastern Caribbean Supreme Court then overturned this decision, finding that Mr Croft had no right of way over the eastern road.

Mr Croft then appealed to the Judicial Committee of the Privy Council, sitting in London.

What did the Privy Council decide?

The Privy Council decided that Mr Croft had no express right of way over either the eastern or the western road. It therefore had to decide if there were rights of access arising by necessity. Three conditions were identified before such rights could arise.

First, the land had to have been held in common and divided into two plots.

Second, access to Mr Croft's plot could only be possible over land owned by Mr Horsford.

Third, there had to be a conveyance on Mr Croft's plot which did not expressly grant or reserve rights of access.

All three requirements were found to be satisfied in respect of the eastern road at the time Mr Croft's plot was created. As the western road did not connect to the public road (but instead to a third party's land) the western road did not satisfy the second requirement.

The Privy Council therefore allowed Mr Croft's appeal and found that he had a right to use the eastern road as a pedestrian and vehicular right of way to reach his property from the public road.

What would a Scottish court decide?

A Scottish court would almost certainly reach the same decision. Scots law recognises the possibility of servitudes being created by implication, albeit the courts do so reluctantly.

Before recognising an implied grant of servitude, a Scottish court will have be satisfied that there is (a) one property that has been divided into two or more separate properties (b) that the new (or original) property requires servitude rights because they are "necessary for the reasonable enjoyment of the property" i.e., necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant and (c) the absence of an express grant or terms precluding an implied grant.

A fact that usually (but not always) exists is that prior to sub-division there is normally some use of similar such rights. Claims for implied reservation in favour of the retained property are regarded with less favour.

A good example is, as in Horsford v Croft, where a plot is sold which can only be accessed via the retained land, thus requiring an implied grant of a servitude right of access in cases where one has not been expressly created.

Key takeaways for commercial properties

For those owning or managing large commercial properties it is important to remember that:

  • When land is sub-divided or if a small plot is sold off from a larger area, you should be alive to the possibility of implied servitude rights.
  • Access is the obvious right, but regard should also be had to other servitude rights such as parking, service media (e.g. leading of water, gas or electricity), drainage or the right to take water.
  • A well drafted conveyance breaking up the large original plot should address all of the necessary servitude rights, but the reality of the situation on the ground might lead to arguments about implied rights.
  • Whilst the Scottish courts will be slow to recognise implied grants of servitudes, these remain rights to be aware of. Each case will be assessed individually on its particular facts.

Contributors

David Ford

Associate & Solicitor Advocate

Matt Farrell

Partner