Before building an extension or other new structure on an area of open land at a Scottish commercial property, a prudent owner would check whether neighbours are using the area in question for any purposes and have the property title examined by a lawyer to identify any legal risks or obstacles to the intended works. Often there are title conditions or restrictions or other legal issues which may need to be navigated. Early understanding is essential, so that issues can be resolved, mitigated and/or factored into a project at the design and planning stages.
Here we look specifically at the issue of a servitude right of pedestrian or vehicular access over a property which can be established through regular uninterrupted use by a neighbour for over 20 years or can be granted to them in their title. In particular, we look at what to do in circumstances where the right has not been exercised for some time. Does this mean that the land can be freely built upon without risk of challenge or repercussion?
Can a servitude be terminated / extinguished?
In simple terms, in Scots law non-use of a servitude right for a period of 20 years extinguishes it. There is no requirement for the servitude to be formally removed from the property title. A servitude can be extinguished as a matter of law regardless of what the title says. However, as there is always a risk of challenge by the party that held the extinguished right some property owners might, understandably, be uneasy about proceeding with development on this basis.
What are the risks of development over an extinguished servitude area?
If the intended works are low value and the area is easily reinstated to its original state, the impact of a challenge may be low and just getting on with the works may be the preferred approach. In other cases, it may be prudent to establish certainty prior to commencing works. The impact of a challenge is likely to be much greater if the works are substantial or involve significant expenditure. In the worst-case scenario the neighbouring property owner who benefits from the servitude right might raise interim interdict proceedings (Scottish equivalent to an injunction) asking a court to order a temporary halt to works whilst the matter is determined. This uncertainty, delay and cost for a project is likely to be unwelcome.
There are a couple of ways an owner can proactively mitigate or remove the risk of a challenge. For absolute certainty the owner can apply to the Land Register of Scotland to have the extinguished servitude removed from their property title. Before effecting removal, the Land Register of Scotland would want to see either a deed between the affected parties agreeing to the removal or a court order. If the neighbour with the right isn’t prepared to co-operate and enter into an agreement, then the only remaining course of action is to raise an action, at either the Sheriff Court or the Lands Tribunal, seeking a declaration that the servitude is extinguished. This obviously involves time and cost but would, ultimately, allow works to proceed with certainty that there will not be a challenge.
What does a land owner need to establish before the court or tribunal?
In order to obtain a court order, evidence of non-use of the servitude would need to be provided. Proving a negative can often be problematic. One would consider whether there is historic mapping and satellite imagery showing that the area in question has been overgrown and impassable or that passage has been blocked by a wall or fence. Are there current or previous building managers, owners or other neighbours who can attest to the fact that the access route has not been in use for 20 years?
As part of the proceedings, the neighbour with the servitude would be notified and would have an opportunity to comment. Unless that neighbouring benefited property owner can evidence use then the court or land tribunal is likely to declare the servitude to be extinguished. It is worth noting however that evidence of even very occasional use would be sufficient to interrupt the 20-year period.
An application to the Lands Tribunal is usually slightly quicker and more flexible and cost effective than the alternative Sheriff Court route. But one should bear in mind that it is also more user-friendly for a party wishing to object (e.g. it is easier to represent yourself before the Lands Tribunal). An owner should weigh up both options before proceeding.
Key take aways
Whilst developing land which is subject to historic, but apparently extinguished, access rights can be profitable, an owner (or would-be purchaser) should carefully investigate the circumstances in which rights are thought to have been lost. If access rights have not been exercised for a lengthy period, there is a process to have those rights formally extinguished, facilitating development. Not doing so comes with risk, and could result in court action being raised to temporarily – or permanently – halt the development.
Brodies’ real estate and real estate litigation experts can advise on the most suitable course of action in the circumstances. Please do not hesitate to contact your usual Brodies’ contact or one of our team.
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