Outer House rules no servitude exists between 300+ year-old Fife coastal homes

Major Douglas Soulsby contended that an extension built by the defenders, Richard and Kirsten Jones, prevented him from exercising a servitude right that had been created via his conduct. He also sought declarator that the defenders were not entitled to build on the disputed land and that their extension constituted a nuisance at common law.

The case was heard in the Outer House of the Court of Session by Lady Carmichael.

Necessary maintenance

The pursuer’s property, Seven Gables, was part of a complex of buildings in Elie, Fife, acquired by the pursuer’s family in 1966 and 1983, which he used as a holiday home. The property acquired in 1966 included a building which lay along the eastern boundary of Seafort, a 400-year-old building which was purchased by the defenders in 2016.

Both parties owned in common a passage which ran between the two buildings towards the sea wall but ended before reaching it. The disputed servitude right was said to run from the end of the common passage to the sea wall over a strip of land owned by the defenders.

After acquiring Seafort, the defenders built an extension on the former site of a conservatory near this disputed area, considerably reducing the space between the western wall of Seven Gables and the eastern wall of Seafort. The pursuer contended that the location of this extension prevented him from exercising a servitude right of access over that part of the land.

Following extensive evidence, it was submitted for the pursuer that the disputed area had been used continuously, openly, peaceably, and without judicial interruption since 1966 for a variety of purposes including carrying out regular necessary work to the western wall, windows, and roof of Seven Gables. The coastal location of the property necessitated regular maintenance as well as painting at least once every 10 years.

It was further submitted that the open possession requirement for a servitude required that the dominant proprietor exercise his right openly, not that the servient proprietor need be aware of that exercise. There was no suggestion of clandestine activity.

In response, the defenders submitted that only servitudes recognised by law could be acquired by prescription. The acts founded upon were very limited in nature and character and gave rise to an inference of tolerance at best. Further, although the pursuer described a need for regular maintenance the evidence as to when that maintenance had taken place was notably lacking in precision.

Permission positively given

In her opinion, Lady Carmichael began by outlining the requirements the pursuer had to establish, saying: “The nature, quality and frequency of the acts of possession on which the pursuer founds are of central importance. They, rather than the subjective state of mind of the proprietor of the servient tenement are the focus of inquiry.”

Evaluating the evidence of the pursuer, she continued: “The only user of any regularity and frequency which I am satisfied has occurred is access for the purpose of window cleaning. That took place monthly primarily during the summer months. It took place at most ten times per year, as was vouched by statements of account relating to 2016 and 2017.”

Lady Carmichael then considered whether this use could constitute a servitude, saying: “The cleaning that required to be done from the disputed area took 5 or 6 minutes each month to accomplish. That is use of a fleeting nature, and I do not consider that, looked at objectively, it is use that falls to be regarded as being in assertion of a servitude right of access for that purpose.”

Turning to the conduct of two tradesmen who worked on Seven Gables within the disputed area, she said of their evidence: “I accept Mr Allan’s evidence that he always asked and was granted permission from someone within Seafort before carrying out work on the disputed area. Mr Delaney’s evidence also was that he asked and received permission, in his case on a single occasion. That does not assist the pursuer’s case. These are examples of permission positively being given, rather than being inferred because of the inaction of the servient proprietor.”

She therefore concluded: “The pursuer has not discharged the onus on him of establishing possession of the requisite quality and frequency, and the defenders must be assoilzied.”

Decree of absolvitor

Lady Carmichael briefly considered whether a servitude of necessity existed, saying: “No authority has been drawn to my attention in which a servitude of access for the purposes of repair, maintenance and inspection has been constituted simply by virtue of necessity.”

She concluded on this issue: “In reality the vast majority of requests for access are met with co-operation and goodwill and/or enlightened self-interest in avoiding property damage and personal injury from poorly maintained neighbouring properties. I note that the problem of obtaining access to neighbouring properties has been dealt with in England and Wales by means of legislation.”

For these reasons, the defenders were granted decree of absolvitor in respect of all conclusions. It was also held that the construction of the defenders’ extension did not constitute a nuisance at common law.