Parking servitude dispute between town shopping centre owner and nearby homeowner proceeds to proof

About this case:

• Citation:
  [2024] ALO 28
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Charles Lugton

Manoj Marwaha, co-owner of the Sauchie Shopping Centre along with a company of which he was the sole director and shareholder, sought decree that John McAllister, who resided on Sauchie’s Main Street, could not have a servitude of parking due to being unable to exercise such a right civilly. The defender moved to fix a proof before answer, arguing that fair notice of his case had been given.

The case was heard by Sheriff Charles Lugton at Alloa Sheriff Court. McFarlane, solicitor, appeared for the pursuer and Crook, advocate, for the defender.

Lacking in candour

The pursuer’s shopping centre was located beside Main Street, Sauchie, while the defender was the heritable proprietor of a property known as The Bungalow located directly on Main Street. The north-east boundary of the defender’s subjects abutted the south-west boundary of the pursuer’s, with the defender possessing an express servitude right of access and egress for pedestrians and vehicles over an area of ground extending the length of the common boundary.

It was averred by the pursuer that the defender had been parking vehicles on the access strip, thereby obstructing access to the south-west-most gable of the shopping centre, with various adverse consequences in respect of maintenance of the property. He further averred that he was at risk of losing a potential commercial tenant due to the obstruction, and that his insurance brokers had suggested that any claims on the property may not be honoured as the fire escapes at that part of the building were continually obstructed.

The defender’s position was that he had acquired a right to park on this ground by positive prescription. He did not aver an entitlement as based on an ancillary right to his existing servitude. In response to the defender’s claim, the pursuer averred that the defender’s parking of vehicles on the strip had not been continuous, including periods of absence from the property and periods during which the defender let his property to tenants who parked elsewhere.

Moving for decree de plano, the pursuer’s agent submitted that the defender’s pleadings were meagre and evasive, and so lacking in candour that any benefit of the doubt should go to the pursuer. The putative servitude was not capable of being exercised civiliter, and would sterilise the access strip for the intended use as a route of access.

Counsel for the defender rejected the proposition that he had failed to set out a relevant case. He did not require to aver which particular vehicles were parked on which part of the access strip at any particular time, as such specification would be both impossible and beyond what could reasonably be required.

Not persuaded

In his decision, Sheriff Lugton said of the defender’s averments: “While much will depend on the circumstances of the case, it is likely to be easier to establish that parking has been carried out by right where it has occurred either frequently or in accordance with an identifiable pattern. Conversely, if there has been no such parking for periods of years, or if parking has taken place sporadically, it may be more difficult to establish the existence of a right.”

He continued: “It appears that [the defender] offers to prove that parking took place on the access strip with a degree of regularity. In other words his position seems to be that such parking amounted to an ongoing activity, albeit of unspecified frequency. While these averments are hardly fulsome, on balance, I am not persuaded that they are sufficiently lacking in specification that they should be excluded from probation.”

Turning to the civiliter principle, the sheriff said: “If the requirement is that the right must be exercised in the mode least disadvantageous to the servient tenement ‘consistently with full enjoyment’, then the pursuer’s contention that a purported right of servitude is incapable of being exercised civiliter because of potential prejudice to the servient proprietor, is a non sequitur. This is because there is no breach of the principle if prejudice to the servient proprietor is a necessary consequence of the dominant proprietor’s full enjoyment of the right.”

He concluded: “In order to establish the existence of the servitude the defender will have to prove that he has parked on the contested area of ground by right, and in the furtherance of the enjoyment of his property, for a continuous period of 20 years, openly, peaceably and without judicial interruption. The pursuer pleads a detailed rebuttal of this. Ultimately, the controversy will have to be resolved after evidence has been led.”

Sheriff Lugton therefore refused the pursuer’s motion for decree de plano and allowed a proof before answer.