Real rights and implied rights – a case in point

E-Ming Fong, commercial litigation partner at Harper Macleod LLP, represented the successful defender in the Sheriff Court proof, along with David Thomson of Axiom Advocates who was instructed for the successful respondent at appeal.

The case contained helpful judicial commentary on the implication of real rights. In this respect, servitude rights are real rights created over heritable property. Real rights bind the world at large and in perpetuity.

The court commented that any purchaser of heritable property should therefore 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.

The court therefore cautioned against the recognition of such implied real rights to such cases where their existence is reasonably obvious from the surrounding facts and circumstances.

The case

The properties at the heart of the dispute were 6 and 7 Coates Crescent, Edinburgh. ASA International Ltd, the appellants, are the heritable proprietors of 6 Coates Crescent; Kashmiri Properties (Ireland) Ltd, the respondents, are the heritable proprietors of 7 Coates Crescent.

Between 1989 and 1994, the two properties were owned by the same party. In 1994, 6 Coates Crescent was sold. The disposition contained no express servitude right of way over 7 Coates Crescent in favour of 6 Coates Crescent. ASA sought to assert its claim that an implied servitude was granted in 1994 in favour of its property and accordingly raised proceedings at Edinburgh Sheriff Court. Following proof, the Sheriff rejected the pursuer’s claim and an appeal was marked to the Inner House.

The case was heard by Lady Paton, Lord Drummond Young and Lord Malcolm. In the opinion by the court, delivered by Lord Drummond Young, the Inner House refused the appeal. The critical question that arose in this case of implied servitude was the relationship between the two elements of use and necessity, the latter word being understood in the sense of reasonable necessity for convenient and comfortable enjoyment.

The Inner House held that the evidence in this case fell far short of satisfying the test that the implied servitude right of access claimed over the servient tenement was reasonably necessary for the convenient and comfortable enjoyment of the dominant tenement. 6 Coates Crescent was already served by convenient alternative rights of access to and egress from its property.