MacRoberts e-update 30/10/09

HOW RELIABLE IS AN 'UNRESTRICTED' SERVITUDE OF ACCESS?

Twice in as many weeks we have been asked to interpret servitude rights of access which appear to have no limitation, and to comment on whether or not those rights are truly unrestricted in the context of a development which will result in an increase of traffic.

The issue
The issue arises fairly regularly and usually where a servitude right of access is stated in broad terms, e.g. "a servitude right of access and egress to and from the subjects", without further explicit qualification or restriction. Are such servitudes truly open-ended?

Two well-established principles relating to increasing the burden of a servitude are that:

• there is an implied condition in servitudes that the use will not be increased beyond that necessary to use it for the original purpose; and
• the burden of the use should be what is ordinary and reasonable in the context of the original grant.

The issue then becomes: what did the parties have in mind when the servitude was granted and what is reasonable in the context of that intention? For example, if land is sold for use as a dwellinghouse but is later sold for redevelopment as a hotel, will an apparently unrestricted right of access really allow the increase of traffic inherent in the change of use?

The original intention of the parties may be apparent from the deed in which the servitude was originally granted, e.g. by reference to a use restriction, and this may limit the use of the servitude even though the use restriction itself is no longer enforceable as a result of feudal abolition. In the absence of any use restriction, generally:

• servitudes are subject to strict construction with the presumption in favour of freedom for the owner of the benefited land;
• courts will tend to favour the least burdensome construction; and
• extrinsic evidence can be led to establish the underlying intention of the granter of the right.

Why is this important to developers?
In each of our recent experiences, examination of the context of the original grant and the intention of the granter have led us to the conclusion that the servitudes were not open-ended at all, and consequently were not sufficient for the purposes of our developer clients. Had we accepted otherwise, our clients may later have found themselves stymied in their development by objections to the increase in the burden on the servitude.

For further information, please contact Gillian Campbell or Graeme Clubley on 0131 229 5046.

© MacRoberts 2009

To register for MacRoberts e-updates on a variety of legal topics, please click here.