A matter of opinion

When I was appointed to the Chair of Convenyancing in the University of Glasgow some ten years ago, one of the things I dreaded was the giving of opinions. I had delivered opinions before on matters relating to professional negligence having held the position of Convenor of the Conveyancing Committee of the Law Society of Scotland for three years. However, delivering opinions on conveyancing and property law matters in general was quite a different challenge. When I looked over the opinions delivered by the late Professor Halliday, I was surprised at the extent and breadth of the issues which arose. I was also surprised to note that there did not appear to be any opinions which dealt with professional negligence.

Things have changed since Professor Halliday’s time. My own predecessor, Professor Inglis, would have been no stranger to requests for negligence opinions.  I have now delivered almost 2,000 opinions. Of these approximately 600 are opinions relating to professional negligence in conveyancing transactions. Between August 2002 and February 2003 I was cited to give evidence as an expert witness in no fewer than six proofs, and gave evidence in the Court of Session on two occasions.  Despite these rather depressing statistics the vast bulk of opinions which I have delivered do not relate to negligence matters. The following are examples of main areas of law and practice which have appeared to cause difficulty.

Servitudes

One might think that the law of servitudes would only be of concern to so-called country practitioners. My experience, however, has been that a great many problems relating to servitudes occur in all sorts of situations. The first problem which often arises relates to the constitution of the servitude. In many cases I have been asked to give a view on whether or not a servitude exists. Servitudes can be created in a variety of ways:

• by express grant in a deed
• by express reservation in a deed
• by implied grant
• by implied reservation
• by acquiescence on facts and circumstances  
• by prescription

All of these are valid methods of creation, but none is free from difficulty. When a servitude is constituted by express grant or reservation the words are not always as clear as they might be. In some opinions which I have delivered I have been forced to come to the conclusion that what has been created is a personal licence or permission rather than a servitude which runs with the land. This is because of slack wording. In the case of Robertson v Hossack (1955 SLT 291) there was a right of access over land at the rear of two cottages both granted and reserved to each in a deed. Singular successors argued over the nature of the access rights granted and reserved.  The court held that the right granted was personal to the grantee and did not transmit in favour of a singular successor.  

Surprisingly perhaps the court held that the right of access reserved was a servitude of access and was enforceable by the granter and her successors. The absence of wording indicating that successors in title were to benefit was crucial. In some cases land is disponed but no servitude granted or reserved. Most often this is a mistake as where someone conveys part of their garden for the erection of a new house and fails to grant a right of access over a driveway which is to be used by both properties. In such a case a servitude can arise by implied grant. Less likely is the reverse of this situation where there is a failure to reserve a servitude. The general rule is that one should not derogate from a grant and any servitude must be expressly reserved. In cases of strict necessity however, the law may imply a reserved servitude.  

There is now some confusion as to the nature of a so-called servitude of necessity. This may arise as a natural civil right which pertains to ownership as opposed to a servitude (see Bowers v Kennedy 2000 SC 555). Very often a party may argue that a servitude has been exercised for the prescriptive period of 20 years and produce evidence by way of affidavits from previous proprietors, neighbours, local worthies and the like in support of this contention.

However, it must be borne in mind that any such servitude must be exercised as of right and not simply by way of permission or personal licence. It should also be remembered that the exercise must be open, peaceable and without judicial interruption. I have come across cases where the parties on both sides of an access dispute have been able to produce competing affidavits substantiating both peaceful and warlike possession.  Whatever the law may be (and it normally depends on an assessment of the evidence) practitioners should bear in mind that the policy of the Keeper is not to insert servitudes in the property section of a land certificate which are constituted by implied grant, implied reservation, acquiescence necessity or prescription on the basis of ex parte statements or affidavits (see Davis Positive Servitudes and the Land Register (1999) 4 (1) SLPQ 64).  

Even where the parties agree that a servitude exists problems arise in relation to the mode of exercise of that servitude. I have now given countless opinions in relation to the purpose of the servitude and whether or not a particular use is an increased burden on the servient tenement. A typical example is the case of the sub-divided property where, for example, someone who has a servitude right of vehicular access over a driveway sells part of his or her ground to a third party for the erection of a new dwelling house. The question is whether the newly sub-divided property can also benefit from the servitude.  Each case must be decided on its own facts against the background of what the parties contemplated at the time the servitude was actually created. In many cases, of course, there is absolutely no evidence as to this intention.

It becomes, I suppose, a matter of degree so far as lawyers are concerned but as with all neighbourhood disputes it becomes a matter of ‘principle’ so far as the warring factions are concerned. Practitioners should, I suppose, pay more attention to the words which are used at the time servitudes are created. That does not mean, of course, that we can always anticipate what may happen in the future. If, for example, a servitude is to be reserved in favour of undeveloped land then words should be used which make it clear that the servitude to use the road, pipes or other services will be for the benefit of the undeveloped land and any sub-divided plots on that land so that any arguments about subdivision and increased use are dealt with at the time of constitution of the servitude.  (See Alba Homes v. Duell  1993 SLT (Sh. Ct.)49; Keith v. Texaco Ltd 1977 SLT (Lands Tr.) 16)

Descriptions

The standard and nature of descriptions in deeds has altered over time. A particular description of property used to contain a statement of the surface area, physical boundaries such as walls or fences, lineal measurements along those boundaries and a reference to an attached plan. Over the past 30 years it has become the norm simply to peril everything on a plan. With the advent of registration of title of course, all descriptions will eventually be perilled on a title plan.  On a great many occasions I have been asked to give a view on whether or not a worthless strip of ground belongs to proprietor A or proprietor B. I dealt with boundary disputes in a faintly humorous article in the Scots Law Times (Boundary Disputes 2001 SLT (news) 115).

Giving an opinion in a boundary dispute is fraught with difficulty.  For one thing the parties are only concerned with winning the argument; for another surveyors can often reach completely different conclusions depending on what they take as the fixed point for the commencement of measurement. It might have been hoped that registration of title would solve all boundary disputes. Alas this is not so. The scale of most title plans in the Land Register does not allow the Keeper to calculate very small differences, and frankly the Keeper is understandably reluctant to arbitrate between registered proprietors. It should also be borne in mind in relation to registered titles that Section 12 of the Land Registration (Scotland) Act 1979 excludes from indemnity a loss which arises as a result of any inaccuracy in the delineation of any boundary shown in the title sheet where that inaccuracy could not have been rectified by reference to an ordnance map. Moreover, the operation of prescription in registered titles is radically different from its operation in sasine titles. It does seem to me there is perhaps less flexibility where the titles are registered (see Rennie Prescriptive Possession in the Sasine and Land Registers (1997) 2(4) SLPQ 309). The question of possession is often crucial here. Courts are not keen on boundary disputes. Quite properly they regard them as wasteful of judicial time and productive of nothing but legal expense. Very often therefore courts choose the status quo based on possession (see for example Suttie v Baird 1992
SLT 133).

Special destinations

Many years ago when title was being taken in joint names of husband and wife, practitioners inserted a survivorship destination as a matter of course, I suspect without actually taking any instructions from the parties or looking at the implications of such a destination. Where a disposition indicates that the price has been paid by both parties and title is taken in joint names and the survivor then the destination is contractual and cannot be evacuated by will or other testamentary writing (Perrett’s Trustees v Perrett 1909 SC 522). No doubt when the promise ‘til death us do part’ was honoured such destinations caused little or no difficulty. However, in an age when a great many couples separate, the law relating to contractual destinations can have surprising results.  It should now be well known in the profession that if a party to a survivorship destination conveys his or her one half share to the other party to the destination that has no effect on the half of the property which is not conveyed. I have now had to give a number of opinions in very awkward and indeed quite sad family situations where a survivorship destination has resulted in a bizarre outcome which was clearly never intended by either party to the destination. The typical situation is where title is taken in the name of A and B and the survivor, and the parties separate or are divorced. It is agreed that B will convey his one half share to A. This is done by means of a disposition which merely conveys B’s one half share without mentioning the other part of the special destination which affects A’s original share.To all intents and purposes A is at that point the owner of the whole property.  A marries again and leaves a will in which she leaves the house to her second husband and the balance of the estate to the children of the first marriage. Not unnaturally no bequest is made to the first husband. On A’s death however, her original one half share goes back to B, the first husband, by virtue of the special destination which is not evacuated by the will. The second husband is therefore left in the invidious situation of owning the house in common with the first husband. No solicitor should prepare a disposition with a special destination without taking clear instructions and giving clear advice as to the implications.  It was salutary to discover that among the questions I was asked in relation to special destinations was whether or not there was a duty on a solicitor drawing up a will for a new client to make enquiry of that client as to whether any property had been held on a special destination in the past.

Professor Robert Rennie was appointed Professor of Conveyancing in the University of Glasgow in 1993.  He is a partner in Harper Macleod, Solicitors, Glasgow