Property: Access by prescription: challenge of proof

In Scotland, the Prescription and Limitation (Scotland) Act 1973 provides that a person can acquire a servitude right of access over a neighbouring property by virtue of the legal doctrine of positive prescription, if access is exercised for a continuous period of 20 years openly, peaceably and without judicial interruption.

A prescriptive servitude right of access is a real right in land – one binding on future owners of both the benefited property and the burdened property – and is created through the passage of time rather than in a written deed. As a result, while such a right may not appear on the Land Register, it may nevertheless have a significant impact on the use and enjoyment of the properties involved.

It can, however, be difficult to establish that a prescriptive servitude right of access exists, as it is not only necessary to demonstrate that access has been exercised for the requisite 20 year period, but also that the benefited party has taken access as of right, as opposed to doing so simply because this has been tolerated or permitted by the owners of the neighbouring property.

The difficulties which can arise in establishing that a prescriptive servitude right of access has been created are demonstrated in the recent case of Soulsby v Jones [2020] CSOH 103 (17 December 2020). In this case, the pursuer sought a declarator from the court that he had – by virtue of positive prescription – acquired a servitude right of access over the defenders’ garden for the purposes of maintaining his property.

The background

The pursuer led evidence that he and the previous owners of his property had taken access over the defenders’ property since at least 1966 to inspect and maintain the western side of his property. The pursuer’s position was that regular maintenance to his property was required given its close proximity to the sea, and evidence was heard from several tradesmen whom the pursuer and the previous owners of his property had engaged over the years to clean the windows, to paint and to carry out modest repairs to the western side.

Despite the tradesmen admitting that they always sought permission from the owners of the neighbouring property before taking access over their garden, the pursuer’s position was that access had been taken as of right and, given that access had been exercised for a period of over 20 years, an unchallengeable prescriptive servitude right of access had been created.

The defenders, on the other hand, argued that the occasional nature of the access which had been taken over their property for the purposes of inspecting and maintaining the pursuer’s property suggested that the pursuer was not taking access by right, but with their tolerance or permission.

The court’s decision

While the court did comment that some of the evidence from the pursuer’s witnesses was not very precise, it was satisfied that access had been taken over the defenders’ property for the purposes of window cleaning between five and 10 times a year throughout the prescriptive period, as well as at other intervals for painting and carrying out repairs to the pursuer’s property. Nevertheless, the court considered that such access was of a transitory nature, and could therefore not be regarded as asserting a servitude right of access for that purpose. 

In this respect, the nature, quality and frequency of the access taken were critical to establishing that a prescriptive servitude right of access had been created and, in this case, the pursuer was unable to persuade the court that a prescriptive servitude right had been created, notwithstanding that it was accepted that access had been taken over the defenders’ property for a period of over 20 years.

As to the question whether access had been exercised as of right or by tolerance, the court was of the view that it was for the pursuer to demonstrate that the nature and frequency of the access taken justified a conclusion that it was exercised as of right – a requirement on the pursuer to prove positively that his neighbours were not merely tolerating his access would be unworkable.

Significance

The decision in this case highlights the difficulties of establishing a prescriptive servitude right of access, as well as the precision and quality of the evidence which is needed throughout the prescriptive period in cases where a person is seeking to demonstrate that an off-register real right in land has been created and binds future owners of the burdened property. In this respect, careful consideration must be given before raising a court action for declarator, since the evidence in each case will be assessed on its own merits, as well as in the context in which the servitude right is claimed to exist.

Finally, it is worth noting that the pursuer, along with his mother and grandmother before him, had owned his property since 1966 and yet was ultimately unable to establish that a prescriptive servitude right of access had been created. As such, it would likely be even more difficult for parties who have owned their property for less than the 20 year prescriptive period to gather sufficient evidence to establish the existence of a prescriptive servitude right.