Sheriff recognises freestanding servitude right of parking

A “freestanding” servitude right of vehicular parking can competently exist in Scots law, because it is similar in nature to a type of servitude known to the law, a sheriff has ruled.

In a dispute concerning a narrow strip of land adjacent to an area in Rutherglen used as a residential site for showmen's caravans, Sheriff Stuart Reid at Glasgow also held that the partial or total exclusion of the owner from mere physical occupation of the servient tenement did not of itself prevent the asserted right from being a servitude.

The pursuers, the owners of the alleged dominant tenement (the residential site), sought declarator of a servitude right to park vehicles on the neighbouring strip, together with accessory rights of vehicular and pedestrian access, as constituted by prescriptive possession. They averred that their tenants had parked vehicles, including articulated lorries, on the supposed servient tenement for a continuous period of 20 years, openly, peaceably and without judicial interruption. The area was “integral to the operation of the dominant tenement as a showmen’s residence”; it was the only location on which the vehicles could be parked due to their size and limited manoeuvrability; some of the vehicles could only be parked partially on the subjects; and vehicles were parked there for the purpose of storing and repairing amusement arcade rides and equipment.

The defenders sought dismissal on the basis that the law did not recognise such a freestanding right, unrelated to a primary right of access, unlimited as to the number and type of vehicle or the duration and extent of parking, and deriving from prescriptive use rather than express grant. They further argued that the servitude sought was repugnant with their rights of ownership; and that the crave failed to specify adequately the nature and extent of the parking rights sought to be declared.

Sheriff Reid recognised that a servitude right of parking ancillary to a right of vehicular access had been recognised by the House of Lords in Moncrieff v Jamieson (2008). However, he continued, the majority were plainly also of the view that a freestanding right of parking could competently exist in Scots law.

“It is correct that the owner of land who enjoys a servitude right of vehicular access across neighbouring ground may be said to have a legitimate interest in being on the servient tenement in the first place, making the recognition of an ancillary or accessory right of parking easier to justify in those circumstances”, he observed. “But the inherent illogicality in recognising an ancillary servitude right of parking, if such a servitude could not also exist independently, is undeniable. Each of the law lords acknowledged as much. Besides, I can think of no compelling reason why the servitude right of vehicular parking should be confined to an ancillary status, subordinate to a primary right of access.”

Proof before answer would be required, however, “to ascertain (i) the precise nature of the alleged prescriptive use and the surrounding context; (ii) whether the alleged use was and is indeed for the praedial benefit of the supposed dominant tenement; and (iii) the lawful purposes to which the dominant tenement can be put (and, by extension, for which the alleged servitude may be, and may have been, exercised)”.

He added that Moncrieff supported the view that the fact that the servient proprietor was unable to use their land while vehicles were parked there, was not a conclusive objection to the existence of such a servitude: such permanence was a feature of certain servitudes.

Regarding the terms of the crave, the sheriff ruled: “By analogy with other servitude rights..., it is not necessary, in the context of a crave for declarator of a servitude right of vehicular parking constituted by prescriptive possession, to specify the precise (or maximum) number, type or model of vehicles to be parked on the servient tenement; or where on the land they can be parked; or when, by whom, and for how long they can be parked there. Naturally, specification of the extent of the historic possession is required within the articles of condescendence in order to give the defenders fair notice of the case sought to be established against them. But that is a different matter from the degree of specification required to support a competent declaratory crave.”

Click here to view the sheriff's judgment.