Heritable Property – Title Conditions – Discharge or variation – Servitude right of vehicular access – House to rear of applicants’ property – No other access when house built – Alternative access, with servitude right, subsequently created – Discharge granted, subject to undertaking to permit signage – Title Conditions (Scotland) Act 2003, Sections 98, 100

Heritable Property – Title Conditions – Discharge – Expenses – Applicants’ intransigent and almost intimidatory approach – Application might not have been necessary – No award of expenses – Title Conditions (Scotland) Act 2003, Section 103(1)

John Colecliffe & Anr v Richard Thompson
1 April 2009

A servitude right of access through the applicants’ garden was created when land to the rear of their house was sold and the respondent’s house built. Subsequently, an alternative exclusive access, with a servitude right, from a different road, was created. The application to discharge the original servitude was opposed.

The application was granted on the basis of an undertaking to permit signage directing to the new entrance to the respondents’ house. The Tribunal considered that the original purpose was fulfilled by the new access right, development of which was a relevant change of circumstances. The servitude was burdensome, and with the new right created, did not confer any significant benefit on the respondent’s property.

On expenses, the Tribunal noted the applicants’ intransigent and almost intimidatory approach. The application might not have been required if they had approached the matter differently. In the circumstances, an award of expenses was not appropriate.

Authorities referred to: None.

See full decision:  LTS/TC/2008/38