Heritable Property – Title Conditions – Discharge or variation – Servitude right of access – Only available access when properties separated – New access subsequently created – Discharge would remove access to respondent’s garage – Reasonableness – Application granted on basis compensation appropriate for loss of access to garage – Title Conditions (Scotland) 2003, Sections 98, 100

Heritable Property –Title Conditions – Discharge or variation – Compensation – Loss of servitude right of access to garage – Consideration of cost-based figures – Diminution in value assessed by comparison between value, based on housing market, of garage and value of garage building only capable of use as store – Title Conditions (Scotland) Act 2003, Section 90(6) and (7)

Heritable Property – Title Conditions – Discharge or variation – Expenses – Applicant succeeding in application for discharge – Respondent succeeding in claim for compensation – Circumstances in which no award due to or by either party – Title Conditions (Scotland) Act 2003, Section 103(1)

G v A
26 November 2009, 10 February and 24 August 2010

The applicant sought discharge of a right of access over her driveway (for which she had re-development plans) in favour of her neighbour. The access had been the only possible vehicle access when the two properties had been separated, but an alternative access had subsequently been created on added land.

The Tribunal held that on an objective test (to which questions about the parties’ behaviour were essentially irrelevant) the application was reasonable where the purpose of the title condition was being met by the alternative access. There was loss and inconvenience to the respondent in that he would be losing vehicle access to his garage, but in the particular circumstances that loss could reasonably be met by compensation.

Assessing compensation on the basis of written submissions, the Tribunal considered and rejected three possible ‘cost-based’ options. Compensation was awarded on the basis of diminution in the value of the respondent’s property, measured by comparing the value added on the housing market by a garage with the value on the same basis of the garage building capable of use only as a store.

On expenses, the applicant had succeeded on the merits; the respondent on compensation (beating a ‘tender’). The applicant had not offered compensation in advance or at the hearing on the merits. The respondent had not claimed compensation until after that hearing. In all the circumstances, no award to or by either party was appropriate.

Authorities referred to:-

Ord v Mashford 2006 SLT (Lands Tr) 15
Jensen v Tyler, 25.4.2008, LTS/TC/2007/35
Colecliffe v Thomson, 1.4.2009, LTS/TC/2008/38

See full decision:  LTS/TC/2009/13 (Merits), LTS/TC/2009/13 (Compensation) and LTS/TC/2009/13 (Expenses)