Heritable Property – Title Conditions – Discharge or variation – Servitude right of access – Owner of end terrace house entitled to access over side ground belonging to end house of adjoining terrace – No reciprocal right – Applicant not seeking reciprocal right – Reasonableness – Application refused – Expenses awarded to respondent – Title Conditions (Scotland) Act 2003, sections 98,100 and 103(1)

Chisholm v Crawford
17 June and 12 August 2010

Following the sales of former local authority houses, the respondents had a right of vehicular access over side ground belonging to the applicant, in addition to their own side ground, enabling the respondents to access a garage to the rear. There was no reciprocal right in favour of the applicant, who sought discharge. The application was considered on the basis of written submissions and a site inspection. The Tribunal had enquired whether the possibility of reciprocal rights had been considered, but the applicant did not wish this.

The Tribunal agreed that a degree of inequality in the titles had been produced. However, contrary to the applicant’s claim, discharge would make the respondents’ access impractical and thus have a serious effect on this established feature of the respondent’s property. If exercised civilly, the right did not seriously impede the applicant’s enjoyment of her property. On a consideration of all the factors listed in section 100 of the Act, in the particular circumstances, the Tribunal were not satisfied that the application was reasonable.

The applicant opposed an award of expenses in the respondents’ favour, but the Tribunal did not see any reason why the respondents, having been successful, were not entitled to expenses. Whatever the position about extraneous issues might be, there could be no criticism of the respondents’ conduct of the proceedings.

Authorities referred to: None

See full decision:  LTS/TC/2009/42 (Merits) and LTS/TC/2009/42 (Expenses)