The servitude of car parking- case update – JOHNSTON V DAVIDSON
Introduction – What is a Servitude?
A servitude is generally a right granted in favour of a person who owns an area of land to use another area of land owned by another person for a specific purpose. The most common types of servitude are rights of access to property, drainage and sewerage rights and water supply rights. In legal terms, the owner of the land that requires to use the servitude right is known as the “benefited proprietor” and the owner of the land that is affected by the servitude right is known as the “burdened proprietor”. In recent times, there have been a number of court cases that have created a new servitude right of car parking as being ancillary right to a right of access.
The Case – Johnston v Davidson
The case of Johnston v Davidson ( SAC (Civ) 22)) in the Sheriff Appeals Court has added further authority and guidance to the interpretation of the law relating to whether a right of car parking can be permitted in favour of a Benefited Proprietor.
Since the case of Moncrieff v Jamieson ( UKHL 42, 2008 SC (HL) ) decided in the House of Lords in 2007 it was decided that a right of parking may be established as an ancillary right to a right of access. In that case Lord Hope opined:
“The essence of a servitude is that it exists for the reasonable and comfortable enjoyment of the benefited property. Whether it originates in writing or is inferred from other provisions, practical considerations may indicate that it will carry with it other rights, although they would not qualify as their own as servitudes, are necessary if the benefited owner is to make reasonable and comfortable use of the property in favour of which it is granted.”
In Johnston v Davidson, It had been argued by a property owner in Carnoustie that a right of access over his property did not extend to a right to park a vehicle.
The defenders were the owners of a house at 14 Fox Street, Carnoustie. The street was described as a narrow single carriageway with double yellow lines on both sides of the carriageway. Since at least 1997 it had not been possible to park a vehicle on the carriageway without blocking the road.
The current access arrangements to the properties were created in 1997 when both were purchased and renovated by two local property developers. Following the sale of 16 Fox Street (now owned by the pursuer), a disposition was registered giving its proprietors “a heritable and irredeemable servitude right of access in common with the owner of 14 Fox Street” over part of the subjects comprising 14 Fox Street. There was sufficient space for the parking of four vehicles in the area.
The pursuer raised an action in Forfar Sheriff Court after the defenders planted a tree and erected a fence and bollards on the area of property covered by the servitude. He sought declarator that he had a right of vehicular access over the area and a right to park on it, which was granted by the sheriff. The sheriff further ordered that the tree, fence, and bollards be removed so that the pursuer could exercise these rights.
In this action the pursuer sought declarator (or declaration) of his right to park on the roadway, and interdict (or injunction) against obstruction by the defenders. Parking, admittedly, was not mentioned in the pursuer’s servitude, but the pursuer argued that a right to park was included within the access servitude as an ancillary right of parking on the basis of the decision of the House of Lords in Moncrieff v Jamieson.
Following a proof, the sheriff held that it was. There could be no parking on the pursuer’s own property. Nor could there be parking in Fox Street itself because it was too narrow and there were double-yellow lines. The Sheriff Appeals Court agreed that there was sufficient evidence to allow them to concur with the view of the sheriff that there is an ancillary right to park a vehicle on the disputed area. The property is residential and particularly attractive to families – the pursuer has a young family; the configuration of the location is important – it is virtually impossible to park in the street with the consequence that, without the right to park, the right becomes limited to drop off only and therefore to render the servitude of very limited value; it was always intended that it be used for parking and so used until the defenders took steps to obstruct it. That suggests the right to park was seen as an integral part of the enjoyment of the subjects; the defenders use the disputed area for parking and have gone to some lengths to stop the pursuer from doing the same thing – they clearly consider it beneficial to them. We therefore accept having regard to the test endorsed by the majority in Moncrieff that an ancillary right to park is necessary for the comfortable enjoyment of the property given the benefits it brings and the issues around alternative available parking.
This decision of the Sheriff Appeal Court provides further helpful guidance as to the circumstances in which the courts will imply the existence of a right of parking as ancillary to a servitude right of vehicular access. This decision reaffirms the principles that for an ancillary right to be implied it must be:
- ‘necessary for the convenient and comfortable use and enjoyment of the servitude’; and
- the right must also have been in the reasonable contemplation of the parties at the time when the servitude was created.
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