A recent case involving an events and wedding venue gives pause for thought on the drafting of servitudes (rights that benefit one piece of land over another adjoining piece of land) and the care required to ensure that the necessary ancillary rights are expressly included.
The facts of the case have been considered previously by the Sheriff Court and will be familiar to many.
Mr and Mrs Macallan bought the Mansion House at Carphin Estate in 2016. The Macallans were granted a servitude right of access over a single track road giving access to the Mansion House through farmland formerly part of the estate and, at the time of the case, owned by the Arbuckles. The road was single track, such that if vehicles met on the road, one driver would be required to make use of the passing places or verges to allow each to proceed.
The servitude in favour of the Macallans was granted:
"from the public road over the private access roadway coloured green on plan no 1 and plan no 2"
The roadway was clearly coloured green on the relevant plans and, to the extent the road crossed the farmland, did not include the verges and passing places.
Relations between the Macallans and the Arbuckles deteriorated, reportedly due to the increased traffic caused by the Macallans' business hiring the property as an events and wedding venue and the behaviour of some of their guests, and it appears that steps were taken to prevent use of the verges and passing places by the Macallans and their guests.
The Initial Action
In the initial action, the Macallans sought declarator that their servitude rights were being obstructed and interdict against that obstruction. The Sheriff Court dismissed the action - the disposition in favour of the Macallans defined the nature and extent of the Macallans' rights and in the absence of ambiguity or uncertainty, there was no basis for examining circumstantial evidence such as past use of the passing places and verges.
The Second Attempt
Macallan v Arbuckle (No 2) was, rather than an appeal against the original decision in the Sheriff Court, an appeal against the decision of the Sheriff Court in a new and separate action by the Macallans (albeit the facts were the same). In this second attempt by the Macallans, they sought declarator that they enjoyed a right, ancillary to the express servitude right of access over the road, to use the passing places and verges to allow vehicles to pass and an interdict from obstruction of the passing places and verges.
The Sheriff Court and, on appeal, the Sheriff Appeal Court found that the express grant of the servitude right of access did not include an ancillary implied right to use the verges and passing places.
The Sheriff Appeal Court confirmed the correct approach for determining the nature of an express grant and the extent of ancillary rights flowing from an express grant was that set out in Johnston v Davidson. That approach involved:
- determining what is meant by the express grant by ascertaining the correct interpretation of the grant and if the terms are ambiguous, by having regard to the surrounding circumstances; and having done so
- determining what ancillary rights are necessary for the comfortable enjoyment of the servitude.
With regards to the first limb of the test, the grant in this case was clear and unambiguous and accordingly any evidence regarding the character of exercise of the servitude at the time of the grant was not relevant.
With regards to the second limb of the test, the Sheriff acknowledged that a benefitted proprietor may enjoy such ancillary rights as are necessary for the comfortable use and enjoyment of the servitude and that in determining whether such rights existed, it was necessary to have regard to the surrounding circumstances at the time of the grant. That said, the declarator sought would amount to an extension of the geographical extent of the servitude area (the passing places and verges lay outwith the area coloured green over which the servitude right was granted) rather than the implication of an ancillary right necessary for the comfortable enjoyment of the servitude itself. This was a different scenario than that presented in previous cases on ancillary rights (e.g. Moncrieff v Jamieson or Johnston v Davidson) where the pertinent issue was the nature or extent of rights over the burdened property only (and not an extension of the burdened property itself).
- In order to establish the nature of a servitude granted expressly and the extent of any ancillary rights, the test in Johnston v Davidson should be applied.
- The circumstances surrounding the grant of servitude will be relevant only where the terms of the grant are ambiguous; and
- Ancillary rights will be determined by reference to those which are necessary for the comfortable enjoyment of the servitude granted and the circumstances surrounding the grant will be relevant in determining whether such rights exist.
- Ancillary rights will be more readily inferred if they are exercisable within the extent of the burdened property. Any attempt to claim ancillary rights similar to those expressly granted, though relating to an area beyond the clearly defined burdened property, may be treated as an attempt to extend the burdened property, as was the case here.
- Care needs to be taken when drafting servitudes to ensure all necessary rights are properly included and to avoid this not so happily ever after ending.
 Macallan v Arbuckle, 11 June 2019, Dundee Sheriff Court (Conveyancing 2019 Case (2019))
 Macallan v Arbuckle, 11 June 2019, Dundee Sheriff Court (Conveyancing 2019 Case (2019)
  SAC (Civ) 9
  SAC (Civ) 22
  UKHL 42, 2008 SC (HL) 1
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