Neighbourly discord and rights of access

Morton Fraser_Hazel Noble
Hazel Noble
Trainee Solicitor
09 December 2021
Real Estate

Can a neighbour prevent you from building on your own land? 

In the recent Inner House case of Soulsby v Jones [2021], the court has ruled otherwise.

Major Soulsby, who owned a seaside property in Elie, Fife, has lost his appeal in the Inner House of the Court of Session against the decision that he did not have a servitude right of access over a strip of land owned by his neighbours for the purposes of inspection, maintenance and repair of his property. 

The Facts

Major Soulsby, the pursuer, and Mr and Mrs Jones, the defenders, owned neighbouring seaside houses in Elie, Fife. Between the houses was a narrow strip of land, part of which was owned in common by the parties, with the latter half owned solely by Mr and Mrs Jones. The strip was just wide enough to allow access for repairs and, from time to time, Major Soulsby took access to it for the purposes of maintaining his property.  

In 2016, a dispute arose when Mr & Mrs Jones extended their house, which narrowed the strip of land significantly. Although Mr Soulsby had objected to the extension at the time, the building work had still gone ahead. 

Arguing that he had a right of access over the strip for the purposes of carrying out repairs, Major Soulsby now sought the removal of the extension to the extent that it was built on the strip.

The Court's Decision and Reasoning

Outer House

The case was argued mainly on the basis that a servitude had been established by prescription, but with an additional argument to the effect that there was a servitude by necessity.

The pursuer led evidence that he, and the previous owners of his property, had taken access over the strip of land since at least 1966 for the repair and upkeep of the western side of his property.

The defenders, on the other hand, maintained the pursuers had only taken access occasionally, and that permission had always been sought. 

On the evidence, Lady Carmichael concluded the only use of regularity and frequency which had occurred was access for the purpose of window cleaning, which took place 'at most ten times per year'. This was not sufficient for the purposes of prescription.

Furthermore, she was unconvinced there was a servitude by necessity. Previous caselaw did not support one in the circumstances and to allow one would 'sterilise[s] the neighbouring property to the extent of preventing its proprietor from exercising the liberty to build on his land'.

Appeal to the Inner House 

Unsatisfied with the decision, this September, Major Soulsby took his case to the Inner House.

However, Lord Carloway again found that none of the evidence was sufficient to establish by prescription a servitude right of access for cleaning, maintenance or inspection. The pursuer had 'failed to discharge the onus on him to establish possession of the requisite quality and frequency'.

Agreeing with Lady Carmichael, he concurred there was no servitude of necessity and that allowing one would 'Contradict the principle of freedom in the use of land'.

Key points to take away

  • The case reinforces the difficulties in establishing a prescriptive servitude right of access. Even where access has been taken for a period of over 20 years, substantial evidence of actions equivalent to the assertion of a right, must be provided.
  • It is a reminder that whilst goodwill may be expected amongst neighbours, particularly those that live in close proximity to one another, mere tolerance or permission in this context - allowing access for occasional repairs for example - does not in itself create a servitude right.
  • Finally, the decision does not challenge servitudes of access for repair as such, but it does highlight that the court will avoid an expansive approach to the constitution of off register rights including servitudes of necessity. To do otherwise, would go against the presumption in favour of the freedom of use of land by the owner.

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