HARTON HOMES LIMITED v. MRS ANNE DURK [2012] ScotSC 72 (29 June 2012)

HARTON HOMES LIMITED v. MRS ANNE DURK [2012] ScotSC 72 (29 June 2012)

No implied servitude right of access exists over the defender's property in favour of the pursuer because the servitude claimed was not reasonably necessary for the comfortable enjoyment of the pursuer's land at the time of severance, alternative means of access existed, and there was no common intention or prior use foreshadowing the claimed servitude. The pursuer failed to establish any legal or factual basis for interdict.

Citation
[2012] ScotSC 72
Parties
Pursuer: Harton Homes Limited; Defender: Mrs Anne Durk
Jurisdiction
Scotland
Judgment Date
29 June 2012
Procedural Posture
Civil Property Dispute / Judgment After Proof Before Answer
Outcome
Defender assoilzied (absolved) from the craves of the initial writ; pursuer's pleas repelled; expenses awarded to defender.
Legal Topics
Implied Servitude, Right of Access, Interdict, Title Interpretation
Property Law Servitudes (easements) Implied Servitude Right of Access Interdict Title Interpretation

Case Brief

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Parties

Harton Homes Limited

Pursuer

Mrs Anne Durk

Defender

Procedural Posture

Civil Property Dispute / Judgment After Proof Before Answer

Legal Issues

  1. 1 Whether an implied servitude right of access exists over the defender's property in favour of the pursuer's ground
  2. 2 Whether the servitude is reasonably necessary for the comfortable enjoyment of the pursuer's land
  3. 3 Whether the pursuer is entitled to interdict against the defender

Ratio Decidendi

No implied servitude right of access exists over the defender's property in favour of the pursuer because the servitude claimed was not reasonably necessary for the comfortable enjoyment of the pursuer's land at the time of severance, alternative means of access existed, and there was no common intention or prior use foreshadowing the claimed servitude. The pursuer failed to establish any legal or factual basis for interdict.

Court Disposition

Defender assoilzied (absolved) from the craves of the initial writ; pursuer's pleas repelled; expenses awarded to defender.

Orders

  • Sustains the second, third and fourth pleas-in-law for the defender
  • Assoilzies the defender from the craves of the initial writ