Rubislaw Land Company Ltd v Aberdeen Construction Group Ltd & Ors [1999] ScotCS 91 (30 March 1999)

Rubislaw Land Company Ltd v Aberdeen Construction Group Ltd & Ors [1999] ScotCS 91 (30 March 1999)

The Deed of Conditions is valid and incorporated into the pursuers' title, but does not expressly restrict the servitude of access to a single point or specific location. The pursuers' right of access is not, on the face of the deeds, limited to a particular point, and the defenders' arguments for such a restriction are not supported by the language of the relevant documents. The action is competent and there is a real issue to be resolved at proof regarding the extent and exercise of the access right.

Citation
[1999] ScotCS 91
Parties
Pursuer: Rubislaw Land Company Limited; Defender: Aberdeen Construction Group Limited and Others
Jurisdiction
Scotland
Judgment Date
30 March 1999
Procedural Posture
Civil / Interlocutory (opinion on Legal Arguments, Proof Before Answer Allowed)
Outcome
First plea in law for the defenders repelled; proof before answer allowed.
Legal Topics
Servitude of Access, Interpretation of Deeds of Conditions, Real Burdens, Access Rights, Land Development, Title Conditions
Property Law Real Estate Servitudes and Easements Servitude of Access Interpretation of Deeds of Conditions Real Burdens Access Rights Land Development +1 more

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Parties

Rubislaw Land Company Limited

Pursuer

Aberdeen Construction Group Limited and Others

Defender

Procedural Posture

Civil / Interlocutory (opinion on Legal Arguments, Proof Before Answer Allowed)

Legal Issues

  1. 1 Whether the pursuers have an unqualified servitude right of access over Hill of Rubislaw Road
  2. 2 Whether the Deed of Conditions validly restricts or qualifies the servitude right
  3. 3 Whether the Deed of Conditions is a nullity or effective

Ratio Decidendi

The Deed of Conditions is valid and incorporated into the pursuers' title, but does not expressly restrict the servitude of access to a single point or specific location. The pursuers' right of access is not, on the face of the deeds, limited to a particular point, and the defenders' arguments for such a restriction are not supported by the language of the relevant documents. The action is competent and there is a real issue to be resolved at proof regarding the extent and exercise of the access right.

Court Disposition

First plea in law for the defenders repelled; proof before answer allowed.

Orders

  • Repel first plea in law for defenders
  • Allow proof before answer