Aberdeen City Council v. Wanchoo [2006] ScotCS CSOH_196 (19 December 2006)

Aberdeen City Council v. Wanchoo [2006] ScotCS CSOH_196 (19 December 2006)

The defender and his predecessor used the site for access openly, peaceably, and as of right for over twenty years, based on an assurance from the council and not under the lease or by tolerance. The requirements for acquisition of a servitude right by positive prescription under s.3(2) of the Prescription and Limitation (Scotland) Act 1973 are satisfied. The defender has acquired a servitude right of access over the site.

Citation
[2006] ScotCS CSOH_196
Parties
Pursuer: Aberdeen City Council; Defender: Alok Wanchoo
Jurisdiction
Scotland
Judgment Date
19 December 2006
Procedural Posture
Civil / Judgment After Proof
Outcome
Defender assoilzied from the conclusions of the summons; declarator granted in favour of the defender on the counterclaim.
Legal Topics
Servitude Rights, Positive Prescription, Lease Termination, Access Rights, Personal Bar
Property Law Scots Law Servitude Rights Positive Prescription Lease Termination Access Rights Personal Bar

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Parties

Aberdeen City Council

Pursuer

Alok Wanchoo

Defender

Procedural Posture

Civil / Judgment After Proof

Legal Issues

  1. 1 Whether the defender has acquired a servitude right of access over the site by positive prescription
  2. 2 Whether the use of the site for access was as of right or by tolerance or under lease
  3. 3 Whether the lease or any assurance by the council precluded acquisition of a servitude right

Ratio Decidendi

The defender and his predecessor used the site for access openly, peaceably, and as of right for over twenty years, based on an assurance from the council and not under the lease or by tolerance. The requirements for acquisition of a servitude right by positive prescription under s.3(2) of the Prescription and Limitation (Scotland) Act 1973 are satisfied. The defender has acquired a servitude right of access over the site.

Court Disposition

Defender assoilzied from the conclusions of the summons; declarator granted in favour of the defender on the counterclaim.

Orders

  • Pursuer's pleas in law repelled
  • Defender assoilzied from the conclusions of the summons