GARY ALEXANDER GARDEN & CAMELIA JULIA GARDEN v. EDMOND JOHN ARROWSMITH & JANE CHRISTINE ARROWSMITH [2013] ScotSC 4 (14 January 2013)

GARY ALEXANDER GARDEN & CAMELIA JULIA GARDEN v. EDMOND JOHN ARROWSMITH & JANE CHRISTINE ARROWSMITH [2013] ScotSC 4 (14 January 2013)

The 1992 disposition created an heritable and irredeemable servitude right of access in favour of the respondents, as the clause satisfied the requirements for such a right, including reference to successors in title, an obligation to insert in future transmissions, and a declaration of a real and preferable burden. The absence of a garage at the time of disposition did not prevent the creation of the servitude right.

Citation
[2013] ScotSC 4
Parties
Pursuers and Respondents: Gary Alexander Garden and Camelia Julia Garden; Defenders and Appellants: Edmond John Arrowsmith and Jane Christine Arrowsmith
Jurisdiction
Scotland
Judgment Date
14 January 2013
Procedural Posture
Civil Appeal / Appeal Against Sheriff's Interlocutor
Outcome
Appeal refused; sheriff's interlocutor affirmed
Legal Topics
Servitude Rights, Heritable Property, Real Burdens, Access Rights
Property Law Servitude Rights Heritable Property Real Burdens Access Rights

Case Brief

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Parties

Gary Alexander Garden and Camelia Julia Garden

Pursuers and Respondents

Edmond John Arrowsmith and Jane Christine Arrowsmith

Defenders and Appellants

Procedural Posture

Civil Appeal / Appeal Against Sheriff's Interlocutor

Legal Issues

  1. 1 Whether the 1992 disposition created an heritable and irredeemable servitude right of access
  2. 2 Whether the right of access was personal or real and enforceable by successors in title

Ratio Decidendi

The 1992 disposition created an heritable and irredeemable servitude right of access in favour of the respondents, as the clause satisfied the requirements for such a right, including reference to successors in title, an obligation to insert in future transmissions, and a declaration of a real and preferable burden. The absence of a garage at the time of disposition did not prevent the creation of the servitude right.

Court Disposition

Appeal refused; sheriff's interlocutor affirmed

Orders

  • Respondents have a right of access to their garage over the appellants' ground
  • Expenses follow success; appeal suitable for employment of counsel