GJ against SD and ED (Sheriff Court Civil) [2024] SCAIR 45 (20 March 2024)

GJ against SD and ED (Sheriff Court Civil) [2024] SCAIR 45 (20 March 2024)

The defenders do not have a servitude right of way over the disputed area by implied grant, as reasonable necessity for comfortable enjoyment at the time of division was not established; nor by positive prescription, as 20 years' continuous possession was not proved. The defenders have encroached on the pursuer's property by erecting a shed on land solely owned by the pursuer. The pursuer is not personally barred, has not waived rights, nor acquiesced to the encroachment.

Citation
[2024] SCAIR 45
Parties
Pursuer: GJ; First Defender: SD; Second Defender: ED
Jurisdiction
Scotland
Judgment Date
20 March 2024
Procedural Posture
Civil / Judgment After Proof
Outcome
Declarator and interdict granted in favour of pursuer; order for removal of encroaching outbuilding; defenders' pleas repelled; hearing on expenses appointed.
Legal Topics
Servitude Rights, Positive Prescription, Encroachment, Personal Bar, Waiver, Mora, Taciturnity and Acquiescence
Property Law Civil Procedure Servitude Rights Positive Prescription Encroachment Personal Bar Waiver Mora, Taciturnity and Acquiescence

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Parties

GJ

Pursuer

SD

First Defender

ED

Second Defender

Procedural Posture

Civil / Judgment After Proof

Legal Issues

  1. 1 Whether defenders have a servitude right of way for pedestrians over the pursuer's garden ground by implied grant or positive prescription
  2. 2 Whether defenders have encroached on the pursuer's property by erecting an outbuilding
  3. 3 Whether the pursuer is personally barred, has waived rights, or acquiesced to the encroachment

Ratio Decidendi

The defenders do not have a servitude right of way over the disputed area by implied grant, as reasonable necessity for comfortable enjoyment at the time of division was not established; nor by positive prescription, as 20 years' continuous possession was not proved. The defenders have encroached on the pursuer's property by erecting a shed on land solely owned by the pursuer. The pursuer is not personally barred, has not waived rights, nor acquiesced to the encroachment.

Court Disposition

Declarator and interdict granted in favour of pursuer; order for removal of encroaching outbuilding; defenders' pleas repelled; hearing on expenses appointed.

Orders

  • Finds and declares defenders do not benefit from an unrestricted servitude right of way over the disputed area.
  • Interdicts defenders from entering the pursuer's property in the disputed area except for repair-related servitude rights.