Marshall & Anor v. Duffy & Anor [2002] ScotCS 64 (8th March, 2002)

Marshall & Anor v. Duffy & Anor [2002] ScotCS 64 (8th March, 2002)

The pursuers are entitled to a servitude right of vehicular and pedestrian access over both the service or access road and the access drive, as these rights are clearly vested by the terms of the registered titles, and, alternatively, by implication as necessary for the enjoyment of the property. The defenders' arguments based on prior exclusions in dispositions are rejected because the registered titles are definitive.

Citation
[2002] ScotCS 64
Parties
Pursuer: David Marshall; Pursuer: Mrs Christine Margaret Marshall; Defender: Brian Duffy; Defender: Susanne Stevenson
Jurisdiction
Scotland
Procedural Posture
Civil / Procedure Roll (pleadings Debate)
Outcome
Case put out By Order for further submissions on the precise layout and extent of access rights; pursuers' entitlement to servitude access rights affirmed in principle.
Legal Topics
Servitude Rights of Access, Land Registration, Interpretation of Land Certificates, Implied Servitudes, Division of Heritable Property
Property Law Conveyancing Servitudes Servitude Rights of Access Land Registration Interpretation of Land Certificates Implied Servitudes Division of Heritable Property

Case Brief

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Parties

David Marshall

Pursuer

Mrs Christine Margaret Marshall

Pursuer

Brian Duffy

Defender

Susanne Stevenson

Defender

Procedural Posture

Civil / Procedure Roll (pleadings Debate)

Legal Issues

  1. 1 Whether the pursuers are entitled to a servitude right of pedestrian and vehicular access over the service or access road and access drive to the Paddock property
  2. 2 Whether such rights arise by express grant or implication from the conveyancing history and land certificates
  3. 3 Interpretation of land certificates and effect of exclusions in prior dispositions

Ratio Decidendi

The pursuers are entitled to a servitude right of vehicular and pedestrian access over both the service or access road and the access drive, as these rights are clearly vested by the terms of the registered titles, and, alternatively, by implication as necessary for the enjoyment of the property. The defenders' arguments based on prior exclusions in dispositions are rejected because the registered titles are definitive.

Court Disposition

Case put out By Order for further submissions on the precise layout and extent of access rights; pursuers' entitlement to servitude access rights affirmed in principle.

Orders

  • Case put out By Order for further submissions on interlocutor framing and property layout.