ORKNEY HOUSING ASSOCIATION LIMITED v. MOIRA ATIKINSON AND THOMAS ATKINSON [2011] ScotSC 117 (14 July 2011)

ORKNEY HOUSING ASSOCIATION LIMITED v. MOIRA ATIKINSON AND THOMAS ATKINSON [2011] ScotSC 117 (14 July 2011)

The pursuers, as registered proprietors in possession, are entitled to the right of access over the Esgar Road as described in their title sheet. The register cannot be rectified to their prejudice in the absence of any applicable exception under section 9(3) of the 1979 Act. The defenders' averments regarding abandonment or extinction of the right of access are irrelevant, and the pursuers are entitled to declarator of their right of access.

Citation
[2011] ScotSC 117
Parties
Pursuers and Appellants: Orkney Housing Association Limited; Defender and Respondent: Moira Atkinson; Defender and Respondent: Thomas Atkinson
Jurisdiction
Scotland
Judgment Date
14 July 2011
Procedural Posture
Civil Appeal / Appeal From Sheriff Court Interlocutor Dated 15 October 2010
Outcome
Appeal allowed. Sheriff’s interlocutor of 15 October 2010 recalled. Declarator granted in favour of pursuers. Counterclaim dismissed. Proof allowed only on damages claim. Defenders found liable in expenses.
Legal Topics
Servitude Rights of Access, Rectification of Land Register, Proprietor in Possession, Prescription and Abandonment of Servitude, Land Registration (scotland) Act 1979
Property Law Land Registration Servitude Rights of Access Rectification of Land Register Proprietor in Possession Prescription and Abandonment of Servitude Land Registration (scotland) Act 1979

Case Brief

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Parties

Orkney Housing Association Limited

Pursuers and Appellants

Moira Atkinson

Defender and Respondent

Thomas Atkinson

Defender and Respondent

Procedural Posture

Civil Appeal / Appeal From Sheriff Court Interlocutor Dated 15 October 2010

Legal Issues

  1. 1 Whether the pursuers have a right of access for all purposes over the Esgar Road as registered proprietors
  2. 2 Whether the defenders' averments of abandonment or extinction of the right of access by prescription are relevant
  3. 3 Whether the register can be rectified to delete the right of access in the circumstances

Ratio Decidendi

The pursuers, as registered proprietors in possession, are entitled to the right of access over the Esgar Road as described in their title sheet. The register cannot be rectified to their prejudice in the absence of any applicable exception under section 9(3) of the 1979 Act. The defenders' averments regarding abandonment or extinction of the right of access are irrelevant, and the pursuers are entitled to declarator of their right of access.

Court Disposition

Appeal allowed. Sheriff’s interlocutor of 15 October 2010 recalled. Declarator granted in favour of pursuers. Counterclaim dismissed. Proof allowed only on damages claim. Defenders found liable in expenses.

Orders

  • Appeal allowed and sheriff's interlocutor of 15 October 2010 recalled.
  • First and second pleas in law for pursuers sustained; fifth plea in law sustained except as to damages claim.