Inverness Seafield Development Co Ltd v DCS MacKintosh [2000] ScotCS 288 (16 November 2000)

Inverness Seafield Development Co Ltd v DCS MacKintosh [2000] ScotCS 288 (16 November 2000)

The defender is not entitled to insist on inserting an express servitude of access into the disposition, as any right of access over the option land arises only by implication of law in case of necessity and is extinguished when necessity ceases. An express servitude would be more burdensome and fundamentally different in nature from the implied right, and the defences to the action are therefore irrelevant.

Citation
[2000] ScotCS 288
Parties
Pursuer and Reclaimer: Inverness Seafield Development Company Limited; Defender and Respondent: D. C. S. MacKintosh
Jurisdiction
Scotland
Judgment Date
16 November 2000
Procedural Posture
Reclaiming Motion (appeal) / Inner House, Court of Session, Opinion of the Court
Outcome
Reclaiming motion allowed; Lord Ordinary's interlocutor recalled; pursuer's pleas-in-law sustained; decree de plano granted.
Legal Topics
Servitudes, Implied Rights of Access, Landlocked Land, Missives of Sale, Express Vs Implied Servitude, Business Efficacy in Contracts
Property Law Contract Law Servitudes Implied Rights of Access Landlocked Land Missives of Sale Express Vs Implied Servitude Business Efficacy in Contracts

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Inverness Seafield Development Company Limited

Pursuer and Reclaimer

D. C. S. MacKintosh

Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) / Inner House, Court of Session, Opinion of the Court

Legal Issues

  1. 1 Whether the defender is entitled to insert an express reservation of a servitude of access in the disposition implementing the missives.
  2. 2 Whether the pursuer's exercise of the option was unreasonable and invalid for rendering the retained land landlocked.

Ratio Decidendi

The defender is not entitled to insist on inserting an express servitude of access into the disposition, as any right of access over the option land arises only by implication of law in case of necessity and is extinguished when necessity ceases. An express servitude would be more burdensome and fundamentally different in nature from the implied right, and the defences to the action are therefore irrelevant.

Court Disposition

Reclaiming motion allowed; Lord Ordinary's interlocutor recalled; pursuer's pleas-in-law sustained; decree de plano granted.

Orders

  • Recall of Lord Ordinary's interlocutor.
  • Sustain the pleas-in-law for the pursuer.