THE FIRM OF JOHNSON, THOMAS AND THOMAS & Ors AGAINST THOMAS SMITH AND T G & V PROPERTIES Ltd AND CLYDE GATEWAY DEVELOPMENTS Ltd [2016] ScotSC 50 (03 August 2016)

THE FIRM OF JOHNSON, THOMAS AND THOMAS & Ors AGAINST THOMAS SMITH AND T G & V PROPERTIES Ltd AND CLYDE GATEWAY DEVELOPMENTS Ltd [2016] ScotSC 50 (03 August 2016)

A free-standing servitude right of vehicular parking can competently exist in Scots law as it is similar in nature to types recognised by Moncrieff v Jamieson and other authorities; such a right is not inherently repugnant with ownership of the servient tenement; specification in the crave is adequate as the civiliter principle and common law regulate the manner of exercise; factual issues require proof before answer.

Citation
[2016] ScotSC 50
Parties
Pursuer: THE FIRM OF JOHNSON, THOMAS and THOMAS and OTHERS; First Defender: THOMAS SMITH; Second Defender: T G & V PROPERTIES LIMITED; Third Defender: CLYDE GATEWAY DEVELOPMENTS LIMITED
Jurisdiction
Scotland
Judgment Date
03 August 2016
Procedural Posture
Civil (scottish Sheriff Court) / Interlocutory Judgment on Preliminary Pleas; Proof Before Answer Allowed
Outcome
Proof before answer allowed; certain pleas repelled; expenses reserved.
Legal Topics
Servitudes, Prescriptive Rights, Parking Rights, Specification of Pleadings, Repugnancy With Ownership
Property Law Real Rights Servitudes Prescriptive Rights Parking Rights Specification of Pleadings Repugnancy With Ownership

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 4 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

THE FIRM OF JOHNSON, THOMAS and THOMAS and OTHERS

Pursuer

THOMAS SMITH

First Defender

T G & V PROPERTIES LIMITED

Second Defender

CLYDE GATEWAY DEVELOPMENTS LIMITED

Third Defender

Procedural Posture

Civil (scottish Sheriff Court) / Interlocutory Judgment on Preliminary Pleas; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether Scots law recognises a free-standing servitude right of vehicular parking independent of a primary right of access
  2. 2 Whether such a servitude, unlimited as to number/type of vehicles, is repugnant with ownership of the servient tenement
  3. 3 Whether the pursuers' crave for declarator provides sufficient specification of the nature and extent of the servitude right

Ratio Decidendi

A free-standing servitude right of vehicular parking can competently exist in Scots law as it is similar in nature to types recognised by Moncrieff v Jamieson and other authorities; such a right is not inherently repugnant with ownership of the servient tenement; specification in the crave is adequate as the civiliter principle and common law regulate the manner of exercise; factual issues require proof before answer.

Court Disposition

Proof before answer allowed; certain pleas repelled; expenses reserved.

Orders

  • Repels plea-in-law number 2 for the first and second defenders.
  • Repels plea-in-law number 1 for the pursuer due to want of insistence.