Peart & Anor v. Legge [2006] ScotSC 28 (05 April 2006)

Peart & Anor v. Legge [2006] ScotSC 28 (05 April 2006)

The servitude right of access granted in 1981 falls within the category of res merae facultatis, being a future right to breach a wall and access, and is therefore imprescriptible under the Prescription and Limitation (Scotland) Act 1973; the authority of Smith v Stewart is directly applicable and binding.

Citation
[2006] ScotSC 28
Parties
Pursuer: Barry Peart; Pursuer: Susan Anne Peart; Defender: Symon B Legge
Jurisdiction
Scotland
Judgment Date
05 April 2006
Procedural Posture
Civil / Preliminary Pleas, Debate on Prescription and Servitude
Outcome
Defender's third Plea-in-law sustained; first Plea-in-law for Defender sustained to extent of dismissing Pursuers' first Crave; second and third Pleas-in-law for Pursuers repelled; procedural hearing appointed.
Legal Topics
Servitude, Prescription, Res Merae Facultatis, Negative Prescription, Impresscriptibility
Property Law Scots Law Servitude Prescription Res Merae Facultatis Negative Prescription Impresscriptibility

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Parties

Barry Peart

Pursuer

Susan Anne Peart

Pursuer

Symon B Legge

Defender

Procedural Posture

Civil / Preliminary Pleas, Debate on Prescription and Servitude

Legal Issues

  1. 1 Whether the servitude right of access granted in 1981 has prescribed under the Prescription and Limitation (Scotland) Act 1973 or is imprescriptible as res merae facultatis

Ratio Decidendi

The servitude right of access granted in 1981 falls within the category of res merae facultatis, being a future right to breach a wall and access, and is therefore imprescriptible under the Prescription and Limitation (Scotland) Act 1973; the authority of Smith v Stewart is directly applicable and binding.

Court Disposition

Defender's third Plea-in-law sustained; first Plea-in-law for Defender sustained to extent of dismissing Pursuers' first Crave; second and third Pleas-in-law for Pursuers repelled; procedural hearing appointed.

Orders

  • Excludes specified passages from probation in Condescendence 3 and Record.
  • Appoints cause for procedural hearing and to deal with expenses.