Aberdeen City Council v. Alok Wanchoo [2008] ScotCS CSIH_6 (11 January 2008)

Aberdeen City Council v. Alok Wanchoo [2008] ScotCS CSIH_6 (11 January 2008)

The servitude right of access was constituted by positive prescription, as possession was taken 'as of right' and not by mere tolerance; the lease did not encompass access and did not supersede the prior agreement in principle; personal bar was not the foundation for servitude, but the objective circumstances evidenced real user.

Citation
[2008] ScotCS CSIH_6
Parties
Pursuer and Reclaimer: Aberdeen City Council; Defender and Respondent: Alok Wanchoo
Jurisdiction
Scotland
Judgment Date
11 January 2008
Procedural Posture
Reclaiming Motion / Appeal From Lord Ordinary's Decision
Outcome
reclaiming motion refused; interlocutor of Lord Ordinary adhered to
Legal Topics
Servitude Right of Access, Positive Prescription, Personal Bar, Lease Supersession
Property Law Servitudes Prescription Servitude Right of Access Positive Prescription Personal Bar Lease Supersession

Case Brief

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Parties

Aberdeen City Council

Pursuer and Reclaimer

Alok Wanchoo

Defender and Respondent

Procedural Posture

Reclaiming Motion / Appeal From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether a servitude right of access exists over pursuers' land
  2. 2 Whether possession was taken 'as of right' for purposes of positive prescription
  3. 3 Whether personal bar can found a servitude right

Ratio Decidendi

The servitude right of access was constituted by positive prescription, as possession was taken 'as of right' and not by mere tolerance; the lease did not encompass access and did not supersede the prior agreement in principle; personal bar was not the foundation for servitude, but the objective circumstances evidenced real user.

Court Disposition

reclaiming motion refused; interlocutor of Lord Ordinary adhered to

Orders

  • Declarator granted that defender is entitled to servitude right of access over pursuers' land