Nationwide Building Society v. Walter D Allan Ltd [2004] ScotCS 198 (04 August 2004)

Nationwide Building Society v. Walter D Allan Ltd [2004] ScotCS 198 (04 August 2004)

The express grant of a right of access in the defenders' titles does not include a right to park on the pursuers' property. Scots law does not recognise an independent servitude right of parking by prescription, and the defenders' averments are insufficient to establish such a right. The parking claimed would deprive the pursuers of all practical use of their property, which is contrary to fundamental principles of servitude rights.

Citation
[2004] ScotCS 198
Parties
Pursuer: Nationwide Building Society; Defender: Walter D Allan Ltd
Jurisdiction
Scotland
Judgment Date
04 August 2004
Procedural Posture
Civil / Procedure Roll (preliminary Plea)
Outcome
Defenders' pleas in law repelled; pursuers' third plea in law sustained; decree de plano granted for pursuers.
Legal Topics
Servitude Rights, Prescription, Parking Rights, Access Rights
Property Law Servitude Rights Prescription Parking Rights Access Rights

Case Brief

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Parties

Nationwide Building Society

Pursuer

Walter D Allan Ltd

Defender

Procedural Posture

Civil / Procedure Roll (preliminary Plea)

Legal Issues

  1. 1 Does the defender have a servitude right to park on the pursuer's property?
  2. 2 Can a servitude right of parking be acquired by prescription under Scots law?
  3. 3 Is parking an incident of a servitude right of access?

Ratio Decidendi

The express grant of a right of access in the defenders' titles does not include a right to park on the pursuers' property. Scots law does not recognise an independent servitude right of parking by prescription, and the defenders' averments are insufficient to establish such a right. The parking claimed would deprive the pursuers of all practical use of their property, which is contrary to fundamental principles of servitude rights.

Court Disposition

Defenders' pleas in law repelled; pursuers' third plea in law sustained; decree de plano granted for pursuers.

Orders

  • Interdict granted against defenders from parking vehicles on pursuers' parking area except for loading/unloading or boarding/alighting.