Resolving Rural Disputes Webinar: Servitudes And Car Parking (Video)

• Published date: 19 October 2020
• Subject Matter: Real Estate and Construction, Real Estate, Landlord & Tenant - Leases
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Stephanie Hepburn

Shepherd and Wedderburn's rural disputes team has shared key insights into resolving common problems through a series of coffee break-style webinars. These 15-minute sessions with our rural experts discuss topical issues such as encroachment, car parking, wildlife crime, the right to roam and open water swimming.

Servitudes and car parking

Can we park the issue of whether Scots law recognises a standalone servitude to park vehicles? What can be done when someone is parking unlawfully on land or on a right of access? Stephanie Hepburn and Elaine Brailsford, of our rural disputes team, take a closer look at the key issues arising from servitudes and car parking, and how the landmark case of Moncrieff v Jamieson has influenced recent decisions in this area.

Please see below for a written article examining servitude rights and car parking. You can view and download a pdf copy of this article here.

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Whether Scots law recognises a right of parking was the subject of much legal and academic commentary until the landmark decision of the House of Lords in the case of Moncrieff v Jamieson¹, which confirmed that it is possible for a servitude right to park to be implied as a necessary accessory to an express right of access. Their Lordships also opined that a freestanding right to park (being a right that is not ancillary to a right of access) would also be competent, although it was not relevant to the facts of the case and so it was not judicially determined. The principle that a freestanding right to park can exist in Scots law was confirmed in 2016 by the Sheriff in the case of The Firm of Johnson, Thomas and Thomas and Others v Thomas Smith, T G & V Properties Limited and Others², and was reaffirmed in March 2020 in the case ofMcCabe v Patterson³.

Creation of servitude rights

There are several ways in which a servitude can be created, including by express or implied grant⁴ (or reservation), or by use. Before the Title Conditions (Scotland) Act 2003 came into force, there was no requirement that servitudes show on the title sheet of the burdened property so the policy of the courts was to restrict servitudes to those "known to the law" or very close to one known to the law. The Scottish courts had in effect created a fixed list of servitudes. The idea was that a purchaser could be sure that only a limited number of types of unregistered right could affect the property. Thus an attempt to establish a servitude of sign-hanging⁵ failed because it was not a...