Shop Fronts And Servitudes
The recent decision in Romano v Standard Commercial Property
Securities Ltd and Another revisits the possibility of
recognising new servitudes that was the subject of last year's
House of Lords decision in Moncrieff v Jamieson.
In Romano, the owner of a shop fronting onto Buchanan
Street in Glasgow sought a court order declaring that he had a
servitude right to attach a shop front and fascia onto the external
wall which was owned in common by all the proprietors of the
building.
There was a Compulsory Purchase Order procedure underway and
there was a discussion of whether this would undermine the action
as the Lands Tribunal could decide in due course whether a
servitude existed and what its value might be. The Court dismissed
this argument ? the fact that the servitude may or may
not be considered by the Lands Tribunal did not affect the present
action.
The Court acknowledged that for a servitude right to be valid,
it must be a servitude known to the law or at least similar in
nature. The leading textbook authority in this area considers that
there is no recognised servitude of signage or shop front, and in
Romano the Court agreed. Conversely, in Moncrieff
the House of Lords were more open to recognising a servitude right
of parking and held that the right to park on the proprietor's
neighbouring property was ancillary to a right of access, although
much rested on the "particular and unusual circumstances"
of the case. In Moncrieff the Court considered that if a
servitude of parking could exist as an ancillary right, it could
also exist as a standalone right. However in Romano there
was no suggestion that the servitude of signage was ancillary to
any other right, which was the principal reason that the Court was
unwilling to recognise it. There is authority that there can be a
servitude right to erect a sign from the 1888 case of Cunningham v
Stewart, however in that case the decision turned on the fact that
the right to affix a sign had been strictly ancillary to an
existing right of access along a close. Indeed, in Romano
it was recognised that shop signs are not a new thing and if a
servitude right of signage did exist, it would have been recognised
by the authorities centuries ago.
Servitudes can also be created by prescription, meaning,
broadly, if the servitude has been possessed for a continuous
period of 20 years openly, peaceably and without judicial
interruption then it cannot be challenged. In Romano this argument
was advanced...
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