Commentary on the House of Lords decision in the servitude case Moncrieff v Jamieson, which the author believes will be of great benefit to the law

Moncrieff v Jamieson [2007] UKHL 42; 2007 SLT 989 is one of the most significant cases to have been decided in relation to Scots property law for some time. After years of litigation, progressing from the sheriff court and through the Inner House of the Court of Session, the House of Lords determined that a person who owned land at the bottom of what was effectively a sea cliff could park their car on land owned by someone else at the top of the cliff and then proceed into their own property on foot.

A conveyance of the land at the foot of the cliff had granted the dominant proprietor a baldly stated servitude of access. It was expressed in terse terms: “a right of access from the branch public road through Sandsound”. The point at issue was whether the servitude right of access included the ancillary right of parking a car at the top of the cliff. The House of Lords answered this question in the affirmative. The decision was unanimous.

Clarity, or free-for-all?

Traditional property lawyers might immediately feel surprised. After all, servitudes are supposed to be strictly construed and the terms of the deed in question said nothing about parking. Whatever happened to the presumption of freedom? For years there has been debate about whether there could indeed be a servitude of parking, or whether that would so affect the property right of the servient proprietor that the right claimed would be regarded as incompatible with ownership of the servient tenement.

The Moncrieff case seems, at the very least, to open the door to such a possibility. Indeed, it probably does far more than that. Some traditional property lawyers may feel the law on servitudes has now degenerated into an unseemly free-for-all. The numerus clausus gave it a respectability and structure. However, it is far from being the case that the law of servitudes is now a swamp of uncertainty. The Moncrieff decision is to be heartily welcomed by property lawyers as providing much needed clarity in a difficult field.

Moncrieff has extensive implications for the drafting of conveyancing deeds. It is likely to prove to be a lawyer’s friend when, as inevitably happens, years later he or she is challenged about some important detail that has been overlooked in the drafting.

Identifying ancillary rights

What then did the case decide? The oddity is that the real importance of the case is not about car parking in particular.

In the first place, the House of Lords accepted the longstanding position that ancillary rights can be implied into servitudes where they are not expressly excluded. This is something familiar to conveyancers. For centuries it has been accepted that a servitude of way includes rights of lateral and vertical support of the road, and rights to repair and maintain the road. This is such trite law that it has often been overlooked just how unusual it is. No such ancillary rights would be implied into real burdens – the close juristic cousins of servitudes. Instead, the full measure of the obligation requires to be spelled out in the relevant deed.

Secondly, the House of Lords determined the test by which such ancillary rights are implied into servitudes. In this regard Moncrieff provides much needed clarification. In the past Scottish conveyancers have been very cautious and the working assumption appears to have been that only such rights as are absolutely necessary to make the servitude work will be implied. This is why, for example, despite some supportive authority (Wimpey Homes Holdings Ltd v Collins 1999 SLT (Sh Ct) 17; Stevenson v Biggart (1867) 3 SLR 184; and Alvis v Harrison 1991 SLT 64), there has always been a certain nervousness about implying the ancillary right on the part of the dominant proprietor to improve and upgrade a road subject to a servitude.

That traditional approach appears to have been the approach of Lord Rodger in the Moncrieff case (at para 86). However, the other four judges provided a more generous test, in terms of which an ancillary right will be implied if it is reasonably necessary for the comfortable enjoyment of the servitude (Lord Hope at para 26; Lord Scott at 52; Lord Mance at 101; and Lord Neuberger at 110-117).

This is no test of absolute necessity that requires that if the ancillary right is absent, the servitude will fail. It is a test that responds to modern conditions. The answer it will provide will vary from site to site depending on circumstances. However, it has improved the lot of the dominant proprietor, because until now that proprietor had always felt bound by the perceived trammels of the principle of strict construction. Albeit it was repeated in Moncrieff v Jamieson that servitudes are subject to a strict construction, it is now clear as a bell that servitudes never have been as strictly construed as real burdens at common law. For servitudes, it is strict construction tempered by a purposive construction.

Thirdly, the ancillary rights implied into servitudes are just as real as the servitude itself. The dominant proprietor in Moncrieff could enforce the ancillary right of car parking against anyone unlawfully interfering with the same. This included, but was not restricted to, the servient proprietor.

Fourthly, only after the extent of the servitude right was determined by appropriate canons of construction, i.e. only after all express rights and implied ancillary rights had been determined, did one apply the principle of civiliter exercise. This principle relates to the exercise of servitudes and not the ascertainment of their extent. This should also be the case in relation to the separate principle that a servitude should not be exercised in such manner as to cause a burden to fall on the servient tenement that is greater than the lawful burden.

Freedom to the drafter

All of the above is relevant to the implication into a servitude of many ancillary rights far different from parking. Indeed there is no numerus clausus of such implied ancillary rights. A particular activity might be justified as a right ancillary to a servitude albeit it might not exist as a servitude in its own right. So, in this regard conveyancers are given a degree of freedom. Do servitudes of access usually come accompanied by ancillary rights of repair and maintenance? Of course. Can the right of support of the road or the drainage of surface water be an ancillary right? Clearly, yes. Indeed, in appropriate cases so could upgrading a road to adoptable standard, placing a fence on either side of the road, parking at the side of the road, painting traffic directions, erecting signs and placing pavements on a road. Inevitably, it would have been better to have provided for such additional rights by express drafting in the first place, but the decision in Moncrieff assists when the drafting is less than fully comprehensive.

In this context, the issue of car parking retreats into the background as a most interesting illustration of the general principle, but not one that should be regarded as wildly unusual. The decision in Moncrieff v Jamieson is no fantastic aberration of jurisprudence on special facts that will have marginal application. It is a very fine example of a case that will have application every time a servitude is granted or reserved. This is an example of the Judicial Committee of the House of Lords working at its very best.

Roderick R M Paisley is Professor of Commercial Property Law in the University of Aberdeen

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