A recent case on servitudes has declined to recognise a new form of right in relation to shop fronts, the House of Lords decision in Moncrieff v Jamieson notwithstanding

The recent decision in Romano v Standard Commercial Property Securities Ltd [2008] CSOH 105 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, that 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. However in the end, the court considered that although it may well have been possible to put forward a good case for this, the pursuer had not provided enough details of the open and peaceful use of the servitude, and the argument failed.

So where does this leave the possibility of creating (or recognising) new servitudes? There would seem to be little doubt that it is possible to recognise a “new” servitude, although some link to the existing categories of servitude rights must be shown. After all, a servitude right of parking may seem to be a product of modern life, but in Moncrieff, the Lords made comparisons to the old stances used by drovers and herders and the rights of Roman quarriers. To establish a new servitude which is not already known to the law, it is necessary at least to show that it is praedial, meaning that it is connected to the land and not just to the current proprietor, and that it is similar in nature and quality to one of the existing servitude rights.

The Author
Craig Blackwood is a second year trainee with Biggart Baillie, Glasgow.
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