Clarification of servitude rights for industrial building
3 September 2011
When it comes to owning property, you can usually expect to have peaceful and quiet enjoyment of your land. But ownership can come with a catch – often in the form of servitudes. A neighbour could have rights to access or cross your land in various ways.
The list of recognised servitudes and the potential for this list to be added to is an issue that has been subject to legal debate. Inksters were involved with an extremely high-profile case that created a new servitude of a right to park (Moncrieff v Jamieson). Now, it would appear that the right to projecting pipes from a building could join that list in a case that will be of interest to those who own or adjoin industrial structures.
A company called Compugraphics owned a factory in the Fife town of Glenrothes. The property had air conditioning pipework and ducts that projected out of the side of the building and overhung outwith the boundaries of the property. These ducts were supported by stanchions that were concreted into the ground of the factory next door. Compugraphics had been tenants of the building since 1971 and bought the property in 1983. The ducts were in place throughout this time, and when the neighbour, Colin Nikolic, bought the adjoining property in 2007.
Next, relations between the neighbours began to sour. E-mails were exchanged regarding the pipes and associated stanchions, which stated that due to redevelopment work, they would be removed and ‘dumped’ in the car park of Compugraphics and the bill for removal also sent to them. Compugraphics sought protection from this happening through the courts, and clarification as to their right to the pipework and support to remain in place.
It is generally accepted that the owner of a property owns that property from the centre of the earth up to the heavens, and is entitled to be free of overhanging items or obstructions on their land.
However, it was confirmed by the court that although it was clear that Mr Nikolic owned the land beneath the pipes and the associated stanchions, it was perfectly possible for there to be a servitude of overhang, known as jus projiciendi and there was, subject to confirmation of facts, a clear servitude of support, even if not support between buildings. The court looked at other legal jurisdictions in order to clarify matters. Furthermore, the length of time the pipe work and supports had been in place may mean that right of servitude had become legally enforceable after a period of twenty years, a process known as prescription.
Ultimately, the matter was referred to another court to settle but guidance was also given by way of the court highlighting section 77 of the Title Conditions (Scotland) Act 2003 where there is a servitude right for pipes being led over or under the land. It will be useful to have clarification on this issue once the Inner House at the Court of Session have reached a decision and thus potentially created another servitude, and one that surely must affect many – if confirmed.
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