Servitude Rights Of Access: The Teaspoon Test

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Overview of a recent judgment which demonstrates the general principle that a servitude cannot be repugnant with the burdened proprietor's ownership.
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Overview of a recent judgment which demonstrates the general principle that a servitude cannot be repugnant with the burdened proprietor's ownership. 


Disagreements about parking are fairly common-place among neighbours. It is less common, however, for them to make it all the way to debate in the local Sheriff Court. 

A recent judgment from Livingston Sheriff Court followed a debate between next-door neighbours who use the same driveway to access their respective properties. One party benefits from a servitude right of access across a driveway owned by the other. The issue before the Court was whether the burdened owner is required to keep the driveway clear of parked vehicles, such that the benefited owner may always use the whole width and length of the driveway. 


The driveway belongs to the defenders, Mr & Mrs Donald, who are the owners of 44 Whitburn Road. The driveway provides access from the main road to the Donalds' property, and also to the neighbouring property, number 46, belonging to the pursuers Mr & Mrs Doolan. A servitude granted in 2009 gave the Doolans a right of access to and from their property over the driveway. The Donalds and their guests sometimes park on the access driveway, despite there being ample parking within the private driveway adjacent to their house. The Doolans argued that the presence of parked vehicles on the servitude area denies them the freedom to exercise their right of access, and that they should not have to navigate any items on the driveway in order to exercise the right. It was suggested that the Donalds ought to have reserved specific rights for parking within the deed of servitude, and that it was not for the courts to rescue them from a “bad bargain.” As the road provides the only means of access to the Donalds' property, it was argued that its only purpose is access; parking was said to be “clearly different” because the Donalds are able to park elsewhere on their land, outwith the servitude area. 

The benefited owner argued that the right to use the driveway for access meant the whole  driveway. While, if the driveway was the size of Murrayfield, keeping a teaspoon in the corner would clearly not be objectionable, the presence of one or more parked cars on the driveway was said not to be “teaspoon de minimis”;  they were of the view that parking is not allowed because the primary purpose of the driveway is access. 

The Donalds accepted that they sometimes parked on the servitude area. They argued, however, that this has no material interference with the exercise of the access right, as it is still possible for the Doolans to get to and from their home. The grant of a servitude right across the Donalds' land does not deprive them of ownership, and their right to park on the area in question flows from ownership. Servitude rights have to be exercised in a way that causes minimum disruption to the burdened owner's use of their own land. If that were not the case, a servitude would sterilise a burdened owner's right to use the land. 


The Court was not persuaded by the Doolans' arguments. It was noted that the purpose of the servitude right is clear: it is for access and egress only. It does not remove or restrict the Donalds' ownership of the land, provided access is not blocked or substantially impeded. The Sheriff could not find support in the wording of the deed of servitude for the proposition that the benefited owners are entitled to use every inch of the driveway, and that the burdened owners could be said to be infringing that right by having a car occupy part of it, in a way which does not impede access. To think of the right of access as being akin to joint ownership of the driveway is “quite wrong.” The pursuers simply have permission to use a road which is owned by the defenders. 


Interesting questions of law arise from this disagreement. Among them, does a right of access over a specified area mean the benefited proprietor has the right to use the entire area without exception (even for a teaspoon)? This decision confirms that the answer is no. It demonstrates and reiterates the general principle that a servitude must not be so extensive as to deprive the burdened owner of the effective use of their land. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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