In these increasingly health conscious times is it time for servitudes for recreational purposes?

Servitudes

A servitude is a right that a landowner has over neighbouring property which allows the holder of the servitude (or benefitted proprietor) to do something with another person’s property, which would not normally be allowed. Whether created by a specific grant, by reservation, or indeed through uninterrupted use for the prescriptive period of 20 years the servitude right runs with the land. Common examples include:

  1. Pedestrian and vehicular access; or
  2. The right to run pipes and cables over neighbouring property.

Servitudes were once restricted to a limited set of rights but since the introduction of the Title Conditions (Scotland) Act 2003 they have become an expanding class of rights which now includes such rights as parking. As a result of the case summarised below the nature of servitudes could widen to include recreational purposes.

In 2017 a court decided the case Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd (2017).  An English case but still persuasive here in Scotland given the similarities of easements and servitudes. This case considered rights granted in favour of Regency Villas as part of a transfer of timeshare units. The rights permitted the timeshare titleholders “to use the swimming pool, golf course, squash courts, tennis courts, gardens and any other sporting or recreational facilities” on the neighbouring estate. Following problems with finding the moneys for upkeep of the facilities the Estate sought to charge the timeshare proprietors for the use of the Estate facilities.

The key question the court had to determine was whether the rights, when granted, were anything more than personal rights? If they were classed as personal rights then they would have been relevant only for as long as the original neighbouring parties owned the land. Servitude rights unlike personal rights are automatically transferred to successors in title and in effect run with the land.

The trial judge was mindful when determining the nature of the right. It was important to look at the nature and use of the benefitted property. In this case the rights enhanced the amenity and enjoyment of the timeshare units and were deemed to be easements (servitudes in Scots Law). The case went all the way to the Court of Appeal who upheld the trial judge’s decision.

So is this case simply a positive for those persons who own hotels and timeshare facilities and who share rights over neighbouring property? Our view is that this decision and that of another English Court, in which decided it was possible to have an easement right to walk across and use neighbouring gardens for recreational use, opens the possibility for recreational servitudes being recognised and becoming more widespread in Scotland. There are many housing developments where open spaces are by design or default not conveyed as Common Property to all the homeowners on the relevant estate. Could homeowners now claim rights over such areas by virtue of a servitude right of recreation?

If you have any questions regarding servitudes, please don’t hesitate to contact our property team.

Servitudes

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