The Firm of Johnson, Thomas and Thomas and others v Smith and others

Servitude – Servitude right of vehicular parking. Sheriff Court: Allowing a proof before answer in an action in which the pursuers sought declarator of a servitude right to park vehicles on a strip of land neighbouring their land, together with accessory rights of vehicular and pedestrian access thereto, the court held that a 'free-standing' servitude right of vehicular parking (being a right that was not ancillary or accessory to a primary right of way over the supposed servient tenement) could competently exist in Scots law, such a supposed servitude right, prima facie unlimited as to the number and type of vehicles to be parked, and potentially covering the whole of the burdened property at all times, was not repugnant with ownership of the servient tenement (or contrary to s 76(2) of the Title Conditions (Scotland) Act 2003), and the declaratory crave was competent and provided adequate specification of the right sought to be declared.

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