Hi, I live in Scotland and have planning permission to build a new house in my garden. This new house will have access rights from a shared private lane (although it also has a public right of way for pedestrians). The lane is shared with 5 other properties and in our deeds it states that we all need to pay an equal share for maintenance of the lane as required. The new house needs new drainage which will need to go down the length of the lane. My question is - do I need permission from all houses to dig up the lane for the pipework? If someone refuses what are my options? Many thanks in advance.
Thank you for your question.Who owns the lane? Is it the six properties as a right of access is not always the same as a right of ownership?However your title deeds will almost certainly contain a servitude right of access to lay pipes and cables etc along the lane to your property so it is unlikely that your neighbours can deny permission for as long as the new house is within the title of your existing property.Problems may be encountered in the future if you sell off the new house as it will not necessarily inherit the same rights of access as your property has at present without the consent of the other proprietors.As far as the laying of pipes and cables to your existing property is concerned, however, the deeds should allow this and you should check the deeds carefully for the exact wording and revert to me with any further queries.I hope this helps. Please leave a positive response so that I am credited for my time.
Hi, thanks for this. There is nothing specific in the deeds about a servitude right to lay pipes etc in the lane. I am looking to sell the plot with planning permission (not develop it myself). From what you are saying, it sounds like the purchaser of the land will have problems laying the pipe and also access to the site itself if all other property owners do not give their permission(which is likely as some of them objected to the planning application)? I don't know who owns the lane, but am assuming it's split between the 6 other property owners.Thanks.
Do your titles contain a share of the lane? The wording will be long the lines of a one sixth pro indiviso share of the lane along with the proprietors of a, b , etcJGM41103.879418831
It just states that the subjects tinted pink and yellow (ie my house and gardens) on the title plan, together with access to the subjects in this title along the access road tinted brown on said plan. Layer on it states that said disposers and their foresaids shall be bound to pay a share of the cost of maintenance of the access road tinted brown along with the other users of the said road.
Does it say anywhere that you part own the access lane or simply own access to the subjects.If you have a Land Certificate the wording of section A could be quite important.
No it doesn't say anywhere that I part own the road. In section A (Property Section) of the Land Register of Scotland title, it just says access to the subjects along the access road. Presume this is bad news for the laying of drainage pipe and access to the new site if I were to sell it off (and some of the other house owners object)?
I'm afraid so.The new house cannot piggy back on the rights of access that the existing house has. The reason for this is that, without consent, it is not permitted to increase the usage of a right of access, ie, from six houses to seven.
Thanks for all your help with this. Just one last question - do you know how I can find out who/what actually owns the road?
You can ask a professional searcher to find out. See for example Millar & Bryce.
27 years as a practising solicitor.
Hello again, I have a follow up question I hope you can help with. Looking into this a bit more, it's my understanding that my land is a 'dominant tenement' with a right of access to a 'servient tenement' (the lane). I've been told that if you split a dominant tenement into two pieces of land and sell off the second piece, this second piece will inherit the same rights as the original dominant tenement and therefore will too have access to the servient tenement (the lane). Can you confirm if this is the case in Scottish Law? Also, could it be argued that the right of access includes the right to services and therefore a right to install new services (drainage) for the new plot?Many thanks.
The first point you make is correct in theory however there is a principal in Scots law that the use of a servitude has to be made with minimum inconvenience to the servient tenement. In addition the exercise of the servitude must cause no increase in the acceptable burden on the servient tenement which is the burden in the contemplation of the parties creating the servitude.In other words a new house may cause an increase in the usage of the servitude and the owner of the servient tenement could object to that increased use.As far as drainage is concerned this cannot be implied from a servitude right of access.The authority on this subject is Servitudes and Rights of Way by Professors Cusine and Paisley. If you can get hold of this book, I would refer your to Chapters 12 and 13.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).