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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9344
Experience:  28 years as a practising solicitor.
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Hi, I have a question regarings Scotts Law land and property: My

Customer Question

Hi, I have a question regarings Scotts Law land and property:
My mother-in-law has a property (an old croft) which is surrounded by someone else land. The feu disposition grants " a heritable and irredeemable non-exclusive servitude right of access to pedestrians and vehicular traffic... subject to the feuar (my mother-in-law) contributing to the maintenance and renewal of this access to present standards for farm and agricultural purposes only according to the use by the feuar". Now, next to the road also runs a small river (burn) and that has flooded in spring the access road and washed it away (in some places 1 m below ground level). The river is runs through the land of the "Superior", i.e. the person who owns surrounding land, and needed clearing. The Superior had been made aware of this. Because the river is blocked in places the flood waters had such force, that it washed out the road. In any case, who now has to pay to get the road back to its normal state, as it was before. Where would I have to look in Scots law to find out more about that? The feu disposition does not declare a percentage of contribution one has to make, so how much, if any, could the "Superior" ask for repair of road?
Please point me in the right direction where to look. I appreciate your answer.
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.

The clause in the title appears badly drafted. It is always better to specify exactly who is responsible for what and to what degree, particularly where damage can be caused to a road which is more than wear and tear.

However the clause your mother is stuck with means that she has to contribute depending on the number of users.

If there is just her and the superior then the share is split equally. If there are others holding a servitude then they share the costs as well.

See Servitudes and Rights of Way by Professors Cusine and Paisley published by W. Green, in particular paragraph 14.68.

I hope this helps. Please leave a positive response so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9344
Experience: 28 years as a practising solicitor.
JGM and 2 other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.

Thanks for your answer and I am happy with it. Although I was not quite clear in my question.


Does it make any difference to paying for the renewal of the road when it was clearly the river (not just normal traffic) that damaged the road beyond usage. I guess I am wandering whether the landowner here has a duty of care to renew the road to a usable state.

Expert:  JGM replied 3 years ago.
No it doesn't make a difference what caused the problem. The cost of repair and renewal is still dealt with in accordance with the titles.

Whether there is any duty on the owner to renew a road which has become entirely destroyed is another matter which the title deeds should regulate? If there is no provision for reinstatement or renewal and the road is not in fact reinstated then the servitude could end up being extinguished by reason of abandonment.

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