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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10917
Experience:  30 years as a practising solicitor.
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I have a query regarding rights of access by my neighbour on

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I have a query regarding rights of access by my neighbour on my driveway.
A few years ago my house and my neighbours barn were served by my driveway (title deeds say it belongs to me, but neighbour has access to barn). Since the deed was drawn up my neighbour is now living on his land (in a caravan with planning permission). As the deed doesn't allow access to residential property using my drive, my neighbour has built his own driveway.
This would be fine, however speaking to my neighbour he says that he can still use my drive if he wants to as long as he isn't access his residence - is this true ? He has recently changed the use of his land to commercial equestrian (which includes the barn) and I don't want to have vehicles using my drive for commercial (or any other) reasons.
Can you advise what I can do ?
Thank you for your question.

Your neighbour still has the right to use the access to the barn but only insofar as the title deeds permit usage. If he changes the nature of the barn so as to increase the usage from, for example, him, his family and employees to, for example, the general public this is an increase of the intended purpose of the servitude and would not be permitted.

If this became an issue you could apply to the court for a declarator and order preventing your neighbour from using the access for anything other than the title deeds permit.

Happy to discuss further.

I hope this helps. Please remember to leave a positive rating so that I am credited for my time.
Customer: replied 3 years ago.

Hi JGM,


 


Thanks for your prompt reply. So if I can confirm that the barn is being used in connection with my neighbours commercial venture, then I can apply to the Court - is that right ?


Would it be me that applies for the declarator or will I need to employ a Solicitor - if the latter, can you recommend one in my area (are you allowed to do that ?).


Ideally I would like to remove my neighbours access rights from my Title Deeds altogether - I'm hoping that the course of action above will be the way to do this.


Thanks,


Andy

If the barn is being used for the commercial venture as a result of which the usage of the access is substantially increased then you have a case to state before the court.

These cases a notoriously complex and you will need a solicitor. We can't recommend anyone as its against the site rules but you can go to www.lawscot.org.uk and contact the Law Society for a recommendation.

In the absence of agreement, an application to the Lands Tribunal would be required to extinguish a title condition. I'm not certain that this would be possible in this instance.

It would have to be looked at in the context of the act, the considerations of which are as follows:

"Title Conditions (Scotland) Act 2003

Section 100
Factors to which the Lands Tribunal are to have regard in determining applications etc.

The factors mentioned in section 98 of this Act are –

a. any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties);
b. the extent to which the condition –
i. confers benefit on the benefited property; or
ii. where there is no benefited property, confers benefit on the public;
c. the extent to which the condition impedes enjoyment of the burdened property;
d. if the condition is an obligation to do something, how –
i. practicable; or
ii. costly,
it is to comply with the condition;
e. the length of time which has elapsed since the condition was created;
f. the purpose of the title condition;
g. whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents;
h. whether the owner of the burdened property is willing to pay compensation;
i. if the application is under section 90(1)(b)(ii) of this Act, the purpose for which the land is being acquired by the person proposing to register the conveyance; and
j. any other factor which the Lands Tribunal consider to be material."
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