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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11554
Experience:  30 years as a practising solicitor.
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Do I need a deed of servitude to sell my house (in Scotland)? I

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Do I need a deed of servitude to sell my house (in Scotland)?

I don't have a specific right of access in my title; however, a right of access has been established by virtue of the law of prescription ie. access has been used and not challenged for a continuous period in excess of 30 years. I believe this is as legally valid as if it were contained within the title deed itself. I also have a letter from the landowner which 'grants a heritable and irredeemable servitude right of pedestrian and vehicular access to and from the house'.

I am being told by the buyers solicitor that this deed of servitude is a requirement in confirming the sale. My own solicitor is say that it isn't. The cost of this is approximately £2500. I do not want to go to this cost if I don't need to.
Thank you for your question.

A prescriptive right of servitude is legally valid; the difference is that it can sometimes be difficult to prove. However as you have a letter from the land owner that is less of a problem. Further, if you can get an affidavit from you and previous owners confirming the right of access over the prescriptive period, a title indemnity policy should also be able to be purchased for about £300 to cover the purchaser.

Your solicitor is correct. A Deed of Servitude should not be needed. And I have to say that £2500 is an astronomic price for what should in fact be a very simple deed. Unless the landowner is holding you to ransom for a price. The solicitors' fees and outlays should be nothing like that.

I hope this helps. Please leave a positive response so that I am credited for my time.
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