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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11260
Experience:  30 years as a practising solicitor.
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I have a question regarding Servitude right of access

Customer Question

I have a question regarding Servitude right of access through my back garden.
I am an end terrace and my immediate neighbor has right of access via my front garden path which goes down the side of my house (my drive way). The path then proceeds from my back garden to his, directly in front of my rear kitchen window very close to the building itself. It is effectively the shortest route possible.
My question is as follows: I wish to in the next year or so build a large extension directly on the back of my property which will extend over this path. I would like to create a new path at the very bottom of my garden (approx 4 feet wide) and fence this off, creating an unrestricted passageway for my neighbor to use as he pleases. This would mean he has a path, I cant see him, he cant see me etc. It would mean the distance he has to walk round with his bins once a week has increased of course. Am I able to do this? If so, how do I go about getting permission and making it formal/le
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question. I am a Scots lawyer and will help you with this.
If the wording of the servitude is specific to a certain pathway or route, say with reference to a plan, then you and your neighbour should agree a variation of the servitude and that can be registered in the Land Register of Scotland.
If the servitude right is a general "access to the rear and side paths of the property...." then there is no need to do anything at all.
I hope this helps. Please remember to leave a positive rating so that I am credited for my time.
Customer: replied 2 years ago.
Hi. The servitude shows a defined pathway. My neighbor is a council tenant and I am privately owned. If my neighbor disagrees with what I propose to do (say for instance, he is unhappy at the increased distance of the path from Point A to B) what can I do, if anything?
Expert:  JGM replied 2 years ago.
Thanks for your response. The tenant is not relevant. The council, as owners, would have to consent. I suggest that if the planning application is granted, you go ahead, give the tenant an alternative route and if the tenant ever buys, the district surveyor would drawn up an alternative plan taking account of the new route.