Greg Sanders represented the defender in this property (servitude) case at Selkirk Sheriff Court.
The issue was whether the pursuers, as owners of Tower House, West Linton had a servitude right of access across the defender’s property being Braefoot Cottage, West Linton. Previously, both properties were on the same title being an Estate of about 30 acres with Braefoot Cottage in one corner of the Estate.
The case turned on whether or not the pursuers required the asserted servitude for the comfortable enjoyment of part of their land. Additionally, was there an implied right of access? Parties’ respective missives were silent on the matter.
At paragraph 25 of his judgment the learned Sheriff, referring to Paisley and Cusine’s “Servitudes and Rights of Way”, at 8.12, noted that the concept of an implied right of servitude was not without difficulty. In finding in favour of the defender the Sheriff derived considerable assistance from the leading case of ASA International Limited v Kashmiri Properties (Ireland) Limited and Tuli Investment [2016] CSIH70.