Court
House of Lords, United Kingdom
Citation
[2007] UKHL 42
Area of Law
Property Law — Servitudes (Scottish equivalent of easements) — Ancillary rights — Right of vehicular access — Right to park — Enforcement by interdict
Moncrieff v Jamieson is a seminal Scottish property law case decided by the House of Lords in 2007. The dispute concerned the extent of servitude rights granted to a dominant tenement over a servient tenement, specifically whether a right of vehicular access also included a right to park on the servient land. This case clarified important principles relating to ancillary rights in servitudes and the exercise of easements in Scotland and, by extension, in English law.
Facts of Moncrieff v Jamieson
The respondents, Moncrieff (M), owned a property located between a steep escarpment and the foreshore, which was inaccessible to vehicles directly from the public road. The appellant, Jamieson (J), owned the intervening land between the public road and the respondents’ property. Historically, the property now owned by Moncrieff had been part of Jamieson’s land.
In 1973, a disposition conveyed the property to Moncrieff with a servitude right granting access from the public road across Jamieson’s land. This servitude allowed both pedestrian and vehicular access. Furthermore, the conveyance included rights to stop vehicles temporarily on the servient land to turn, load or unload goods, and to drop off or pick up passengers.
The respondents asserted that, as part of this servitude right, there was also an ancillary right to park vehicles on Jamieson’s land. This claim was based on the reasoning that parking was reasonably incidental and necessary to the effective enjoyment of the right of access. The appellant disputed the existence of such a parking right and argued that Scottish law did not recognise a servitude of parking.
The Sheriff Court agreed with the respondents and issued a declarator confirming their right to park on the servient tenement as accessory to the right of access. Additionally, the court granted a permanent interdict preventing Jamieson from interfering with this right. The Court of Session upheld this decision on appeal.
Jamieson subsequently appealed to the House of Lords, contending that the law did not support a servitude right to park, the interdict was unnecessary, and the terms of the interdict were too vague to provide clear guidance.
Issues
The House of Lords in Moncrieff v Jamieson was called upon to determine:
- Whether the servitude right of vehicular access conferred an ancillary right to park vehicles on the servient tenement.
- Whether such a right was necessary for the reasonable enjoyment of the dominant tenement.
- The proper construction of the express grant of servitude rights, including whether ancillary rights not exercised at the date of grant could nonetheless be implied.
- Whether the interdict issued by the lower courts was appropriate and enforceable.
- The extent to which servitudes may restrict the rights of the servient owner without amounting to exclusive possession.
Legal Principles and Analysis
Ancillary Rights to Servitudes
The court affirmed that servitude rights, like easements in English law, may include ancillary rights necessary for the reasonable enjoyment of the dominant tenement. The key test for ancillary rights is necessity: the right must be reasonably incidental to the exercise and enjoyment of the primary servitude. Parking, while not explicitly granted, may be ancillary if it facilitates the use of the right of access.
Construction of Express Grants in Servitudes
The House of Lords clarified that the express grant of a right of access should be construed with regard to the circumstances existing at the time of grant (in this case, 1973). However, it is not essential that ancillary rights be in actual use at the grant date; it suffices that they were in reasonable contemplation at that time. This follows the principle in Ewart v Cochrane (1861), which held that rights necessary for the comfortable use and enjoyment of the servitude could be recognised even if not exercised initially.
Right to Park as Ancillary to Vehicular Access
The court found that, in the unusual circumstances of this case—where the dominant property could not be reached by vehicle except over the servient land—the right to park was reasonably incidental to the enjoyment of the servitude. This right allowed vehicles to be left temporarily in a manner that was essential to the convenient and comfortable use of the dominant tenement.
Civiliter Principle and Exclusivity
While servitudes and easements must be exercised civiliter—that is, without interfering unreasonably with the servient owner’s rights or amounting to exclusive possession—the court took a pragmatic and sympathetic approach towards servitudes that substantially restrict the servient owner, where necessary. It recognised that ancillary rights like parking may significantly impact the servient tenement but are justifiable if essential.
Enforcement and Interdicts
The court endorsed the lower courts’ decisions to grant declarators and interdicts to enforce the servitude rights, including ancillary parking rights. It found no difficulty in the practical enforcement of the interdict preventing Jamieson from interfering with the respondents’ parking rights.
Obiter Recognition of Servitude of Parking
Though not strictly necessary for the decision, the House of Lords acknowledged obiter that a servitude of parking could exist under Scottish law and that the equivalent easement of parking could be recognised under English law. This indicated an openness to evolving property law principles regarding the scope of easements and servitudes.
Moncrieff v Jamieson Judgement
The House of Lords dismissed the appeal by Jamieson. It held that the servitude right of vehicular access included an ancillary right to park vehicles on the servient tenement to the extent reasonably necessary for the enjoyment of the dominant property.
The court affirmed that such rights must be interpreted in light of the context and reasonable expectations of the parties at the time of the grant, and that ancillary rights need not have been actively exercised at the grant date to be recognised.
The interdict issued by the lower courts was upheld as an appropriate means of enforcing the servitude and ancillary rights, with no concerns over enforceability or clarity.
Conclusion
Moncrieff v Jamieson [2007] UKHL 42 remains a foundational authority on servitude rights, especially the recognition of ancillary rights such as parking. The House of Lords set a clear test of necessity and reasonable contemplation for ancillary rights and emphasised practical enforcement mechanisms.
The case affirms the principle that servitudes must be interpreted contextually, considering the needs and expectations of the parties and the nature of the dominant tenement. It strikes a pragmatic balance between enabling dominant owners reasonable use and protecting servient owners from undue interference, reflecting modern property law’s nuanced approach to rights over neighbouring land.
