ASA International Ltd v Kashmiri Properties (Ireland) Ltd ([2016] CSIH 70) is a decision of the Inner House of the Court of Session (Scottish equivalent of the Court of Appeal) illustrating circumstances in which a servitude (Scottish equivalent of a wayleave) of access was held not to have been created by implied grant.
The parties were the owners of two neighbouring properties in Edinburgh's New Town, 6 and 7 Coates Crescent (above): originally town houses, they had long since been converted to offices. At the back of No 7 was a car park opening on to William Street South East Lane while the rear frontage of No 6 to the lane was occupied by a garage. You can see the site in Google Streetview here with No 7's car park nearer the camera and No 6's garage beyond.
Nos. 6 & 7 were in the same ownership from 1989 until October 1996 when No 6 (and a car park belonging to it behind No 9 Coates Crescent, also accessed off the lane) was sold off, the vendor retaining No 7. (Note in this regard what appear to be mistakes at various points in the judgement (e.g. para. [6]) in which the dates of the break off disposition (deed of conveyance) of No 6 are given as being in 1994 when 1996 must be intended (e.g. last line of para. [7]).)
The case concerned pedestrian access from No 6 to the lane at the rear. The evidence showed that, both before and after the separation of ownership of No 6 from No 7, occupants of No 6 going out to William Street or to its carpark behind No 9 found it more convenient to go through a gate in the party wall between Nos 6 & 7 (behind the car in the Google Streetview linked to above) and walk out to the lane through No 7's car park rather than through No 6's garage. The same went for occupants of No 6 when parking in the garage: due to restricted space, they found it easier after having parked their cars in it to go out on to the lane, round the outside of the garage through No 7's car park and into No 6 through the gate.
For reasons not disclosed, the owners of No 7 sought to prevent the occupants of No 6 walking through their (No 7's) car park. The owners of No 6 applied to the sheriff (Scottish equivalent of the County Court judge) for a declarator (court order declaring legal rights) that they had a servitude (wayleave) right of access through the car park which its owners could not prevent. However, as the break off disposition of No 6 did not contain an express servitude, and the two properties had not yet been in separate ownership for long enough to admit a servitude constituted by prescriptive possession (use "without a by-your-leave" for 20 years), the owners of No 6 were left with no option but to contend that a servitude of access through No 7's car park had been granted by implication when ownership of the two properties was separated.
The sheriff rejected the claim, whereupon the owners of No 6 appealed to the Inner House. The court focussed on the classic statement of servitudes granted by implication by Lord Chancellor Campbell in the 1861 House of Lords case Ewart v Cochrane:
[W]hen two properties are possessed by the same owner, and there has been a severance made of one part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant ... . When I say necessary, I do not mean so essentially necessary that the property could have no value without it; but necessary for its convenient and comfortable enjoyment, as it existed at the time of the grant.
The court noted that Lord Campbell's test for a servitude granted by implication involved two elements, both of which had to be present: (i) the access claimed had to have been in use before the properties were separated; and (ii) it had to be necessary for convenient and comfortable enjoyment of the putative dominant tenement (i.e. the property accessed). At Coates Crescent, element (i) was present so the case boiled down to whether No 6's continued access through No 7's car park was, in the words of Lord Campbell, "not ... so essentially necessary that the property could have no value without it; but necessary for its convenient and comfortable enjoyment ..." (The court pointed out that judicial dicta suggesting that any access which existed before severance was continued by implication - i.e. that only element (i) was necessary but not (ii) - were being read out of context.)
Having regard to the fact that the occupants of No 6 could get out to the lane by going through its own garage, less convenient though this appears to have been than bypassing it through No 7's car park, and that it wasn't too much of a hardship to get to No 6's car park behind No 9 or William Street by walking an extra 150 yards or so out the front door of No 6 and round by surrounding streets (Walker Street or Stafford Street), the Inner House had little difficulty in deciding that a servitude of access through No 7's car park was not implied.
Each case turns on its own facts and it can be hard to predict the result of application of broad principles to particular circumstances. But having said that, the decision is not surprising: if I'd been asked for my opinion, I'd have told No 6 I thought their claim a complete no-hoper. One wonders what imperative drove them into the expense of litigating to the Inner House.
I'd summarise by saying that the fact that an access would be "handy" (or, to use a word beloved of estate agents, "useful") is not enough for a servitude by implied grant.
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