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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10649
Experience:  30 years as a practising solicitor.
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I live in a mid-terrace house. Together with one neighbour

Resolved Question:

I live in a mid-terrace house. Together with one neighbour I have a "right in common" of a passageway leading from the front to the back of our house. Yesterday I arrived home from work to find my neighbour is having external cladding applied to his house and this includes this passageway. The overall width of the passageway is 107 cm but this cladding has reduced this to 94 cm with further work to be done. All this is without any permission being sought from me or even any notification of this work being planned.

On the land register entry the passageway is covered with the following text:

"(One) A right in common with the proprietors of the adjoining subjects, aforesaid in and to the footpath tinted yellow on the said Plan, with a right of access to the subjects in this Title at all times for pedestrian traffic only over the said footpath; (Two) a servitude right of passage at all times for pedestrian traffic only by way of the passageway or pend between ground and first floor level"

I am rather unhappy at the reduction in width at this common area. What, if anything can I do to have the passageway restored to its prior condition?

Thanks
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.

You have a servitude right of access, therefore not a right of ownership. Who owns the passageway?
Customer: replied 3 years ago.

My understanding is the passageway is under joint responsibility between myself and my neighbour. The passageway is shown in blue on the Land Registry document.


 


The first text already shown to you is from the description section of the Land Register:


 


"a servitude right of passage at all times for pedestrian traffic only by way of the passageway or pend between ground and first floor level on that part of the said adjoining subjects shown tinted blue on the said Plan."


 


The second text is from the Burdens section:


 


"The feuars shall be responsible in all time coming for a one-half share cost of maintaining and repairing... (b) the passageway or pend between ground and first floor level on that part of the adjoining subjects **neighbour's address**, aforesaid tinted blue on the said Plan."


 


If I have a half-share responsibility for any maintenance work then presumably I have a share of ownership, thus a right to a say in what work is carried out in that area?

Expert:  JGM replied 3 years ago.
This is a little confusing as you can't have a servitude right of access over something you own. I suspect you have a right of access and also an obligation of maintaining and repairing.

However it is the owner that dictates what is to be done as regards XXXXX XXXXX repairing.

You can insist that your neighbour reinstates to the original on the bias that:

1. The owner hasn't sanctioned the work.

2. The nature of the work restricts the servitude right.

It would be useful if you could ace the owner, however. It would normally be the grantor of the title deed from which you have quoted or their successors in title.

Happy to discuss further.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10649
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Expert:  JGM replied 3 years ago.
Typing errors:

...on the basis that....

....trace the owner....

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