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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11554
Experience:  30 years as a practising solicitor.
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MadamI wish to get some advice on behalf of a

Resolved Question:

Dear Sir/Madam
I wish to get some advice on behalf of a group of residents. It is about the use of a private road that runs along the back of all (5) of these houses and was always thought to be owned by the local council. It is used to access a plot that until recently housed an Ambulance Station, and it was only when this facility was vacated and sold it was realised that the road was private. The new owner has now advised all the residents that its his road and we can't use it - it not so nice terms! He has erected an entrance sign saying "access road no parking" and has had double yellow lines marked on it.
Now my understanding was that if a road has been used for certain activities such as rubbish collection, oil/coal deliveries, taxi drop offs, resident parking etc., over a period of time, then there is a so-called "prescriptive right" for this to continue, provided that it does not obstruct the owners use of this road. We have evidence from long-term residents (27 years and 40 years) that this is how this road has been used as there is no vehicular access to the front of these properties and one is mid-terrace.
I queries therefore are:-
1. Do we have the right to continue to use this road as previously stated?
2. Do the signs and markings have any enforceable validity?
Thank you very much in anticipation, for your assistance with this.
Kind Regards
Margaret Nicolson
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
1. If there is evidence of a prescriptive use by the owners of the five houses for more than 20 years then a prescriptive servitude can be argued.
2. The signs have no enforceable validity.
I hope this helps. Please leave a positive response so that I am credited for my time.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.

Dear JGM

Many thanks for your response - it is most reassuring. Can you tell though how to enact a prescriptive servitude? Will this involve engaging a solicitor or can we just carry on as per normal and if he berates us we can quote this particular right of law?

Sorry to be a bother with more questions but we really do not want confrontation and would rather have some meaningful dialogue with the new owner now rather than drag things out.

Thanks again for your help

Expert:  JGM replied 2 years ago.
A prescriptive servitude is not registered. It just exists and is established by evidence, usually, affidavit evidence of people in the know who have had more than 20 years experience of use. The Registers of Scotland will in certain circumstances register such a servitude, usually on a sale of a property, if the sellers can provide such evidence but it's not necessary.
In the case of argument the court would determine the existence and scope of the servitude.