Case Report: (1900) 2 F 699

Key points: Servitude right of access – obligation to repair road – terms of conveyance – perpetual/short-term burdens on land.

The facts: Allan sold the lands of Aros in Mull by a conveyance containing a reservation of ”ingress and egress” in his own favour over an existing road, the expense of maintaining this road to be borne equally by Allan and his disponee (i.e. the person who purchased the lands). This declaration was not declared a ‘real burden’ on the lands (i.e. the obligation was not a perpetual one). At the time of the case, the lands of Aros had been sold on by the original disponee to McLachlan.

Decision: As the obligation to pay a half share of the cost of repair and upkeep of the road was a personal contract between the seller and the original purchaser, it did not bind McLachlan, who was not the immediate purchaser but a subsequent owner of the land burdened with the right of access.

Comments: This was an Action by a proprietor who had sold land and retained access over it in his own favour. He did not impose on the future owners of the land burdened with the right of access any valid permanent obligation to pay part of the cost of upkeep of the access route. Hence Common Law applied, and the obligation to repair fell on the person using the access (Allan) and not the landowner (McLachlan).

Case referred to: Tennant v Napier Smith’s Trustees (1888) 15 R 671 (Not in Ken).