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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Moss Bros Group Plc v Scottish Mutual Assurance Plc [2001] ScotCS 73 (23 March 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/73.html Cite as: [2001] ScotCS 73

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Introduction

[1] The pursuers and the defenders are heritable proprietors of adjoining subjects in Renfield Street, Glasgow. In 1983 the pursuers' predecessors in title, Fairdale Textiles Limited ("Fairdale"), and the defenders (who were then The Scottish Mutual Assurance Society) entered into a Minute of Agreement providing for reciprocal rights of egress for fire escape purposes. This action is concerned with the question whether the rights thereby constituted in favour of Fairdale transmitted in favour of the pursuers and are transmissible in favour of their singular successors. The pursuers accordingly seek declarator, primarily upon the assertion that the rights created by the Minute of Agreement were real rights, and alternatively on the basis that the rights conferred on their predecessors, if merely personal, have been assigned to and are assignable by them.

[2] The case was appointed to debate, and by agreement between the parties the scope of the debate was restricted to the relevancy of the parties' respective pleadings in relation to the first conclusion, which is the conclusion for declarator that the right is a real right. The defenders have a plea to the relevancy and specification of the pursuers' pleadings. In the course of the debate I granted the pursuers' unopposed motion to amend by adding a plea to the relevancy and specification of the defences.

[3] The full terms of the first conclusion are as follows:

[4] The Minute of Agreement (No. 6/1 of process) began: "WHEREAS Fairdale are heritable proprietors of the shop subjects at the corner of St Vincent Street and Renfield Street, Glasgow ...", and continued with a full conveyancing description of those subjects. The narrative then continued: "AND WHEREAS Scottish Mutual are heritable proprietors of ALL and WHOLE the shop and basement premises known as Twenty-one Renfield Street ...", and set out a description of those premises too.

[5] The Minute of Agreement then continued with a narrative of the circumstances in which the parties to it had seen fit to enter into it:

[6] The substantive rights and obligations were then constituted in the following terms:

[7] The Minute of Agreement then concluded:

The Minute of Agreement was recorded in the Register of Sasines, as contemplated in the entry clause, on 7 October 1983.

[8] The pursuers narrate in articles 6 and 7 of the condescendence the practical circumstances in which the dispute between them and the defenders as to whether the Minute of Agreement has continuing effect has arisen. The pursuers aver that, in the course of the negotiation of missives for the sale of the ground and basement shop at 23-25 Renfield Street, the prospective purchaser refused to proceed with the purchase in the absence of confirmation that the rights of egress under the Minute of Agreement would devolve on them on sale of the premises. The defenders deny that the right of egress presently exists or is capable of transmission to singular successors. On 23 May 2000 the defenders' agents served notice on the pursuers purporting to prohibit them from using the fire escape route referred to in the Minute of Agreement. On 29 August 2000 the pursuers received notice of an application by the defenders for listed building consent to block up the doorways through which the right of egress allows passage.

[9] There was very little dispute between the parties as to the proper approach to the issue between them. That issue turns on whether the Minute of Agreement should be construed as conferring on each party to it a praedial servitude over the property of the other, or on the other hand as conferring mere personal contractual rights. Both Mr Connal for the defenders and Mr Moynihan for the pursuers made reference to the discussion of the matter in Cusine and Paisley, Servitudes and Rights of Way, paragraphs 2.53 et seq. as a convenient summary of the law, and it is convenient to quote briefly from that work:

Although further reference was made in the course of submissions to specific passages dealing with one or other of the factors identified, the foregoing quotation is sufficient to set the agreed legal context of the submissions which I heard.

[10] For the defenders Mr Connal submitted that it could not reasonably be inferred from the terms of the Minute of Agreement that the parties thereto intended the creation of reciprocal servitude rights. He relied in particular on two factors, namely

1. the fact that the Minute of Agreement was not described as a deed of servitude and did not anywhere use the term "servitude"; and
2. the fact that the Minute of Agreement did not mention the parties' singular successors or bear to bind them.

He accepted that neither the use of the term "servitude" nor an express provision binding singular successors was essential for the creation of a servitude, but nevertheless relied in particular on those factors in support of the contention that the parties did not intend to create servitudes. Following the defenders' Note of Argument (No. 10 of process) he also made the further points:

3. that there was no irritancy provision in the Minute of Agreement;
4. that there was no obligation to insert the rights of egress in future transmissions of the properties in question; and
5. that there was no express indication that the rights of egress were intended to be perpetual.

He was, however, unable to explain how, in the context of a deed of the nature of the Minute of Agreement, there could have been an irritancy clause. Moreover, he recognised that, while a declaration that the rights were intended as perpetual would support the conclusion that a servitude rather than a personal right was intended, the absence of such a declaration was less obviously supportive of the contrary conclusion.

[11] Mr Connal then turned to comment on the points made in the pursuers' Note of Argument (No. 9 of process). In relation to paragraph 1, he accepted that the use of the word "servitude" was not essential, but submitted that its absence supported the conclusion that the Minute of Agreement was not intended to constitute servitudes. In relation to paragraph 2, he accepted that the purpose of the right was a relevant factor, and that the mere fact that the right of egress was given for a limited purpose (namely as a fire escape) did not preclude its being a servitude. In relation to paragraph 3.1, he accepted that the parties had entered into the Minute of Agreement on the narrative that they were heritable proprietors of their respective properties, but submitted that that was of less significance than the absence of reference to singular successors. In relation to paragraph 3.2, Mr Connal pointed out that the extent to which the reciprocal rights of egress were necessary in order to secure compliance with fire regulations was not a matter of admission, and was therefore not a matter that could be taken into account in support of the pursuers' contentions at debate. He suggested that there was a basis, in the provision laying on the party using the right of egress liability to pay for any damage caused, for inferring that there may have been an element of delectus personae. In relation to paragraph 3.3, while accepting that no time limit was expressed in relation to the rights of egress, he submitted that the presence or absence of a time limit was neutral, because there might be a servitude for a limited period of time. In relation to paragraph 3.4, he submitted that the fact that the Minute of Agreement provided for recording did not make the rights of egress into servitudes, because recording did not make real that which was not real. He did accept, however, that the provision for recording did tend to support the inference that the intention was to create real rights. In relation to paragraph 3.5, he submitted that the warrandice clause, albeit something normally found in a deed creating real rights, was no more than a guarantee of the granter's title, which was equally important in the context of the creation of personal rights of egress. In relation to paragraph 4, he submitted that the way in which the parties had acted after the Minute of Agreement was entered into was irrelevant. It was therefore of no moment that the defenders had subsequently in various deeds referred to the Minute of Agreement as if it conferred real rights.

[12] Mr Moynihan, for the pursuers, accepted that the appropriate approach to the issue between the parties was, as indicated by Cusine and Paisley, loc. cit., to identify the factors which cast light on whether the parties to the Minute of Agreement had intended to create praedial servitudes or merely personal rights, and in so far as those factors pointed in different directions, to balance them against each other in order to reach a conclusion. He pointed out, however, that none of the favourable factors identified in paragraph 2.55 and none of the adverse factors identified in paragraph 2.56 were present in this case. He submitted that the absence of a favourable factor (such as the use of the word "servitude") did not constitute an adverse factor (as was implicitly suggested in Mr Connal's submissions) but rather was properly to be regarded as neutral (Cusine and Paisley, paragraph 2.60; Ferguson v Tennant 1978 SC (HL) 19 per Lord Fraser of Tullybelton at 65).

[13] Mr Moynihan submitted that it was important to understand that the Minute of Agreement created reciprocal rights and obligations. He suggested that in the context of such reciprocal rights and obligations created between the proprietors of adjoining commercial subjects, it was inherently improbable that all the parties had contemplated were personal rights which would fall on the first sale of either of the two shops. He accepted, however, although the point was unfavourable to his argument, that it would be wrong to read the second sentence of paragraph 2.77 as indicating that there was a presumption in favour of a right being praedial rather than personal; that would be contrary to the presumption in favour of freedom.

[14] The factors on which Mr Moynihan placed reliance in submitting that the rights of egress created by the Minute of Agreement were intended as praedial servitudes rather than rights personal to the contracting parties were principally, but not exclusively, drawn from an analysis of the Minute of Agreement. He drew attention first to the fact that the narrative part of the deed not only set out that the contracting parties were the heritable proprietors of the adjoining shop premises, but went on to give a full conveyancing description of their respective subjects. That suggested strongly that the deed was concerned with rights benefiting the heritable subjects as such rather than with rights benefiting the contracting parties personally. The purpose of the conveyancing descriptions could be seen to be the identification of the dominant and servient tenements in the way necessary for the valid creation of servitudes. Such descriptions would be quite unnecessary for the constitution of merely personal rights.

[15] Secondly, Mr Moynihan submitted that the purpose of the creation of the rights was a significant factor in favour of the creation of servitude in the circumstances of the present case. He referred to Cusine and Paisley, at paragraph 2.74, where it is said:

Here the deed, in the passage quoted in paragraph [5] above, set out clearly the purpose for which the rights were created. It narrated the forming of the openings in the mutual gable between the properties. It narrated the purpose of doing so, namely to enable fire escape egress from each shop through the other. That purpose related to the enjoyment of the respective heritable subjects as such, not to matters personal to the contracting parties. The grant of the reciprocal rights of egress followed immediately on that statement of purpose. It was in turn immediately followed by conditions which reinforced the statement of purpose, by limiting the rights to use in emergency (or to meet the requirements of the Firemaster). It would sit ill with that declared purpose if the reciprocal rights thus created were intended to take a form which would mean that they would come to an end as soon as one or other of the contracting parties parted with ownership. The absence of any stated duration for the right, and the fact that its purpose was a continuing one, pointed in favour of a servitude (Cusine and Paisley, paragraph 2.75). That a servitude for the purpose of providing a fire escape was a phenomenon recognised in conveyancing practice was evidenced by the statement in Cusine and Paisley at paragraph 2.97:

[16] The presence of an entry clause was, Mr Moynihan submitted, a further clear indication of an intention to create a real right. The terminology of "entry" was not normally used in the context of personal contracts. Likewise, the fact that the contracting parties expressly contemplated (in the entry clause) that the Minute of Agreement would be recorded in the Register of Sasines was in the circumstances of this case a clear indication of the intention that the rights created be real rather than personal (see Cusine and Paisley, paragraph 2.83). Registration in the Books of Council and Session would have been the more appropriate course if personal rights had been all that were in contemplation. Finally, so far as the terms of the deed were concerned, the presence of the warrandice clause was a clear indication of the intention to create real rights. Warrandice:

(Gordon, Scottish Land Law, second edition, paragraph 12-65).

[17] Mr Moynihan also made reference to certain provisions of the Fire Precautions Act 1971 as illustrative of the statutory background to the creation the rights of egress provided for in the Minute of Agreement, but he recognised that it was not admitted by the defenders that the reciprocal rights were necessary to secure compliance with the statutory requirements. He therefore accepted that if the issue could not be decided without determination of whether such necessity existed, proof would be required.

[18] The other respect in which Mr Moynihan sought to go beyond the four corners of the Minute of Agreement was in his submission that support for the proposition that the contracting parties had intended the creation of praedial servitudes could be found in the references to the Minute of Agreement in the Notice of Title recorded by the defenders (No. 6/7 of process) and the other deeds referred to in Article 4 of the condescendence. It was, he submitted, legitimate to place reliance on these references as evidence of the defenders' intention (Cusine and Paisley, paragraph 2.81).

[19] In my opinion my task is to construe the Minute of Agreement to see whether it is appropriate to infer that the intention of the parties to it was (a) to confer on each other reciprocal praedial servitudes which would run with the land and bind their singular successors, or (b) to create mere contractual rights which would be personal to them and would therefore cease to have effect as soon as one or other of them ceased to be heritable proprietor of the subjects in question.

[20] I find the analysis of factors set out in Cusine and Paisley, loc. cit., a helpful indication of the considerations which may be of assistance to me in carrying out that task. It seems to me, however, that it would be wrong to treat the factors referred to as if they were a mere checklist. The presence of a favourable factor would tend to support the conclusion that what was intended was the creation of a servitude. The presence of an adverse factor would tend to support the conclusion that all that was intended was a personal right. The absence of a favourable factor, such as the use of the word "servitude", may be, as Lord Fraser said in Ferguson v Tennant at 65, "of no consequence" in the sense that it does not preclude the contention that the right created was nevertheless a servitude, but I do not consider that Mr Moynihan was correct in submitting that such absence is wholly neutral. In my opinion, Mr Connal was entitled to point to the failure to use the term "servitude" and the failure to make express provision that the rights were to bind singular successors as factors which tend to support the inference that it was not intended that the Minute of Agreement create servitudes (Robertson v Hossack 1995 SLT 291). Those factors are not, however, in my view conclusive, and must be weighed in the balance with such factors as there may be pointing to the opposite conclusion.

[21] The other factors identified in the defenders' Note of Argument are, in my view, of little assistance. I do not see, and Mr Connal was unable to explain, how an irritancy clause might have found an appropriate place in the Minute of Agreement. The absence of an obligation to insert the provision expressly in future transmissions likewise, in my view, does not help the defenders. I can see the force of the argument that the presence of such an obligation would tend to point to the intention to create rights binding on singular successors (Cusine and Paisley, paragraph 2.67). On the other hand, as those authors also point out in the same paragraph, if the rights have been duly constituted as praedial servitudes, such a provision is unnecessary, since a servitude will bind singular successors without being expressly inserted in the transmission to them. It therefore seems to me that the absence of a clause binding the parties to insert the obligation in future transmissions of the servient tenement is truly neutral. Similarly, I accept the force of the point that an express declaration that the rights were intended to be perpetual would support the creation of a servitude, but regard the absence of such a declaration as neutral.

[22] I find support for the inference that the intention of the parties to the Minute of Agreement was to create praedial servitudes in the following considerations:

(3) that the rights were designed to enhance the enjoyment of the respective

(4) that the nature of the rights is such that it is more likely that the parties would

These considerations combine, in my opinion, to point to the conclusion that the parties to the Minute of Agreement intended to create real rather than personal rights and obligations.

[23] I find further support for that conclusion in other aspects of the form of the Minute of Agreement. I have already mentioned the incorporation of full conveyancing descriptions of the subjects. In addition, it seems to me, the inclusion of an entry clause, the provision indicating that it was contemplated that the deed would be recorded in the Register of Sasines rather than registered in the Books of Council and Session, and the presence of a warrandice clause, are all factors tending to support the inference that the intention was to create real rather than personal rights and obligations. I express no view on whether the inclusion of the warrandice clause was appropriate, but its presence, appropriate or not, seems to me to be indicative of the parties' views as to the nature of the rights which they were creating.

[24] In light of these considerations, I have come to the conclusion that on balance the proper inference from the circumstances is that the parties to the Minute of Agreement did intend to create reciprocal praedial servitudes. In reaching that conclusion, I have not found it necessary to rely on the references to the Minute of Agreement in subsequent deeds. I reserve my opinion on whether it would have been legitimate to take that consideration into account. I have also found it unnecessary to ascertain whether the absence of the reciprocal rights of egress would place the parties or either of them in difficulty in complying with statutory requirements in relation to fire escapes. I am therefore able to reach a conclusion on the pleadings, without inquiry into that point.

[25] I shall therefore sustain the pursuers' sixth plea-in-law (added by amendment in the course of the debate), repel the defences and grant decree de plano in terms of the first conclusion of the summons. In that case, the alternative second conclusion does not arise for consideration. Mr Moynihan did not seek interdict in terms of the third conclusion, and I shall therefore grant decree of dismissal in respect of that conclusion.