SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

 

A1173/04

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

 

in the cause

 

DANIEL WILLIAM APPS and JANICE APPS

Pursuers and Respondents

 

against

 

WILLIAM GRANT SINCLAIR and CHRISTINE SINCLAIR

Defenders and Appellants

 

__________________

 

 

Act: Francis, Advocate, instructed by Gibson & Spears, Dow & Son, Kirkcaldy

Alt: McPhate, Morgans, Solicitors, Dunfermline

 

 

KIRKCALDY, 23 February 2006. The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 30 May 2005 complained of; certifies the appeal as suitable for the employment of junior counsel; finds the defenders and appellants liable to the pursuers and respondents in the expenses of the appeal and the debate before the sheriff; allows accounts thereof to be given in and remits the same, when lodged, to the auditor of court to tax and report; remits to the sheriff to proceed as accords.

 

 

 

 

NOTE:

 

Factual Background

 

[1] The parties to this action are adjoining proprietors of subjects in High Street, Dysart. The action concerns a dispute about an area of ground which gives access to both properties (hereinafter referred to as "the mutual access way"). The factual background to the dispute is concisely described by the sheriff in his note and I gratefully adopt his description of it.

 

[2] The two properties served by the mutual access way were until 1989 held on the same title. They comprised one property on which was built the dwellinghouse presently owned and occupied by the defenders and appellants. In 1989 the then owner of the whole subjects sold the part of the subjects on which the appellants' dwellinghouse stands and retained the remainder of the subjects with a view to erecting another dwellinghouse on that area. The deed giving effect to that transaction, being a disposition by James Graham Greig in favour of James Duncan dated 12^th and recorded in the Division of the General Register of Sasines for the County of Fife on 21^st both days of June 1989, contained the following provision in its dispositive clause providing that the subjects were being disponed

 

"together with (First) a right in common with me and my successors as proprietors of the subjects to the north-east of the subjects hereby disponed being retained by me (hereinafter referred to as "said retained subjects") to the mutual accessway delineated and coloured blue on the said plan with access thereover on all necessary occasions."

 

[3] Mr Duncan sold the subjects he had acquired to the appellants in 1994. So far as the subjects retained by Mr Greig in 1989 are concerned, a house was indeed built on these in or around 1990, or possibly some time thereafter (planning permission being granted in 1990). In 1998 that house and the whole retained subjects were sold by Mr Greig to a Mr and Mrs Lashford from whom the present respondents purchased these subjects in January 2003.

 

[4] The other factual matter which it is relevant to note for present purposes is that, due to various topographical factors, the only access to the appellants' subjects is over the mutual access way whereas the respondents enjoy access directly onto Dysart High Street from the front of their property where there is a hard standing with room to park four cars.

 

Nature of the proceedings

 

[5] The action appears to have been provoked by the appellants' attempts to restrict the respondents' use of the mutual access way. The pursuers and respondents seek a declarator of a right of common property in respect of the said mutual access way and interdict against the appellants from interfering with their exercise of that right. On the other hand the defenders and appellants have counterclaimed seeking a declarator that the respondents' rights of access are restricted in a manner that it is unnecessary to specify at this stage.

 

[6] It appears that during the course of the debate before the sheriff parties agreed that it was unnecessary to resolve the question of the ownership of the mutual access way. However at the appeal counsel for the appellants stated that he now accepted that the respondents' first crave was well founded and that the mutual access way was owned by both parties in common.

 

Submissions of the appellants

 

[7] In that state of affairs counsel for the appellants submitted that the measure of the use to which the co-proprietors were entitled to put the property in question was its ordinary use. It followed that either co-proprietor could prevent any extraordinary use. Reference in this regard was made to Bell's Principles paragraph 1075 which set out a number of established rules in relation to the management of common property, including the rule that one proprietor "may prevent any extraordinary use of the subject that may be attempted without his consent."

 

[8] Counsel submitted that whether a use was extraordinary was to be judged partly by reference to the nature of the property and partly by its historic use. Reference in this regard was made to the Stair Encyclopaedia Volume 18 paragraph 24 and Gordon Scottish Land Law paragraph 15.15. He submitted that these references were underpinned by the authority of Wilson v Pattie 1829 7S 316.

 

[9] Counsel also relied on a passage in Bell's Principles at paragraph 1086 that: "Where neighbouring owners or tenants have a common interest in anything, as in a road giving a common access ... their rights are ruled ... by the titles constituting their rights, as interpreted "by law or equity." Any one of the community is entitled to maintain the existing state of possession against the others." This passage had been approved by the Lord President in Grant v Heriot's Trust 1906 8F 647 at 659.

 

[10] Counsel next referred to Rafique v Amin 1997 SLT 1385 at 1387H et seq which adopted Bell's treatment of the nature of common property. He drew attention to the court's view (adverse to his position) that the rights of common proprietors were not governed by equitable considerations (page 1388J) where the common property was not subject to division and sale. He conceded that, in the present case, an action of division and sale of the mutual access way could not be brought because of the nature of the property in question. He submitted however that the parties also had a common interest in the mutual access way and this was supported by the comments of the Lord President in Grant v Heriot's Trust at pages 658 and 659. Reference was also made to the Governors of George Watson's Hospital v Cormack 1888 11R 320 as supporting the view that, where the titles do not define the use to which property may be put, it was necessary to have regard to what was its historic use.

 

[11] Finally, in relation to what was provided for in the titles, counsel accepted the sheriff's view that if (contrary to his primary opinion) the clause in the titles applied to both parties, it only operated to exclude excessive, abnormal or frivolous use of the access way. He submitted however that a proof was required to determine what was or was not abnormal.

 

Submissions of the respondents

 

[12] In responding to these submissions, the solicitor for the respondents submitted that the key question was what constituted ordinary and extraordinary use of the mutual access way. Wilson v Pattie did not support the need to look at past use in answering such questions. That case was only authority for the proposition that an obviously extraordinary use of property had become an ordinary use by virtue of its acceptance over a long period of time.

 

[13] By contrast, what the appellants sought to achieve in the present case was a restriction of access across property that was by its very nature an access way. The mere fact that it was an access way meant that an ordinary use of the property was to allow access.

 

[14] He submitted that any reference to historic use was only relevant in those cases in which it was sought to bring an extraordinary use within the ambit of what was ordinary and it had no part to play in qualifying what would be regarded as the normal use of the property in question.

 

[15] So far as concerned the title to the property he submitted that the title deeds provided all that one needed for determining what the parties were entitled to do. The effect of the conveyance in 1989, which hived off the property now owned by the appellants, was to put both proprietors on an equal footing in relation to the mutual access way, each having the right to do anything on that way which fell within the description of ordinary use.

 

[16] He adopted the sheriff's view that the provision for access "on all necessary occasions" applied only to the appellants but even if it applied to the respondents it should be no more restrictive for them than for the appellants. In any event it was questionable whether there was any need to have referred to a grant of access at all given that both parties had a right of common property.

 

Discussion

 

[17] It is clear from the foregoing summary of the submissions of parties and acknowledged by counsel that the focus of the argument on appeal has in certain important respects differed from the focus of the argument before the sheriff.

 

[18] Both parties are now at one in submitting that the mutual access way is the common property of both and I have taken this agreed position as the starting point for this discussion without entering upon any consideration of whether that position is sound.

 

[19] The nature of common property is described in Bell's Principles para 1072 as follows:

 

"Common property is a right of ownership vested pro indiviso in two or more persons, all being equally entitled to enjoy the uses and services derivable from the subject, and the consent of all being requisite in the management, alteration or disposal of the subject. This common and undivided right is continued either by necessity, if a subject belonging to several be indivisible, or voluntarily, if the subject be divisible, until it shall be divided."

 

[20] Bell then refers to the rules which have been established to deal with difficulties that may arise in the course of the management and administration of the common property, included among which is the rule that one co-proprietor may prevent any "extraordinary use of the subject that may be attempted without his consent." (para 1075). It would seem therefore that the question of how land in common ownership may be possessed is a question of management and administration. In Rafique v Amin the Inner House re-affirmed with some emphasis the absolute nature of the right of veto which all co-proprietors enjoy in the control or management of the property (sup.cit at p.1388B-F) and from the context of the discussion in that case this would seem to extend to questions of use. However it is equally clear from Bell's primary description of the nature of common property that the default setting is that each co-proprietor is entitled to possess the entire property and to make ordinary use of it. Given Bell's specific stipulation that the consent of all co-proprietors is required in respect of extraordinary use of the property it must follow that the right of veto does not extend to the ordinary use of that property and that is implicitly clear from the actual decision in Rafique v Amin.

 

[21] The author of the article on Co-ownership in the Stair Encyclopaedia (Vol 18 para 24) expresses the view that co-owners may come to an agreement about the nature and extent of the use to be made of the property held in common, while raising the question whether such agreement may be terminable at will. As a generality I see no difficulty with that proposition but, given the inherent right of a co-proprietor to make ordinary use of the property in question, it seems to me that something beyond the manner in which the property is actually used from time to time would be required to instruct a restriction or abandonment of that right.

 

[22] Counsel for the appellants placed considerable reliance upon the statement in the Stair Encyclopaedia (Vol 18 para 24) that the dividing line between ordinary and extraordinary use will depend partly on the nature of the property and partly also on its recent history. In applying that statement to the circumstances of the present case however he appeared to overlook the reason that the author of that article gives for admitting consideration of recent history, namely that a use which begins its life as "extraordinary" may, by passage of time, come to be accepted as "ordinary". That seems to be the ratio of Wilson v Pattie and of the few other authorities referred to in the article, which the author notes as the only reported decisions on this question. It is not suggested however that historic use may be relied upon to restrict a use which would otherwise be considered an ordinary use of the property in question.

 

[23] In Gordon's Scottish Land Law para 15-15 one finds a similar reference to past practice as a measure of what constitutes ordinary use. However two of the authorities cited in support of that statement deal with circumstances in which an extraordinary use has become ordinary by passage of time and the third (Governors of George Watson's Hospital v Cormack) is not a case of common property at all. It does not seem to me therefore that the author is saying anything different to what has been said in the Stair Encyclopaedia.

 

[24] Accordingly, in my view, in the absence of agreement to the contrary, the ordinary use of common property ought primarily to be judged by reference to the nature of that property. This is consistent with the approach in Rafique v Amin, in which the court was able without enquiry to hold that the use of a common stair as a fire escape and the use of an existing chimney flue for the ducting of a ventilation system were ordinary uses of common property.

 

[25] The extent, if any, to which the characteristics of common property may be affected by considerations relevant to the different species of right which is common interest is not entirely clear. It seems to have been assumed on both sides of the bar that identical issues arose whether one approached the issue from the perspective of the common proprietor or from the perspective of those who merely had a common interest in the property in question. This assumption has some support from the opinion of the Lord President in Grant v Heriot's Trust which dealt with what was described as the familiar instance of the laying out of squares, the property of which remains in the superior, and yet each of the feuars of individual properties in the square has a common interest in it. The Lord President took the view (page 659) that the same result in law followed whether the feuars were common proprietors of the square or merely had a common interest in it. On the other hand in Rafique v Amin, in factual circumstances which appear analogous to those in Grant v Heriot's Trust, the court explicitly stated that the case did not concern common interest.

 

[26] While counsel for the appellants stated that he did not depart from reliance upon a case based on common interest and while submitting that common ownership did not necessarily give rise to the creation of common interest, he did not examine the proper relationship of the one to the other and appeared content to base his appeal on the proposition that ordinary use of common property could not be determined without resort to evidence of historic use.

 

[27] If it is to be suggested that common interest has any distinct significance in the present case it is perhaps only because of the view expressed in Governors of George Watson's Hospital v Cormack that, in the absence of provision in the titles, the rights of those having merely a common interest in subjects are to be measured by the facts of past possession and administration. It was not clear to me whether that was a basis upon which counsel for the appellants sought to support the relevance of averments of past possession. However the obvious point of distinction between that case and one of common ownership is that a conveyance of common property carries with it the inherent right to make ordinary use of that property. To that extent at least the title does define the use to which the property may be put.

 

[28] Standing the approach of counsel for the appellants however, it is perhaps sufficient to indicate that, having identified the extent of the rights of common proprietors in accordance with the approach set out by Bell at paras 1072 and 1075 of his Principles, I am not persuaded that, in the particular circumstances in which they have arisen in the present case, such rights may then be qualified by overlaying an approach which may be appropriate to a consideration merely of common interest.

 

[29] Turning then to the particular circumstances of this case, in my opinion the solicitor for the respondents was well founded in his submission that the property in question is by its very nature an access way and that accordingly an ordinary use of it is to afford access over it to the respective properties of the common proprietors. This is entirely in accord with the sheriff's view that "the whole raison d'etre of creating the mutual access way was to provide access to both properties." (page 17 of note) It follows that, in the absence of agreement to the contrary, the respondents are entitled to use the mutual access way for that purpose. Accordingly, insofar as the appellants rely on historic possession of the mutual access way to define the extent of the respondents' rights over that way, the averments of such historic possession are irrelevant to support the crave of the counterclaim.

 

[30] The qualification that I have attached however admits of the possibility that parties may agree a departure from what I have described as the default setting for use of common property. In this case there is no suggestion that any such agreement exists beyond the terms of the titles and specifically the provision that access over the mutual access way is to be available "on all necessary occasions." The question therefore is whether that provision amounts to an agreed restriction on the rights which are inherent in the grant of common property which has been given in respect of the mutual access way.

 

[31] This question essentially involves a matter of construction of the titles. Although there was some discussion before the sheriff of the principles of construction drawn from cases such as Investors Compensation Scheme Ltd v West Bromwich Building Society (1998 1WLR 896) no such discussion took place at the appeal, no doubt for good and proper reasons. For the avoidance of doubt however it does not seem to me that there is any legitimate ground upon which one could construe the terms of the titles by reference to the extent of use to which the common proprietors put the mutual access way in the years following the date of the title deed in question.

 

[32] As the learned sheriff has pointed out, the words "with access thereover on all necessary occasions" is separate from, although ancillary to, the substantive right being conveyed, namely the right of common property in the mutual access way. To this may be added the observation that the word "with" suggests something additional to the substantive right and not something restrictive of it. Given my view that the substantive right of common property carries with it the right of access as an ordinary use of the property, in my opinion the phrase under consideration is wholly inept if it was intended to operate as a restriction of that ordinary use. Furthermore, as the sheriff also points out, such a restriction would be inconsistent with the provision for equal sharing of the expense of keeping in repair the mutual access way.

 

[33] On this approach it may be questioned whether the phrase "with access thereover on all necessary occasions" adds anything material to what is already conveyed as part of the substantive right of common property. It seemed to me in the course of the discussion at the appeal that both parties came to doubt whether it did and I share that doubt. If, on the other hand and contrary to my view, the words of this phrase are to be read as words of restriction, counsel for the appellants did not challenge the sheriff's interpretation of "necessary" as excluding "merely excessive, abnormal or frivolous use of the accessway". Assuming the validity of this interpretation, it does not follow however that evidence of historic use is necessary for the purpose of defining what will constitute excessive, abnormal or frivolous use. On the contrary it is the ordinary use of the property, as already defined, against which excessive, abnormal or frivolous use falls to be measured. Accordingly in my opinion evidence of historic use is no less irrelevant to the definition of excessive, abnormal or frivolous use as is it is to the definition of ordinary use.

 

[34] The terms of the amended Note of Appeal make it clear that the appellants' complaint relates to the sheriff's conclusion that averments of historic possession or past user were irrelevant to support the counterclaim. In seeking recall of the sheriff's interlocutor the appellants confine themselves to an argument that this conclusion was wrong. As I have reached the same conclusion, albeit on somewhat different grounds, it follows that the appeal must be refused.

 

[35] For the sake of completeness it should be noted that my conclusions in relation to the issues that have now been raised on appeal might be thought to have implications for the relevancy of the defences in the principal action, at least in part. Notwithstanding this was recognised by the solicitor for the respondents, no motion was made that I should make any order in relation to the pleas in law in the principal action.

 

[36] Parties were agreed that the expenses of the appeal should follow success. The sheriff has not had the opportunity of dealing with the expenses of the debate and parties invited me to deal with them as well. Parties were agreed that the defenders and appellants should be found liable in the expenses of the debate in the event that the appeal was refused. Although it is now academic, counsel sought certification of the appeal as suitable for the employment of junior counsel. The solicitor for the respondents offered no objection and in my view it is appropriate to do so.