Shop Fronts And Servitudes

Author:Mr Craig Blackwood
Profession:Biggart Baillie
 
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The recent decision in Romano v Standard Commercial Property

Securities Ltd and Another revisits the possibility of

recognising new servitudes that was the subject of last year's

House of Lords decision in Moncrieff v Jamieson.

In Romano, the owner of a shop fronting onto Buchanan

Street in Glasgow sought a court order declaring that he had a

servitude right to attach a shop front and fascia onto the external

wall which was owned in common by all the proprietors of the

building.

There was a Compulsory Purchase Order procedure underway and

there was a discussion of whether this would undermine the action

as the Lands Tribunal could decide in due course whether a

servitude existed and what its value might be. The Court dismissed

this argument ? the fact that the servitude may or may

not be considered by the Lands Tribunal did not affect the present

action.

The Court acknowledged that for a servitude right to be valid,

it must be a servitude known to the law or at least similar in

nature. The leading textbook authority in this area considers that

there is no recognised servitude of signage or shop front, and in

Romano the Court agreed. Conversely, in Moncrieff

the House of Lords were more open to recognising a servitude right

of parking and held that the right to park on the proprietor's

neighbouring property was ancillary to a right of access, although

much rested on the "particular and unusual circumstances"

of the case. In Moncrieff the Court considered that if a

servitude of parking could exist as an ancillary right, it could

also exist as a standalone right. However in Romano there

was no suggestion that the servitude of signage was ancillary to

any other right, which was the principal reason that the Court was

unwilling to recognise it. There is authority that there can be a

servitude right to erect a sign from the 1888 case of Cunningham v

Stewart, however in that case the decision turned on the fact that

the right to affix a sign had been strictly ancillary to an

existing right of access along a close. Indeed, in Romano

it was recognised that shop signs are not a new thing and if a

servitude right of signage did exist, it would have been recognised

by the authorities centuries ago.

Servitudes can also be created by prescription, meaning,

broadly, if the servitude has been possessed for a continuous

period of 20 years openly, peaceably and without judicial

interruption then it cannot be challenged. In Romano this argument

was advanced...

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